1. 

The present appeal is brought against the judgment in T&L Sugars and Sidul Açúcares v Commission, ( 2 ) by which the General Court of the European Union, inter alia, dismissed as inadmissible the action brought by T & L Sugars Ltd and Sidul Açúcares, Unipessoal Lda, two companies established in the European Union and engaged in the refining of imported cane sugar, for the annulment of a number of European Commission regulations adopting exceptional measures relating to the release of out-of-quota sugar and isoglucose on the market ( 3 ) and opening an exceptional import tariff quota for sugar for the 2010/2011 marketing year. ( 4 )

2. 

In that case, the General Court held, in essence, that, to the extent that implementation of the contested regulations called for the adoption by Member States of a number of measures, T & L Sugars and Sidul Açúcares could not rely on the final limb of the fourth paragraph of Article 263 TFEU. It also held that Implementing Regulation (EU) No 302/2011 was not of individual concern to T & L Sugars or to Sidul Açúcares and, consequently, upheld the preliminary plea of inadmissibility raised by the Commission, declaring the action to be inadmissible in so far as it sought annulment of the contested regulations.

3. 

In those circumstances, the appeal brought by T & L Sugars and Sidul Açúcares (or, collectively, ‘the appellants’) gives the Court of Justice an opportunity to rule on the General Court’s interpretation of the new provision inserted in the fourth paragraph of Article 263 TFEU by the Lisbon Treaty and to give a more precise definition of ‘a regulatory act which … does not entail implementing measures’.

4.

The background to the dispute was described very briefly by the General Court in paragraphs 1 to 5 of the judgment under appeal, to which reference is made. The basic elements of the contested regulations will also be described, as and when necessary, in the arguments set out below.

5.

The General Court upheld the preliminary plea of inadmissibility raised by the Commission, finding that T & L Sugars and Sidul Açúcares could not rely on the final limb of the fourth paragraph of Article 263 TFEU (paragraphs 36 to 73 of the judgment under appeal) and that they were not individually concerned by Regulation No 393/2011 (paragraphs 74 to 94 of that judgment). The main points of the judgment under appeal with which the appellants take issue will be referred to as and when necessary in the course of the examination of their grounds of appeal.

6.

The appellants formally rely on three grounds of appeal. First of all, they submit that the General Court made several errors of law in finding that the measures adopted in the circumstances of that case by the national authorities constituted implementing measures for the purposes of the fourth paragraph of Article 263 TFEU. They also submit that the General Court erred in law in holding that they were not individually concerned by Regulation No 393/2011. Lastly, the appellants submit that the General Court erred in law in finding, in paragraph 97 of the judgment under appeal, that, since their action for annulment was inadmissible, it was necessary in consequence to reject the preliminary plea of illegality that they had raised in that action in respect of Articles 186(a) and 187 of 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 (Single CMO Regulation). ( 5 )

7.

By their first ground of appeal, the appellants submit, in essence, that the General Court erred in law in holding that the conditions for application of the final limb of the fourth paragraph of Article 263 TFEU were not satisfied in the circumstances of the case.

8.

According to the appellants, the interpretation of the fourth paragraph of Article 263 TFEU requires a distinction to be made between genuine implementing measures and other implementing measures, which means that it is necessary to examine the content of the contested regulatory acts and the specific nature of the measures taken by the Member States, taking into consideration the discretion enjoyed by the Member States and the objective pursued by that provision, namely, the effective judicial protection of individuals.

9.

The General Court made a first error of law, it is submitted, in holding that any measure, however automatic or insignificant, taken by a Member State under a regulation constitutes a decision implementing that regulation.

10.

The General Court made a second error of law, it is submitted, in finding that the measures adopted by Member States in the circumstances of the case were measures implementing the contested regulations, despite the fact that the Member States did not exercise any discretion in adopting those measures, since they made no choices and took no decision, acting merely as ‘mail boxes’.

11.

The General Court made a third error of law, it is submitted, in stating, in paragraph 53 of the judgment under appeal, that the degree of discretion enjoyed by Member States is irrelevant for the purposes of ascertaining whether a regulatory act ‘entails implementing measures’.

