JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

10 February 2000 (1)

(Association of the overseas countries and territories - Regulation (EC) No2352/97 - Regulation (EC) No 2494/97 - Application for annulment -Admissibility - OCT Decision - Safeguard measure - Causal link)

In Joined Cases T-32/98 and T-41/98,

Government of the Netherlands Antilles, represented by M.M. Slotboom and P.V.F.Bos, of the Rotterdam Bar, with an address for service in Luxembourg at theChambers of M. Loesch, 11 Rue Goethe,

applicant,

v

Commission of the European Communities, represented by T. van Rijn and P.J.Kuijper, Legal Advisers, acting as Agents, with an address for service inLuxembourg at the office of C. Gómez de la Cruz, of its Legal Service, WagnerCentre, Kirchberg,

defendant,

supported by

Kingdom of Spain, represented by N. Díaz Abad, Abogado del Estado, acting asAgent, with an address for service in Luxembourg at the Spanish Embassy, 4-6Boulevard Emmanuel Servais,

intervener,

APPLICATION, in Case T-32/98, for the annulment of Commission Regulation(EC) No 2352/97 of 27 November 1997 introducing specific measures in respect ofimports of rice originating in the overseas countries and territories (OJ 1997 L 326,p. 21) and, in Case T-41/98, for the annulment of Commission Regulation (EC) No2494/97 of 12 December 1997 on the issuing of import licences for rice fallingwithin CN code 1006 and originating in the overseas countries and territories underthe specific measures introduced by Regulation (EC) No 2352/97 (OJ 1997 L 343,p. 17),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of: M. Jaeger, President, K. Lenaerts and J. Azizi, Judges,

Registrar: A. Mair, Administrator,

having regard to the written procedure and further to the hearing on 21 September1999,

gives the following

Judgment

Legal background

1.

    The Netherlands comprises, in addition to its European territory, the NetherlandsAntilles and the Island of Aruba. Both of the latter form part of the overseascountries and territories ('OCTs‘) listed in Annex IV to the EC Treaty (now, afteramendment, Annex II), the association of which with the Community is governedby Part Four of that Treaty.

Relevant provisions of the Treaty

2.

    The second paragraph of Article 131 of the EC Treaty (now, after amendment,Article 182 EC) states that '[t]he purpose of association shall be to promote theeconomic and social development of the [OCTs] and to establish close economicrelations between them and the Community as a whole‘.

3.

    Pursuant to Article 132(1) of the EC Treaty (now Article 183(1) EC), 'MemberStates shall apply to their trade with the countries and territories the sametreatment as they accord each other pursuant to this Treaty‘.

4.

    Article 133(1) of the EC Treaty (now, after amendment, Article 184(1) (EC)provides that '[c]ustoms duties on imports into the Member States of goodsoriginating in the [OCTs] shall be completely abolished in conformity with theprogressive abolition of customs duties between Member States in accordance withthe provisions of this Treaty‘.

5.

    Article 134 of the EC Treaty (now Article 185 EC), for its part, provides that '[i]fthe level of the duties applicable to goods from a third country on entry into [anOCT] is liable, when the provisions of Article 133(1) have been applied, to causedeflections of trade to the detriment of any Member State, the latter may requestthe Commission to propose to the other Member States the measures needed toremedy the situation‘.

6.

    Under Article 136 of the EC Treaty (now, after amendment, Article 187 EC), theCouncil is to determine the details of and procedure for the association of theOCTs with the Community.

The OCT Decision, the decision amending it at mid-term and various measuresadopted in 1997

7.

    Under Article 136 of the Treaty, on 25 July 1991 the Council adopted Decision91/482/EEC on the association of the OCTs with the European EconomicCommunity (OJ 1991 L 263, p. 1, hereinafter 'the OCT Decision‘).

8.

    Articles 101(1) and 102 of the OCT Decision provided, respectively, until amendedon 30 November 1997: 'Products originating in the OCT shall be imported into theCommunity free of customs duties and charges having equivalent effect.

...

The Community shall not apply to imports of products originating in the OCT anyquantitative restrictions or measures having equivalent effect.‘

9.

    Article 109(1) of the OCT Decision provides that the Commission may, inaccordance with the procedure specified in Annex IV to that decision, take specialmeasures in the form of safeguard measures in relation to imports of productsoriginating in the OCTs. Articles 109(2) and 110 of the OCT Decision deal withthe conditions which such measures must satisfy.

10.

    Pursuant to Article 240 thereof, the OCT Decision is to be applicable for a periodof ten years from 1 March 1990. That article also provides, in paragraph 3, that,before the end of the first five years, the Council, acting unanimously on a proposalfrom the Commission, is to establish, in addition to the financial assistance from theCommunity for the second five-year period, where necessary any amendments toprovisions of the OCT Decision desired by the competent authorities of the OCTsor proposed by the Commission on the basis of its own experience or as a resultof amendments under negotiation between the Community and the ACP (African,Caribbean and Pacific) States. Any amendments thus made are to take the formof a 'mid-term amendment decision‘.

11.

