Action brought on 24 February 2012 - T&L Sugars and Sidul Açúcares v Commission
(Case T-103/12)
Language of the case: English
Parties
Applicants: T&L Sugars Ltd (London, United Kingdom) and Sidul Açúcares, Unipessoal Lda (Santa Iria de Azóia, Portugal) (represented by: D. Waelbroeck, lawyer, and D. Slater, Solicitor)
Defendants: European Commission and the European Union, represented by the European Commission
Form of order sought
Declare the present application for annulment under Article 263(4) TFEU and/or plea of illegality under Article 277 TFEU against Regulation 1240/2011, Regulation 1308/2011, Regulation 1239/2011, Regulation 1281/2011, Regulation 1316/2011, Regulation 1384/2011, Regulation 27/2012 and Regulation 57/2012 admissible and well founded;
Annulment of Commission Implementing Regulation (EU) No 1240/2011 of 30 November 2011 laying down exceptional measures as regards the release of out-of-quota sugar and isoglucose on the Union market at reduced surplus levy during marketing year 2011/2012 (OJ 2011 L 318, p. 9);
Annulment of Commission Implementing Regulation (EU) No 1308/2011 of 14 December 2011 fixing allocation coefficient, rejecting further applications and closing the period for submitting applications for available quantities of out-of-quota sugar to be sold on the Union market at reduced surplus levy during marketing year 2011/2012 (OJ 2011 L 332, p. 8);
Annulment of Commission Implementing Regulation (EU) No 1239/2011 of 30 November 2011 opening a standing invitation to tender for the 2011/2012 marketing year for imports of sugar of CN code 1701 at a reduced customs duty (OJ 2011 L 318, p. 4);
Annulment of Commission Implementing Regulation (EU) No 1281/2011 of 8 December 2011 on the minimum customs duty to be fixed in response to the first partial invitation to tender within the tendering procedure opened by Implementing Regulation (EU) No 1239/2011 (OJ 2011 L 327, p. 60);
Annulment of Commission Implementing Regulation (EU) No 1316/2011 of 15 December 2011 on the minimum customs duty to be fixed in response to the second partial invitation to tender within the tendering procedure opened by Implementing Regulation (EU) No 1239/2011 (OJ 2011 L 334, p. 16);
Annulment of Commission Implementing Regulation (EU) No 1384/2011 of 22 December 2011 on the minimum customs duty to be fixed in response to the third partial invitation to tender within the tendering procedure opened by Implementing Regulation (EU) No 1239/2011 (OJ 2011 L 343, p. 33);
Annulment of Commission Implementing Regulation (EU) No 27/2012 of 12 January 2012 on the minimum customs duty for sugar to be fixed in response to the fourth partial invitation to tender within the tendering procedure opened by Implementing Regulation (EU) No 1239/2011 (OJ 2012 L 9, p. 12); and
Annulment of Commission Implementing Regulation (EU) No 57/2012 of 23 January 2012 suspending the tendering procedure opened by Implementing Regulation (EU) No 1239/2011 (OJ 2012 L 19, p. 12);
In the alternative, declare the plea of illegality against Articles 186(a) and 187 of Regulation 1234/2007 admissible and well founded and declare those provisions illegal, as well as annul the contested regulations, which are directly or indirectly based on those provisions;
Condemn the EU as represented by the Commission to repair any damage suffered by the applicants as a result of the Commission's breach of its legal obligations and to set the amount of this compensation for the damage suffered by the applicants during the period 1 April 2011 to 29 January 2012 at 87,399,257 EUR plus any ongoing losses suffered by the applicants after that date or any other amount reflecting the damage suffered or to be suffered by the applicants as further established by them in the course of this procedure especially to take due account of future damage;
Order an interest at the rate set at the time by the European Central bank for main refinancing operations, plus two percentage points, or any other appropriate rate to be determined by your Court, be paid on the amount payable as from the date of your Court's judgement until actual payment;
Order the Commission to pay all costs and expenses in these proceedings.
Pleas in law and main arguments
In support of the action, the applicants rely on six pleas in law.
First plea in law, alleging violation of the principle of non-discrimination as the contested measures discriminate against the case cane sugar refiners in favour of beet processors.
Second plea in law, alleging violation of Regulation 1234/2007 and absence of an appropriate legal basis as the defendant has no power to increase quotas and is required to impose high, dissuasive levies on the release of out-of-quota sugar, nor does the defendant have mandate or power to adopt this kind of measure, which was never envisaged in the basic legislation.
Third plea in law, alleging violation of the principle of legal certainty, as Regulation 1239/2011 and its implementing regulations created a system whereby custom duties are not predictable and fixed through the application of consistent, objective criteria, but are rather determined by subjective willingness to pay with no actual link with the actual products being imported.
Fourth plea in law, alleging violation of the principle of proportionality in so far as the defendant could easily have adopted less restrictive measures which would not have been taken exclusively to the detriment of importing refiners.
Fifth plea in law, alleging violation of legitimate expectations, as the defendant breached the applicants' legitimate expectations to be treated in a balanced, fair and non-discriminatory manner.
Sixth plea in law, alleging violation of the principle of diligence, care and good administration, as the defendant failed in the first instance to act at all, despite repeated warnings of market disturbances, then went on to adopt manifestly inappropriate measures to tackle those disturbances, and in doing so upset the balance established by the Council between domestic producers and importing refiners.
For the annulment of Regulation 57/2012 the applicants invoke only first, fourth and sixth pleas in law.
In the alternative, the applicants invoke the above-mentioned pleas in law against Regulation 1239/2011 and Regulation 1308/2011, as a plea of illegality based on Article 277 TFEU. In the event that the Court rejects these grounds for annulment, the applicants raise a plea of illegality under Article 277 TFEU against Article 186a and 187 of Regulation 1234/2007 on which the contested regulations are based, and request the annulment of those provisions of Regulation 1234/2007 as well as the contested regulations.
____________1 - Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (OJ 2007 L 299, p. 1).