12.

Lastly, it is submitted that the General Court made a fourth error of law in holding in paragraphs 69 to 72 of the judgment under appeal that, even if the concept of ‘a regulatory act not entailing implementing measures’ is construed in the light of the principle of effective judicial protection, the action brought by T & L Sugars and Sidul Açúcares could not be held admissible.

13.

The appellants note, in that regard, that they have explicitly stated that they had no legal remedy before the national courts and that, accordingly, they would have had to break the law and have legal action taken against them in order to be able to challenge the contested regulations. From that point of view, the final limb of the fourth paragraph of Article 263 TFEU should be construed in the light of its procedural efficiency. Moreover, that provision is not intended solely and exclusively to avoid situations where individuals have to break the law in order to have access to justice.

14.

The appellants go on to point out that the Commission openly acknowledges, as does the General Court in paragraphs 63, 65 and 72 of the judgment under appeal, the absence of national legal remedies. They stress the fact that the measures adopted by the national authorities pursuant to the contested regulations could not be challenged in Portugal unless they had been adopted ultra vires, which was not the case. In any event, those measures were not public as they contained business secrets.

15.

On the other hand, the Commission — supported on every point by the Council of the European Union — argues, as does the French Government, that the General Court did not err in law in finding that the contested regulations entailed implementing measures.

16.

The arguments put forward by the appellants in the present appeal give the Court an opportunity to interpret in greater depth the new provision inserted in the fourth paragraph of Article 263 TFEU by the Lisbon Treaty. More specifically, the appellants call upon the Court to clarify the implications of the new rules, provided for by the Lisbon Treaty, on the standing of natural and legal persons to bring proceedings against regulatory acts and, more precisely, to clarify the twofold condition introduced by the Lisbon Treaty. ( 6 )

17.

Although the Court has already defined the concept of ‘regulatory act’ as used in that provision, most particularly as excluding legislative acts, ( 7 ) it has not yet had occasion to address, at least in positive terms, ( 8 ) the twofold condition that, in order for natural or legal persons to have standing to challenge that type of act, the act must be of direct concern to them and must not entail implementing measures other than those making it of direct concern.

18.

In identifying ‘regulatory acts which are of direct concern to [an applicant] and do not entail implementing measures’, account must be taken, according to settled case-law, of the origins of the new provision, its wording and its context, together with the relevant provisions of EU law as a whole, ( 9 ) the role played by that new provision within the system of legal remedies established by the Treaty being of particular importance in that regard.

19.

In that connection, I should begin this investigation with the general observation that the Court has held that the new provision made in the final limb of the fourth paragraph of Article 263 TFEU has relaxed the conditions for the admissibility of actions brought by natural or legal persons for the annulment of certain regulatory acts, namely those which concern them directly and which do not entail implementing measures, by removing the condition relating to individual concern. ( 10 )

20.

By reproducing in identical terms the content of what was Article III‑365(4) of the draft Treaty establishing a Constitution for Europe, the new fourth paragraph of Article 263 TFEU is therefore intended to ease the conditions for the admissibility of actions brought by natural or legal persons for the annulment of certain regulatory acts, without altering the conditions for the admissibility of actions challenging legislative acts. ( 11 ) Its purpose is to enable natural or legal persons to bring actions for the annulment of acts of general application other than legislative acts ( 12 ) under less stringent conditions than before, that is to say, without having to prove that the acts are of individual concern to them. It is in the light of that objective that the two cumulative conditions laid down in the final limb of the fourth paragraph of Article 263 TFEU — that the contested regulatory act must be of direct concern to the applicant and must not entail implementing measures — fall to be interpreted.

21.

At this point, it should be noted without further ado that the very wording of the new provision inserted in the fourth paragraph of Article 263 TFEU unquestionably raises some difficulties as regards interpretation. ( 13 )

22.

Certainly, the condition relating to direct concern already existed talis qualis, along with the condition relating to individual concern, ‘before Lisbon’ and the interpretations of both conditions are well known.