    On 24 November 1997, the Council adopted, pursuant to Article 240(3), citedabove, Decision 97/803/EC amending the OCT Decision at mid-term (OJ 1997 L329, p. 50, hereinafter 'the mid-term amendment decision‘). That decision limitsimports of rice and sugar from the OCTs into the Community.

12.

    The applicant brought proceedings for annulment of the mid-term amendmentdecision before the Court of First Instance (Case T-310/97). The President of theArrondissementsrechtbank (District Court), The Hague sought a preliminary rulingfrom the Court of Justice under Article 177 of the EC Treaty (now Article 234 EC)on the validity of that decision (Case C-17/98). By order of 16 November 1998 inCase T-310/97 Netherlands Antilles v Council [1998] ECR II-4131, the Court of FirstInstance stayed proceedings in Case T-310/97 until such time as the Court ofJustice delivers judgment in Case C-17/98.

13.

    In the course of 1997, the application of the OCT Decision prompted theCommission to take certain measures under Article 109 of the OCT Decision, inparticular in relation to imports of rice.

14.

    Thus, by Council Regulation (EC) No 304/97 of 17 February 1997 introducingsafeguard measures in respect of imports of rice originating in the OCTs (OJ 1997L 51, p. 1), the Council adopted the first safeguard measures limiting imports intothe Community of rice originating in the OCTs between 1 January 1997 and 30April 1997. The Kingdom of the Netherlands and the company Antillean RiceMills brought proceedings for the annulment of that regulation respectively beforethe Court of Justice (Case C-110/97) and before the Court of First Instance (CaseT-41/97). By order of 16 November 1998 in Case T-41/97 Antillean Rice Mills vCouncil [1998] ECR II-4117, the Court of First Instance declined jurisdiction inCase T-41/97 in favour of the Court of Justice in order to enable the latter to ruleon the applications for annulment.

15.

    By its Regulation (EC) No 1036/97 of 2 June 1997 introducing safeguard measuresin respect of imports of rice originating in the OCTs (OJ 1997 L 151, p. 8), theCouncil adopted fresh safeguard measures limiting imports into the Community ofrice originating in the OCTs between 1 May 1997 and 30 November 1997. Theapplicant and the Kingdom of the Netherlands instituted proceedings for annulmentof that regulation respectively before the Court of First Instance (T-179/97) andbefore the Court of Justice (Case C-301/97). By order of 16 November 1998 inJoined Cases T-163/97 and T-179/97 Netherlands Antilles v Council and Commission[1998] ECR II-4123, the Court of First Instance also declined jurisdiction in CaseT-179/97 in favour of the Court of Justice.

16.

    By its Regulation (EC) No 2352/97 of 27 November 1997 introducing specificmeasures in respect of imports of rice originating in the OCTs (OJ 1997 L 326,p. 21), the Commission adopted a third series of safeguard measures requiring theissue of import licences for rice originating in the OCTs and the provision of abank guarantee corresponding to 50% of the customs duties normally applicableto the volume of rice for which the import licences are required. That regulationalso provided that, if a monthly volume of applications for certificates equivalentto 13 300 tonnes of rice were exceeded and there was a risk of serious disturbancesof the Community market, the Commission would adopt certain measures inrespect of applications in excess of that threshold of 13 300 tonnes. It entered intoforce on 1 December 1997.

17.

    On 12 December 1997, the Commission adopted Regulation (EC) No 2494/97 onthe issuing of import licences for rice falling within CN Code 1006 and originatingin the OCTs under the specific measures introduced by Regulation No 2352/97 (OJ1997 L 343, p. 17). In particular, it provided that the issue of import licences wasto cease as from 3 December 1997 and suspended the submission of import licenceapplications until 31 December 1997.

18.

    Regulation No 2352/97 was repealed by Article 14 of Commission Regulation (EC)No 2603/97 of 16 December 1997 laying down the detailed implementing rules forimports of rice originating in the ACP countries or the OCTs (OJ 1997 L 351,p. 22), in implementation of Article 108a of the OCT Decision, as amended. Theapplicant also instituted proceedings for the annulment of that regulation beforethe Court of First Instance (Case T-52/98). By order of 11 February 1999 in CaseT-52/98 Netherlands Antilles v Commission, not published in the ECR, the Court ofFirst Instance stayed proceedings in Case T-52/98 until such time as the Court ofJustice delivers judgment in Case C-17/98.

Procedure

19.

    By application lodged at the Registry of the Court of First Instance on 24 February1998 the applicant brought proceedings for the annulment of Regulation No2352/97 (Case T-32/98).

20.

    By application lodged at the Registry of the Court of First Instance on 6 March1988 the applicant brought proceedings for the annulment of Regulation No2494/97 (Case T-41/98).

21.

    By documents lodged at the Registry of the Court of First Instance on 28 May and11 June 1998 the Kingdom of Spain sought leave under Article 115 of the Rulesof Procedure to intervene in support of the Commission in Cases T-32/98 andT-41/98. By orders of the President of the Fourth Chamber of the Court of FirstInstance of 1 and 10 July 1998, leave was granted in both cases. On 31 July and6 August 1998 the Kingdom of Spain lodged its statements in intervention in thetwo cases, on which the parties had an opportunity to submit their observations.

