Case T-576/08

Federal Republic of Germany

v

European Commission

(Agriculture – Common organisation of the markets – Distribution of food from intervention stocks for the benefit of the most deprived persons – Regulation (EC) No 983/2008 – Plan allocating to the Member States resources to be charged to the 2009 budget year for the distribution programme – Mobilisations on the market – Actions for annulment)

Summary of the Judgment

1.      Agriculture – Common organisation of the markets – Mechanisms common to more than one common organisation – Distribution of food to the most deprived persons of the Community – Purchase of goods on the market with a view to such distribution

(Council Regulation No 1234/2007, Art. 27; Commission Regulation No 983/2008)

2.      Actions for annulment – Judgment annulling a measure – Effects – Limitation by the Court

(Commission Regulation No 983/2008)

1.      Article 27(2) of Regulation No 1234/2007, establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products, provides that, in the context of the distribution of food to the most deprived persons of the Community, it is only where the temporary unavailability of a product exists during implementation of the annual plan that that product can be purchased on the market.

In that regard, whilst it is at the time of the adoption of that plan that the Commission has the responsibility for adapting the volume thereof to the volumes of intervention stocks, and whilst, in that context, it has a discretion granted by the said provision, that must not lead the exceptional nature of that provision to be misconstrued. Since the intervention stocks must be considered as permanently established, only the volume of which changes according to market fluctuations and public intervention, the expression ‘temporarily unavailable’ contained therein cannot be interpreted as referring to a number of months or years, but as designating an exception to the rule of distribution of products in intervention stocks, laid down by Article 27(1) of Regulation No 1234/2007. The proportions of the volume of supplementary purchases must therefore reflect the exceptional nature of that measure in relation to the total volumes of the annual plan, the aim of which is merely to make good the insufficiencies which, according to the state of the stocks, should exist during the implementation of the plan. If not, an inversion of the rule and the exception would result.

Since the main objective of the annual plan which it contains is not the disposal of intervention stocks, but to cover the requirements declared by the Member States participating in that plan, Regulation No 983/2008 adopting the plan allocating to the Member States resources to be charged to the 2009 budget year for the supply of food from intervention stocks for the benefit of the most deprived persons in the Community was adopted in breach of Article 27 of Regulation No 1234/2007.

(see paras 119, 121, 125, 128, 137)

2.      In order to prevent the retroactive effect of the partial annulment of Regulation No 983/2008 adopting the plan allocating to the Member States resources to be charged to the 2009 budget year for the supply of food from intervention stocks for the benefit of the most deprived persons in the Community, such annulment concerning only Article 2 of Annex II to that regulation, which are the only provisions providing for the payment of allocations to Member States for the purchase of products on the market, from creating a repayment obligation on the part of the Member States which benefited from those allocations, it is appropriate for the Court to hold that that annulment in part does not affect the validity of allocations already made.

(see paras 141-143)