23.

As regards direct concern — whatever the measure of general application contested — the Court has consistently held that, for a natural or legal person to be directly concerned by a measure, that measure must directly affect the person’s legal situation and, where it entails the adoption of intermediate measures, it must leave no discretion to the authorities responsible for implementing it, such implementation being purely automatic and resulting solely from EU rules. ( 14 ) The mere fact that an applicant is linked to a measure of general application and of individual concern to him by measures adopted at national level does not necessarily constitute in itself an obstacle to the recognition of his standing to bring proceedings.

24.

How, then, to construe the new rules on regulatory acts, under which the condition relating to direct concern is retained and the additional condition, relating to the absence of implementing measures, is imposed? That is the question that accordingly arises and, in my view, it is no adequate response merely to apply the rules relating to the condition of direct concern that the Court laid down at a time when that condition operated in tandem with the condition of individual concern.

25.

After all, the condition of direct concern, as interpreted by the Court in relation to the pre-Lisbon version of the Treaty, was already based on the understanding that where implementation was purely automatic there was no obstacle to the recognition of standing to bring proceedings. It could be argued, therefore, that the condition relating to the absence of implementing measures — in other words, the absence of acts going beyond purely automatic implementation — is inherent in the condition relating to direct concern.

26.

Viewed in a certain light, the Lisbon Treaty has complicated those relatively simple rules. On the one hand, the Lisbon Treaty preserved the earlier rules relating to general ‘acts’, other than individual decisions, retaining the condition of direct and individual concern. On the other hand, it provided for a derogation from that rule for the category of ‘regulatory acts’, through the introduction of another twofold condition: direct concern ‘and’ the absence of implementing measures.

27.

Thus, the new rules on regulatory acts make it necessary to draw a distinction between the two conditions relating to those acts, in other words, to make sense of that conceptual duality. The logical inference to be drawn from the actual wording of the final limb of the fourth paragraph of Article 263 TFEU is that some regulatory acts, while being of direct concern to natural or legal persons, can still entail implementing measures.

28.

As a consequence, two opposing schools of thought have emerged. According to the first view, any step — however minimal — taken by a national authority in the process of implementing a regulatory act would suffice for the condition concerning the absence of implementing measures not to be satisfied. That, broadly, is the position argued for by the French Government, the Commission and the Council.

29.

As I will attempt to show, however, that view would run counter to the correct interpretation of the concept of ‘a regulatory act not entailing implementing measures’, newly introduced by the Lisbon Treaty.

30.

Indeed, it should be noted that the concept of ‘a regulatory act not entailing implementing measures’ is semantically richer than the concept implicit in that first view. Most specifically, the term ‘measure’ as used in the final limb of the fourth paragraph of Article 263 TFEU inevitably means — whatever the language version — that a certain ‘power’ is exercised, thus implying a certain degree of discretion in the exercise of State authority. It does not follow solely from the fact that national public authorities are required to fulfil certain duties that the measures which those authorities take in order to fulfil those duties constitute ‘implementing measures’ for the purposes of the final limb of the fourth paragraph of Article 263 TFEU. It is important to take into account — specifically and in each case — not only the nature, but also the form and the intensity, of the cooperation required from the national authorities.

31.

It would be difficult — if the objective of relaxing the admissibility conditions for natural and legal persons in connection with non-legislative regulatory acts is not to be wholly frustrated — to interpret the new provision as meaning that the fact that non-substantive, or ‘ancillary’, measures are taken by the national authorities, through any kind of action or adopted in the exercise of a circumscribed power, linking the applicant and the contested regulatory act, could be construed as grounds for concluding that, at one and the same time, the condition of direct concern is satisfied but the condition relating to the absence of implementing measures is not, simply because of that link.

32.