22.

    On hearing the Report of the Judge-Rapporteur, the Court of First Instance (ThirdChamber) decided to open the oral procedure without any preparatory inquiries. By way of measures of organisation of procedure, provided for in Article 64 of theRules of Procedure, certain written questions were addressed to the parties, andthey replied within the time allowed.

23.

    The parties presented oral argument and answered questions put to them by theCourt at the hearing in open court held, in both cases, on 21 September 1999.

24.

    After hearing the views of the parties on this point, the Court of First Instancedecided to join the two cases for the purposes of the judgment.

Forms of order sought

25.

    In Case T-32/98, the applicant claims that the Court of First Instance should:

-    annul Regulation No 2352/97;

-    order the Commission to pay the costs.

26.

    In Case T-41/98, the applicant claims that the Court of First Instance should:

-    annul Regulation No 2494/97;

-    order the Commission to pay the costs.

27.

    The Commission contends in Cases T-32/98 and T-41/98 that the Court of FirstInstance should:

-    declare the application inadmissible or, at least, unfounded;

-    order the applicant to pay the costs.

28.

    The intervener contends in Cases T-32/98 and T-41/98 that the Court of FirstInstance should:

-    declare the application inadmissible for lack of locus standi;

-    in the alternative, dismiss the application as unfounded;

-    order the applicant to pay the costs.

The admissibility of the intervention

29.

    The applicant submits that the Court of First Instance cannot take account of theobservations made by the Kingdom of Spain in its statements in intervention. Itclaims that, as far as Community law is concerned, there is no link between theNetherlands Antilles and that Member State. The Kingdom of the Netherlandsratified the Treaty of Accession of the Kingdom of Spain only in respect of itsEuropean territory.

30.

    The Court accepts that the orders of 1 and 10 July 1998, by which the Kingdom ofSpain was granted leave to intervene in support of the Commission in CasesT-32/98 and T-41/98, do not preclude re-examination of the admissibility of itsintervention in the judgment bringing the proceedings to a conclusion (judgmentof the Court of Justice in Case C-234/92 P Shell v Commission [1999] ECR I-0000,paragraph 25).

31.

    However, contrary to the applicant's assertion, the Kingdom of Spain's interventionin both cases is admissible. Under the first paragraph of Article 37 of the ECStatute of the Court of Justice, which applies to the Court of First Instance byvirtue of the first paragraph of Article 46 of that Statute, Member States areentitled to intervene in any proceedings before the Court of First Instance. Thefact that the Kingdom of the Netherlands ratified the Treaty of Accession of theKingdom of Spain only in respect of its European territory is not capable ofaffecting the latter's exercise of that right, which is vested in it by virtue of its statusas a Member State.

The admissibility of the applications

Arguments of the parties

32.

    Without formally raising any objections of inadmissibility under Article 114(1) ofthe Rules of Procedure, the Commission contends that the applications areinadmissible on three grounds.

33.

    First, the Commission contends that the applicant is not entitled to base itsapplications on the second paragraph of Article 173 of the EC Treaty (now, afteramendment, the second paragraph of Article 230 EC). It refers to the order of theCourt of Justice in Case C-95/97 Région Wallonne v Commission [1997] ECR I-1787, paragraph 6, and adds that Part Four of the Treaty does not grant theNetherlands Antilles particular rights or impose particular obligations on them suchas to render their legal position comparable to that of the Member States. Theirrole in the decision-making process in the areas covered by Part Four of the Treatyis likewise not comparable to that of the institutions.

34.

    Second, the Commission contends that the applications are also inadmissible in sofar as they are based on the fourth paragraph of Article 173 of the Treaty. First,Regulations Nos 2352/97 and 2494/97 (hereinafter 'the contested regulations‘) arenot of direct concern to the applicant. Since the Netherlands Antilles are not, assuch, involved in trade in rice with the Community, the contested regulations canbe of concern to their government only to the extent to which undertakings in therice sector established on their territory are affected. Moreover, the contestedregulations are not of individual concern to the applicant. The Commission submitsthat the reference to the Netherlands Antilles in Annex IV to the Treaty is notdecisive. Nor does the applicant belong to a closed class of persons as defined inthe case-law (Case 25/62 Plaumann v Commission [1963] ECR 95), since thenumber and identity of the persons to whom the contested regulations apply wasnot definitively known at the time of their adoption. There are no specific mattersof fact or of law such as to distinguish the Netherlands Antilles from the otherOCTs. Each OCT thus, at least in theory, has an opportunity to process rice in thesame way as the Netherlands Antilles. The situation is different from thatprevailing in 1993, when only the Netherlands Antilles exported rice to theCommunity, because, since 1996, Montserrat has started exporting rice as well. The Commission also cites an extract from the order of the Court of First Instancein Case T-238/97 Comunidad Autónoma de Cantabria v Council [1998] ECR II-2271, paragraphs 49 and 50).

35.