On the basis of those arguments, I would defend the alternative view, according to which the new wording used in the Treaty to define the standing of natural and legal persons to bring proceedings against regulatory acts — in the form of the two conditions with which we are concerned — calls for us to proceed in accordance with what could be thought of as a ‘functional division’ between those conditions. In reflection of that division, a distinction should be made between, on the one hand, defining the rule as such and determining its addressees (direct concern) and, on the other hand, determining the various circumstances (procedural, quantitative, temporal, among others) specific to its application in practice and to its implementation, which enable it to be said that that rule is fully and autonomously operational. It may also be argued that direct concern refers both to the definition of the rule and to the identification of its addressees, while implementing measures ensure that that rule, whose addressees have been identified, is fully operational.

33.

If that interpretation were accepted, it would be necessary to carry out a specific analysis of the purpose and content of the regulatory act itself and its effects on the applicant’s legal situation ( 15 ) in order to reach a conclusion as to whether or not that act entails implementing measures for the purposes of the final limb of the fourth paragraph of Article 263 TFEU.

34.

In the present case, it is true that, as the General Court pointed out, operational implementation of the contested regulations required the Member States to take action and to adopt a certain number of administrative measures, essentially, that is to say, receiving applications from the economic operators concerned, checking whether the applications are admissible in the light of the formal requirements established, submitting them to the Commission and then issuing licences on the basis of the allocation coefficients fixed by the Commission. However, it is difficult to conclude that the purely administrative activity thus carried out by the national authorities involves the exercise of implementing powers.

35.

It does not seem to me that the role thereby assumed by the competent national authorities of cooperating at the administrative level is consistent with what the draftsmen of the Treaty had in mind when they established the new, less stringent, twofold condition of admissibility for natural and legal persons to bring actions for the annulment of regulatory acts.

36.

It should be noted, first, that, in this case, the Commission, having observed the need to tackle the shortfall between availability and use of sugar on the EU market in the 2010/2011 marketing year, decided that it was necessary, on one hand, to release on to the market some of the sugar produced in excess of the quota fixed by Article 56 of Regulation No 1234/2007 and, on the other hand, to make full use of the existing import flows. Consequently, it adopted Regulation No 222/2011 laying down exceptional measures as regards the release of out-of-quota sugar and isoglucose on the EU market at reduced surplus levy and Implementing Regulation No 302/2011 opening an exceptional import tariff quota for certain quantities of sugar in the 2010/11 marketing year.

37.

Regulation No 222/2011 and Implementing Regulation No 302/2011 were supplemented by two implementing regulations whose main objectives were, respectively, to fix allocation coefficients for quantities of out-of-quota sugar to be sold on the market at a zero rate of surplus levy (Implementing Regulation No 293/2011) and for the import quota (Implementing Regulation No 393/2011), on the basis of applications from the interested economic operators forwarded by the Member States. Moreover, Implementing Regulation No 293/2011 rejects applications for import licences submitted between 21 and 25 March 2011 and fixes 28 March 2011 as the closing date of the period for submitting those applications. For its part, Implementing Regulation No 393/2011 suspends submission of new applications for licences, corresponding to the order numbers set out in the annex thereto, until the end of the marketing year.

38.

Moreover, it should be noted that the appellants submit, in essence, that the contested regulations place refineries for imported cane sugar at a competitive disadvantage as compared with national sugar beet producers and processors, contrary to the basic regulation and to the principles of non-discrimination, proportionality and the protection of legitimate expectations. On the other hand, the appellants in no way call into question the conditions for the issuing of licences.

39.

In its analysis of those two sets of regulations, ( 16 ) the General Court noted that interested economic operators must first submit an application to the national authorities in order to be granted the right to market or import sugar under the exceptional schemes provided for by the contested regulations, ( 17 ) and that the national authorities are to apply the relevant allocation coefficients established by Implementing Regulations Nos 293/2011 and 393/2011. ( 18 ) The General Court concluded that the contested regulations could not produce their legal effects vis-à-vis the operators concerned without the intermediary step of measures first being taken by the national authorities.

40.