    Moreover, the express reference to the Netherlands Antilles in the seventh recitalin the preamble to Regulation No 2352/97 is merely intended to indicate that thedecision by the Ministers of Economic Affairs and Finance of that countryestablishing a minimum export price for rice does not make it superfluous to adoptthe contested safeguard measures. It cannot be inferred from this that theapplicant is individually concerned by that regulation. Similarly, Article 109 of theOCT Decision requires the Commission to take account of the consequences whichsafeguard measures may have for the economy of all the OCTs, and not only forthat of the Netherlands Antilles. A quantitative criterion based on the volume ofrice exported to the Community likewise does not satisfy the conditions foradmissibility laid down in the case-law.

36.

    Third, the Commission contends, first, that the applicant has not proved a sufficientinterest in bringing the present actions for annulment under the fourth paragraphof Article 173 of the Treaty. It states that the Netherlands Antilles are merely asubdivision of the Kingdom of the Netherlands, a country which is entitled to votewithin the Council. It therefore maintains that, in view of the place occupied bythe applicant's representatives within the Government of the Netherlands, theNetherlands Antilles cannot be disassociated from the Member State of which theyform an integral part when the latter expresses its views on a matter concerning theOCTs.

37.

    The Commission then observes that the Kingdom of the Netherlands isindependently entitled to bring an action under the second paragraph of Article 173of the Treaty and that, unlike Regulations Nos 304/97 and 1036/97, the contestedregulations have not been the subject of an action for annulment by it (seeparagraphs 14 and 15 above).

38.

    Finally, the Commission states that, in order to defend the OCTs' interests, aspecial procedure for appeals to the Council by the Member States with which theOCTs are associated has been established (Article 1(5) of Annex IV to the OCTDecision). The OCT Decision thus entrusts defence of the OCTs' interests to thoseMember States.

39.

    In its rejoinder, the Commission states that it is not desirable to accept that theapplicant has an interest in bringing an action, since that would be tantamount toconceding that the applicant could call in question before the Communityjudicature the balance of interests arrived at by the competent authorities of theKingdom of the Netherlands, that being, in this area, a matter for those authoritiesalone. The Court of First Instance confirmed that view of the matter in its orderin Comunidad Autónoma de Cantabria v Council, cited above. On the other hand,the situation was different in Case T-214/95 Vlaams Gewest v Commission [1998]ECR II-717, in so far as the contested Commission decision related to aid for whichsole competence attached to a federated entity of the Kingdom of Belgium. In thiscase, the Commission stresses that the various entities making up the Netherlandshave no powers of their own of that kind regarding the trading regime applicableto the OCTs.

40.

    The Kingdom of Spain also submits that the actions are inadmissible, in that theapplicant has no locus standi. It contends, in particular, that the applicant is notdirectly concerned by the contested regulations since measures to implement themhave yet to be taken.

41.

    The applicant rejects all the arguments put forward by the Commission andcontends that its actions are admissible by virtue of both the second and the fourthparagraphs of Article 173 of the Treaty.

Findings of the Court

42.

    As regards, first, the admissibility of the actions by reason of their being based onthe second paragraph of Article 173 of the Treaty, it must be borne in mind that,under Article 3 of Council Decision 88/591/ECSC, EEC, Euratom of 24 October1988 establishing a Court of First Instance of the European Communities (OJ 1988L 319, p. 1), as amended, the Court of First Instance has jurisdiction, at firstinstance, for actions for annulment based on the fourth paragraph of Article 173of the Treaty. On the other hand, only the Court of Justice has jurisdiction to hearapplications under the second paragraph of Article 173 of the Treaty by a MemberState, the Council or the Commission. Accordingly, if the applicant had considereditself entitled to rely on the latter provision of the Treaty in order to seekannulment of the contested regulations, it should have brought its actions beforethe Court of Justice.

43.

    In any event, it is clear from the general scheme of the Treaties that the conceptof a Member State, within the meaning of the institutional provisions thereof and,in particular, those relating to judicial remedies, only applies to the governmentauthorities of the Member States of the European Communities and cannot beextended to regional governments or self-governing communities, regardless of theextent of their powers (Vlaams Gewest v Commission, cited above, paragraph 28,the order in Comunidad Autónoma de Cantabria v Council, cited above, paragraph42, and the case-law cited therein, and the order of the Court of First Instance of23 October 1998 in Case T-609/97 Regione Puglia v Commission and Spain [1998]ECR II-4051, paragraph 16). The applicant therefore has no locus standi under thesecond paragraph of Article 173 of the Treaty.

44.

    As regards, next, the admissibility of the applications in so far as they are based onthe fourth paragraph of Article 173 of the Treaty, it must be borne in mind at theoutset that the provisions of the Treaty concerning the right of interested partiesto bring proceedings cannot be interpreted restrictively (see, in particular,Plaumann v Commission, cited above, at p. 107, and Joined Cases T-528/93,T-542/93, T-543/93 and T-546/93 Métropole Télévision and Others v Commission[1996] ECR II-649, paragraph 60).

45.

    It is common ground that the Netherlands Antilles constitute an autonomous entityendowed with legal personality under Netherlands law. A territorial unit of aMember State, endowed with legal personality under national law, may, inprinciple, bring an action for annulment under the fourth paragraph of Article 173of the Treaty, pursuant to which any natural or legal person may instituteproceedings against a decision which, although in the form of a regulation or adecision addressed to another person, is of direct and individual concern to theformer (order in Comunidad Autónoma de Cantabria v Council, cited above,paragraph 43).

46.

    Since the contested regulations are not decisions addressed to the applicant, withinthe meaning of the fourth paragraph of Article 173 of the Treaty, it is necessary todetermine whether they are measures of general application or if they must beregarded as decisions in the form of regulations. In order to determine whetheror not a measure is of general application, it must be assessed in the light of itscharacter and of the legal effects which it is intended to produce or actuallyproduces (Case 307/81 Alusuisse v Council and Commission [1982] ECR 3463,paragraph 8).

47.

    In this case, it is, admittedly, clear from the preamble to Regulation No 2352/97that the Commission, when adopting that measure, took account of the applicant'sattitude and, in particular, the fixing by it of a minimum export price. Similarly, inits written pleadings and at the hearing, the Commission has not denied that, whenthe contested regulations were adopted, it was aware that most imports of rice fromthe OCTs came from the Netherlands Antilles. However, it must be observed thatthe Commission did not adopt decisions relating only to imports of rice from thatsource. In fact, the Commission adopted measures of general applicationapplicable without distinction to imports of rice from all the OCTs.

48.

    Consequently, the contested regulations are, by their nature, of general applicationand do not constitute decisions within the meaning of Article 189 of the EC Treaty(now Article 249 EC).

49.

    It is nevertheless important to consider whether, even though the contestedregulations are of general application, the applicant may nevertheless be regardedas directly and individually concerned by them. The fact that a measure is ofgeneral application does not mean that it cannot be of direct and individualconcern to certain natural or legal persons (see Case C-309/89 Codorniu v Council[1994] ECR I-1853, paragraph 19, Joined Cases T-480/93 and T-483/93 AntilleanRice Mills and Others v Commission [1995] ECR II-2305, paragraph 66, and JoinedCases T-481/93 and T-484/93 Exporteurs in Levende Varkens and Others vCommission [1995] ECR II-2941, paragraph 50).

50.

    As regards, first, the question whether the contested regulations are of individualconcern to the applicant, it must be borne in mind that, for it to be possible for ameasure of general application adopted by a Community institution to be ofindividual concern to a natural or legal person, the latter must be affected by themeasure at issue by virtue of certain attributes which are peculiar to that personor circumstances must exist in which that person is differentiated from all otherpersons with regard to that measure (Plaumann v Commission, cited above, p. 107,Codorniu v Council, cited above, paragraph 20, Case T-12/93 CCE de Vittel andOthers v Commission [1995] ECR II-1247, paragraph 36, and Case T-135/96UEAPME v Council [1998] ECR II-2335, paragraph 69, and the order of the Courtof First Instance of 30 September 1997 in Case T-122/96 Federolio v Commission[1997] ECR II-1559, paragraph 59).

51.

    In that regard, it is settled case-law that where the Commission is, by virtue ofspecific provisions, under a duty to take account of the consequences of a measurewhich it envisages adopting for the situation of certain individuals, that fact is suchas to distinguish them individually (Case 11/82 Piraiki-Patraiki and Others vCommission [1985] ECR 207, Case C-152/88 Sofrimport v Commission [1999] ECRI-2477, Joined Cases T-480/93 and T-483/93 Antillean Rice Mills and Others vCommission, cited above, paragraph 67, and Case C-390/95 P Antillean Rice Millsand Others v Commission [1999] ECR I-769, paragraphs 25 to 30).

52.

    In this case, Regulation No 2352/97 and Regulation No 2494/97, adopted for itsimplementation, were based on Article 109 of the OCT Decision, paragraph 1 ofwhich provides that the Commission is authorised, under certain conditions, to takesafeguard measures.

53.

    Article 109(2) provides that '[f]or the purpose of implementing paragraph 1,priority shall be given to such measures as would least disturb the functioning ofthe association and the Community. These measures shall not exceed the limits ofwhat is strictly necessary to remedy the difficulties that have arisen‘.

54.

    It is clear from that provision that, where the Commission envisages takingsafeguard measures on the basis of Article 109(1) of the OCT Decision, it isrequired to take account of the negative effects which its decision might have onthe economy of the overseas country or territory concerned as well as on theundertakings concerned (Case C-390/95 P Antillean Rice Mills and Others, citedabove, paragraph 28, and Joined Cases T-480/93 and T-483/93 Antillean Rice Millsand Others, cited above, paragraph 70).

55.

    The applicant is one of the OCTs specifically named in Annex IV to the Treaty towhich the provisions of Part Four of the Treaty concerning association of the OCTsapply. Under Article 109(2) of the OCT Decision, the Commission was thereforerequired, when adopting the contested regulations, to take account of the particularsituation of the applicant, particularly since it was foreseeable that the adverserepercussions of the measures taken would be felt mainly in the applicant'sterritory. When the contested regulations were adopted, the Commission wasaware, as it in fact acknowledged both in its written pleadings and at the hearing,that most imports of OCT rice into the Community came from the NetherlandsAntilles.

56.

    The applicant, benefiting as it thus did from specific protection under Communitylaw when the Commission adopted the contested regulations, is affected by themby virtue of factual circumstances which distinguish it from any other person(Plaumann v Commission, cited above, at p. 107, Piraiki-Patraiki, cited above,paragraphs 28 to 31, and Case C-390/95 P Antillean Rice Mills and Others, citedabove, paragraph 28). Consequently, the contested regulations are of individualconcern to the applicant within the meaning of the fourth paragraph of Article 173of the Treaty.

57.

    It is true, as the Commission points out, that the fact that a local or regionalauthority of a Member State demonstrates that the application or implementationof a Community measure is capable of affecting socio-economic conditions withinits territory is not sufficient for it to be recognised that that measure is of individualconcern to it (see the orders in Comunidad Autónoma de Cantabria v Council, citedabove, paragraphs 49 and 50, and in Regione Puglia v Commission and Spain, citedabove, paragraphs 21 and 22). However, in this case, the contested measures areof individual concern to the applicant in so far as the Commission, when envisagingtheir adoption, was under a duty specifically to take account of the applicant'ssituation by virtue of Article 109(2) of the OCT Decision.

58.

    Second, the applicant cannot be regarded as having no interest in bringingproceedings for annulment of the contested regulations merely because theKingdom of the Netherlands has an independent right of action under the secondparagraph of Article 173 of the Treaty. It must be pointed out that, in other areas,the fact that a Member State and one of its entities both have an interest inbringing proceedings against the same measure has not led the Court of FirstInstance to hold that the entity's interest in bringing proceedings was not sufficientto render admissible an action for annulment based on the fourth paragraph ofArticle 173 of the Treaty (see the judgments in Vlaams Gewest v Commission, citedabove, paragraph 30, and in Joined Cases T-132/96 and T-143/96 Freistaat Sachsenand Volkswagen v Commission [1999] ECR II-0000, paragraph 92). The fact thatthe Kingdom of the Netherlands could have invoked Article 1(5) of Annex IV tothe OCT Decision to make a special appeal to the Council against the contestedregulations likewise does not affect the applicant's interest in bringing proceedingsin this case.

59.

    Similarly, the Commission's argument that a particular region may not challengebefore the Community judicature the balance made by a Member State of theinterests of the various regions comprising it before that Member State defines itsposition within the Council must also be rejected. It need merely be observed, inthat regard, that the contested regulations were adopted by the Commission, notthe Council. The Commission exercises its functions entirely independently fromthe Member States in the general interest of the Community.

60.

    As regards, finally, the question whether the contested regulations are of directconcern to the applicant, Regulation No 2352/97 contains comprehensive rulesleaving no latitude to the authorities of the Member States. As regards rice fromthe OCTs, it regulates in a binding manner the machinery for submission and issueof import licences and also authorises the Commission to suspend the issue thereofif a quota determined by it is exceeded or there are serious disturbances of themarket. Regulation No 2352/97 is therefore of direct concern to the applicant (seeJoined Cases 41/70 to 44/70 International Fruit Company and Others v Commission[1971] ECR 411, paragraphs 23 to 28, and Case 294/83 Les Verts v Parliament[1986] ECR 1339, paragraph 31).

61.

    Regulation No 2494/97 is also of direct concern to the applicant in that it excludesthe issue of import licences for rice falling within CN code 1006 and originating inthe OCTs for applications submitted from 3 December 1997 and suspends until 31December 1997 the submission of further import licence applications for rice fromthat origin.

62.

    It follows that the present actions must be declared admissible.

Substance

63.

    The applicant puts forward ten pleas in support of its application in Case T-32/98. The first alleges misuse of powers. The second alleges that the wrong legal basiswas chosen for Regulation No 2352/97. The third alleges breach of the principleof legal certainty, and the fourth infringement of Article 133(1) of the Treaty. Thefifth alleges infringement of Articles 132(1) and 134 of the Treaty, of Article 102of the OCT Decision and of Article 19 of Annex II to the OCT Decision. The sixthplea alleges infringement of Article 7(5) of the agreement on safeguards, of ArticleXIII:2(c) of the 1994 GATT (General Agreement on Tariffs and Trade), and ofArticle 228(7) of the EC Treaty (now, after amendment, Article 300(7) EC). Theseventh plea alleges infringement of Article 109(1) of the OCT Decision. Theeighth alleges infringement of Article 109(2) of the OCT Decision. The ninthalleges infringement of Article 190 of the EC Treaty (now Article 253 EC), and thetenth infringement of essential procedural requirements.

64.

    In Case T-41/98, the applicant seeks annulment of Regulation No 2494/97, relyingon the illegality of Regulation No 2352/97, putting forward the same pleas as inCase T-32/98.

65.

    It is appropriate first to examine the plea alleging infringement of Article 109(1)of the OCT Decision.

Arguments of the parties

66.

    The applicant maintains, first, that Article 109(1) of the OCT Decision does notempower the Commission to take safeguard measures by reason of the volume ofimports originating in the OCTs. The applicant refers in that connection to Article132(1) of the Treaty and states that the Member States are not authorised to takesafeguard measures restricting trade between them by reason of the volume ofimports from other Member States. Second, the applicant submits that, even if theCommission were entitled to rely on the volume of imports from the OCTs in orderto adopt safeguard measures, in this case it could not show that there was a riskthat the quantity of rice imported from the OCTs was such as to cause disturbanceof the Community market. Third, the applicant argues that no such disturbancecould derive from the volume of rice imports from the OCTs owing to theminimum export price which it had set for rice originating in the NetherlandsAntilles.

67.

    The Commission replies, first, that the applicant's first argument is based on amisinterpretation of Article 132(1) of the Treaty. That provision does not containan unconditional legal rule but merely states one of the objectives pursued bycooperation between the OCTs and the Community. The applicant cannottherefore validly rely on that article as a ground for contending that theCommission is not entitled to adopt measures based on Article 109 of the OCTDecision by reason of the volume of imports of products from the OCTs.

68.

    Second, the Commission states that the increase in the quantities of rice importedfrom the OCTs as from the 1995/1996 marketing year was steeper than that of thetotal volume of rice imports into the Community. The share of imports from theOCTs started increasing in the 1994/1995 marketing year and continued to do sountil the first safeguard measures were adopted at the beginning of 1997.

69.

    According to the Commission, the Community statistics show that the total volumeof rice imports from the OCTs amounted to 162 541 tonnes of wholly milled ricefor the 1996/1997 marketing year, and not 65 000 tonnes as contended by theapplicant. The increase in rice imports from the OCTs thus exposed the prices ofCommunity paddy rice to very great pressure, necessitating intervention purchasesand even exports, with refunds, of Community indica rice on a market which was,nevertheless, structurally in deficit. By means of the safeguard measures, it waspossible to halt and reverse the downward trend observed on the Communitymarket.

70.

    The Commission also states that it has no duty to demonstrate a causal linkbetween the threat of disturbance of the Community rice market and imports ofrice from the OCTs. It is sufficient if there is some relationship between the twophenomena. It is undeniable that imports from third countries have an impact onthat market.

71.

    Third, the Commission replies that, although the rice from the OCTs exported tothe Community is essentially from the Antilles, the fact remains that it does notcome exclusively from the Netherlands Antilles. The Commission contends that itwas required to fix a limit for all the OCTs and that it could not therefore adopta separate measure for the Netherlands Antilles alone.

72.

    The intervener states that, when Regulation No 2352/97 was adopted, rice importsfrom the OCTs were causing serious disturbances on the Community market. Itrefers in particular to statements made by members of parliament and membersof the Commission to the European Parliament, which draw attention to the steepincrease in such imports since 1995. The intervener also gives details of the priceof indica rice (equivalent quantity, husked) produced on its territory, which declinedbetween January 1997 and February 1998. It also refers to the Commission's broaddiscretion in this area.

Findings of the Court

73.

    It must first be borne in mind that Regulation No 2352/97 was adopted on the basisof Article 109 of the OCT Decision.

74.

    Under Article 109(1) of the OCT Decision, the Commission may take or authorise'the necessary safeguard measures‘ either '[i]f, as a result of the application of the[OCT Decision which in principle provides for free access to the Community forproducts originating in the OCTs], serious disturbances occur in a sector of theeconomy of the Community or one or more Member States, or their externalfinancial stability is jeopardised‘, or 'if difficulties arise which may result in adeterioration in a sector of the Community's activity or in a region of theCommunity‘.

75.

    At the hearing, the Commission stated that the wording of the first sentence of thesecond recital in the preamble to Regulation No 2352/97 gives the impression thatthat regulation comes within the first set of circumstances envisaged in Article109(1) of the OCT Decision.

76.

    It must be observed that, in fact, it is clear from that passage of Regulation No2352/97 that the Commission adopted the contested measure in that context. Thefirst phrase of the second recital in the preamble to Regulation No 2352/97 states'the import of unlimited quantities of rice originating in the OCTs threatensseriously to disturb the Community market in rice‘.

77.

    However, the Court of Justice made it clear in its judgment in C-390/95 P AntilleanRice Mills, cited above, that 'in the first hypothesis referred to in Article 109(1) ofthe OCT Decision, namely if the application of the OCT Decision causes seriousdisturbances in a sector of the economy of the Community or one or more of itsMember States or jeopardises their external financial stability, the existence of acausal link must be established because the purpose of the safeguard measuresmust be to iron out or reduce the difficulties which have arisen in the sectorconcerned‘ (paragraph 47).

78.

    Accordingly, even if the Commission enjoys a wide discretion not only regarding theexistence of conditions justifying the adoption of safeguard measures but also asregards the principle of adopting such measures (Joined Cases T-480/93 and T-483/93 Antillean Rice Mills, cited above, paragraph 122, and Case C-390/95 PAntillean Rice Mills, cited above, paragraph 48), the fact nevertheless remains that,in this case, it was under an obligation, in order to enable it to adopt the measurescontained in Regulation No 2352/97, to establish the existence of a causal linkbetween application of the OCT Decision and the emergence of disturbances of theCommunity market.

79.

    However, it does not appear from Regulation No 2352/97 that the Commissionestablished the existence of any such link. Thus, there is nothing in the preambleto explain how and to what extent application of the OCT Decision guaranteeing'the import of unlimited quantities of rice from the OCTs‘ (see paragraph 76above) provoked serious disturbances of the Community rice market in such a waythat it was necessary to adopt Regulation No 2352/97 in order to resolve or reducethe difficulties encountered.

80.

    It is true that, when Regulation No 2352/97 was adopted on 27 November 1997,Regulation No 1036/97, which limited rice imports from the OCTs (see paragraph15 above) was about to expire and the mid-term amendment decision, which hasthe same effects (see paragraph 11 above), had not yet entered into force. Byadopting the contested regulations, the Commission therefore sought to control andlimit imports of rice from the OCTs between the expiry of Regulation No 1036/97and the entry into force of the mid-term amendment decision.

81.

    However, instead of specifically examining what might be the effects on theCommunity rice market of applying the OCT Decision, the Commission simplypresumed that its application, in the absence of protective measures limitingimports of rice from the OCTs, would necessarily disturb that market seriously.

82.

    Thus, it is common ground that the Commission did not check whether the priceof rice imported from the OCTs was lower than that of Community rice. Indeed,the Commission conceded, in its answer to a written question from this Court of14 June 1999, that it had never 'made a comparison between the price of riceimported from the OCTs and the price of Community rice‘. It explains that itsview that the contested measure needed to be adopted 'was not based on apossibly lower export price of rice ... but on the threat of imports of unlimitedquantities (see the second recital in the preamble to Regulation No 2352/97)‘. However, if it had proved to be the case, as the applicant claims, that the riceimported from the OCTs was marketed at a higher price than Community rice, itcould not have attracted, in the Community, demand of such a level that thequantities imported could have given rise to serious disturbances on the Communitymarket after the expiry of Regulation No 1036/97.

83.

    However, the threat of imports of unlimited quantities of products from the OCTsderives directly from application of the provisions of Part Four of the Treaty andof the OCT Decision, which provide that trade with the OCTs is in principle to beplaced on the same footing as trade between Member States (see paragraphs 2 to8 above). If such a threat, which is always imminent in the absence of safeguardmeasures, were sufficient to demonstrate the existence of a causal link betweenapplication of the OCT Decision and possible disturbances in a sector of theCommunity economy and therefore to justify the adoption of measures underArticle 109(1) of the OCT Decision, the objectives pursued by the provisions ofPart Four of the Treaty and of the OCT Decision would be rendered nugatory.

84.

    It must therefore be concluded that, contrary to the requirements of Article 109(1)of the OCT Decision, the Commission did not establish the existence of a causallink between the volume of imports from the OCTs deriving from application ofthe OCT Decision or that any serious disturbances had arisen on the Communityrice market. That omission derives from an error of law in that the Commissionagain emphasised, in its defence in both cases, that it did not have to establish theexistence of any such link.

85.

    The plea alleging infringement of Article 109(1) of the OCT Decision is thereforewell founded.

86.

    It is not for the Court, in proceedings for annulment, to substitute its ownassessment for that of the Commission and consider, on the basis of theinformation before it, whether, when Regulation No 2352/97 was adopted, therewas in fact a causal link between application of the OCT Decision and anydisturbances of the Community rice market at that time (see to that effect JoinedCases T-79/95 and T-80/95 SNCF and British Railways v Commission [1996] ECRII-1491, paragraph 64).

87.

    Without there being any need for a decision on the merits of the other pleas putforward by the applicant, Regulation No 2352/97 must therefore be annulled. Consequently, Regulation No 2494/97, which is based on Regulation No 2352/97,is also vitiated by illegality and must likewise be annulled.

Costs

88.

    Under Article 87(2) of the Rules of Procedure of the Court of First Instance, theunsuccessful party is to be ordered to pay the costs if they have been applied forin the successful party's pleadings. Since the Commission has been unsuccessful,it must, in accordance with the form of order sought by the applicant, be orderedto pay the costs.

89.

    The Kingdom of Spain, which intervened in support of the Commission, must beordered to bear its own costs in accordance with Article 87(4) of the Rules ofProcedure.

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber)

hereby:

1.    Joins Cases T-32/98 and T-41/98 for the purposes of the judgment;

2.    Annuls Commission Regulation (EC) No 2352/97 of 27 November 1997introducing specific measures in respect of imports of rice originating inthe overseas countries and territories;

3.    Annuls Commission Regulation (EC) No 2494/97 of 12 December 1997 onthe issuing of import licences for rice falling within CN code 1006 andoriginating in the overseas countries and territories under the specificmeasures introduced by Regulation (EC) No 2352/97;

4.    Orders the Commission to bear its own costs and to pay those of theNetherlands Antilles Government in both cases;

5.    Orders the intervener to bear its own costs in both cases.

JaegerLenaerts Azizi

Delivered in open court in Luxembourg on 10 February 2000.

H. Jung

K. Lenaerts

Registrar

President

1: Language of the case: Dutch.