After going on to observe that the aforementioned national measures constituted decisions, given that the national authorities are entitled to impose certain formal conditions on applicants, to decide on the admissibility of applications and to issue licences, ( 19 ) the General Court found that the contested regulations were ‘based’ on individual decisions taken at national level, in default of which they could not affect the legal position of the natural and legal persons concerned. ( 20 ) It held, therefore, that the contested regulations cannot be categorised as acts that do not entail implementing measures for the purposes of the final limb of the fourth paragraph of Article 263 TFEU.

41.

That assessment of the General Court is flawed by an error of law.

42.

First of all, it is the Commission which defined in their entirety the exceptional measures adopted by Regulation No 222/2011 and Implementing Regulation No 302/2011, specifying the scope ratione materiae, ratione personae and ratione temporis for each, as well as the eligibility and admissibility conditions which must be satisfied in order to benefit from those measures. ( 21 )

43.

In that regard, it should be noted, first, that, despite the fact that the two sets of regulations do not have the same scope ratione personae, the General Court took no account of that difference in the course of its analysis of those measures. Although it is not disputed that, as refiners of imported cane sugar, the appellants are directly concerned by Implementing Regulations No 302/2011 and No 393/2011, it is much more difficult to consider them to be directly concerned by Regulation No 222/2011 and Implementing Regulation No 293/2011, since the latter two regulations, given their scope, cannot affect the appellants’ legal situation in any way.

44.

Moreover, it was also the Commission which — on the basis of the data collected, filtered (where appropriate) and submitted by the Member States — fixed allocation coefficients for quantities of sugar to be sold on the market at reduced surplus levy (Implementing Regulation No 293/2011) and for import licences (Implementing Regulation No 393/2011).

45.

Admittedly, the interested economic operators were required, in each case, to submit an import licence application to the competent national authorities. However, those applications were not constitutive of the right to benefit from the exceptional measures adopted.

46.

It is also true that it was the national authorities that were entrusted with receiving the import licence applications, examining the admissibility of applications, where appropriate, and then applying the allocation coefficients and issuing the licences. However, those various actions, taken strictly in the exercise of circumscribed powers, do not go beyond simple administrative cooperation or the mere technical management of the exceptional measures adopted by the Commission.

47.

Accordingly, considered as a whole, although the exceptional measures adopted by the Commission undoubtedly called for administrative actions to be carried out, they did not require implementing measures in the strict sense. In the sense that I have sought to outline above, it is Implementing Regulations No 293/2011 and No 393/2011, in particular, which, without the shadow of a doubt, contained the ‘implementing measures’ which meet the requirement for Regulation No 222/2011 and Implementing Regulation No 302/2011 to be implemented. In a manner of speaking, they constituted the moment of implementation, for the purposes of the final limb of the fourth paragraph of Article 263 TFEU, of Regulation No 222/2011 and Implementing Regulation No 302/2011. However, that is not so in the case of the management measures taken by the competent administrative authorities in the Member States.

48.

Consequently, I believe that the appellants’ first ground of appeal should be upheld and that the judgment under appeal should therefore be set aside to the extent that the General Court held that Implementing Regulations No 302/2011 and No 393/2011 entailed implementing measures for the purposes of the final limb of the fourth paragraph of Article 263 TFEU.

49.

In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court may, after quashing the decision of the General Court, itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.

50.

In the present case, although the Court is not in a position, at this stage of the proceedings, to give judgment on the substance of the action brought before the General Court, it does have the necessary material before it to be able to give a final ruling on the preliminary plea of inadmissibility raised by the Commission at first instance, in so far as it relates to the action for annulment of Implementing Regulations No 302/2011 and No 393/2011, concerning the exceptional import tariff quota. ( 22 )

51.

Indeed, it is apparent from the foregoing arguments that those two implementing regulations cannot be considered to entail implementing measures for the purposes of the final limb of the fourth paragraph of Article 263 TFEU. Moreover, it is not disputed that, as refiners of imported cane sugar, the appellants have an interest in bringing proceedings for the annulment of those regulations and are directly concerned by them.

52.

That being so, the case should be referred back to the General Court for judgment on the appellants’ claims that Implementing Regulations No 302/2011 and No 393/2011 should be annulled.

53.

In view of the foregoing, I propose that the Court: