Parties

In Case C-441/05,

REFERENCE for a preliminary ruling under Article 234 EC, by the Cour administrative d’appel, Douai (France), made by decision of 1 December 2005, received at the Court on 12 December 2005, in the proceedings

Roquette Frères

Ministre de l’Agriculture, de l’Alimentation, de la Pêche et de la Ruralité,

THE COURT (Second Chamber),

composed of C.W.A. Timmermans, President of the Chamber, R. Schintgen, P. Kūris, R. Silva de Lapuerta and L. Bay Larsen (Rapporteur), Judges,

Advocate General: J. Kokott,

Registrar: M.-A. Gaudissart, Head of Unit,

having regard to the written procedure and further to the hearing on 7 September 2006,

after considering the observations submitted on behalf of:

– Roquette Frères, by N. Coutrelis, avocat,

– the French Government, by G. de Bergues and J.‑C. Niollet, acting as Agents,

– the Council of the European Union, by A. Gregorio Merino and A. Westerhof Löfflerová, acting as Agents,

– the Commission of the European Communities, by M. Nolin, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 26 October 2006,

gives the following

Judgment

Grounds

1. This reference for a preliminary ruling concerns the validity of:

– Article 24(2) of Council Regulation (EEC) No 1785/81 of 30 June 1981 on the common organisation of the markets in the sugar sector (OJ 1981 L 177, p. 4);

– Article 27(3) of Council Regulation (EC) No 2038/1999 of 13 September 1999 on the common organisation of the markets in the sugar sector (OJ 1999 L 252, p. 1);

– Article 1 of Commission Regulation (EC) No 2073/2000 of 29 September 2000 reducing, for the 2000/01 marketing year, the guaranteed quantity under the production quotas scheme for the sugar sector and the presumed maximum supply needs of sugar refineries under the preferential import arrangements (OJ 2000 L 246, p. 38);

– Article 11(2) of Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector (OJ 2001 L 178, p. 1);

– Article 1 of Commission Regulation (EC) No 1745/2002 of 30 September 2002 reducing, for the 2002/03 marketing year, the guaranteed quantity under the production quotas scheme for the sugar sector and the presumed maximum supply needs of sugar refineries under the preferential import arrangements (OJ 2002 L 263, p. 31); and

– Article 1 of Commission Regulation (EC) No 1739/2003 of 30 September 2003 reducing, for the 2003/04 marketing year, the guaranteed quantity under the production quotas for the sugar sector and the presumed maximum supply needs of sugar refineries under preferential imports (OJ 2003 L 249, p. 38).

2. The reference was made in the course of proceedings between Roquette Frères (‘Roquette’), the sole isoglucose producer established in metropolitan France, and the Ministre de l’Agriculture, de l’Alimentation, de la Pêche et de la Ruralité (Minister for Agriculture, Food, Fisheries and the Countryside) (‘the Minister’), concerning the production quotas for isoglucose allocated to Roquette under the common organisation of the markets in the sugar sector.

Legal background

Regulation (EEC) No 1111/77, as amended by Regulation (EEC) No 1293/79

3. Under Article 9 of Council Regulation (EEC) No 1111/77 of 17 May 1977 laying down common provisions for isoglucose (OJ 1977 L 134, p. 4), as amended by Council Regulation (EEC) No 1293/79 of 25 June 1979 (OJ 1979 L 162, p. 10):

‘1. A basic quota shall be allotted to each isoglucose producing undertaking established in the Community, for the period [from 1 July 1979 to 30 June 1980].

… the basic quota of each such undertaking shall be equal to twice its production as determined, under this Regulation, during the period 1 November 1978 to 30 April 1979.

2. To each undertaking having a basic quota, there shall also be allotted a maximum quota equal to its basic quota multiplied by a coefficient …

…’

4. Pursuant to Article 9(4), the basic quotas were allotted to each of the undertakings concerned by name. Annex II to Regulation No 1111/77, as amended by Regulation No 1293/79, provided that the basic quota for Roquette was set at 15 887 t expressed as dry matter.

5. As a result of an action brought by Roquette, Regulation No 1293/79 was annulled by the Court by reason of infringement of essential procedural requirements (Case 138/79 Roquette Frères v Council [1980] ECR 3333).

Regulations (EEC) No 387/81 and No 388/81

6. As a consequence of the annulment of Regulation No 1293/79 the Council adopted Regulation (EEC) No 387/81 of 10 February 1981 amending Regulation No 1111/77 (OJ 1981 L 44, p. 1), which re-established in particular the quotas scheme with retrospective effect for the period 1 July 1979 to 30 June 1980, by means of a reference to the provisions in Regulation No 1111/77.

7. Subsequently, Council Regulation (EEC) No 388/81 of 10 February 1981 amending Regulation (EEC) No 1592/80 on the application of the system of production quotas in the sugar and isoglucose sectors during the period 1 July 1980 to 30 June 1981 (OJ 1981 L 44, p. 4) extended the basic quotas scheme for the period from 1 July 1980 to 30 June 1981.

Regulation No 1785/81

8. Regulation No 1111/77 was repealed and replaced by Regulation No 1785/81. In the latter regulation the isoglucose production quotas were no longer determined for each producer by name but on a regional basis.

9. According to the 14th recital in the preamble to Regulation No 1785/81:

‘… there are good reasons for giving Member States, in the form of rules and special Community criteria, in addition to the power to allocate the quotas on the basis of … isoglucose producing undertakings, the power to amend subsequently the quotas of existing undertakings by subtracting them from a total amount which may not, however, exceed, for all the periods from 1 July 1981 to 30 June 1986, 10% of quotas laid down initially according to the criteria concerned, and to reallocate to other undertakings the quantities of quotas withdrawn …’.

10. Regulation No 1785/81 was originally applicable to the marketing years 1981/82 to 1985/86. Article 24 provided:

‘1. Member States shall, under the conditions of this Title, allocate an A quota and a B quota to … each isoglucose-producing undertaking established in their territory which … had, during the period 1 July 1980 to 30 June 1981, a basic quota as defined … by Regulation (EEC) No 1111/77 …

…

3. The A quota of each … isoglucose-producing undertaking shall be equal to the basic quota allocated to it for the period 1 July 1980 to 30 June 1981.

…

5. The B quota of each isoglucose-producing undertaking shall be equal to 23.55% of its A quota as determined in accordance with … paragraph 3 …

…’.

11. Under Article 24(2) the basic quantities for the allocation of those quotas for France (metropolitan) were set at 15 887 t (Basic Quantity A) and 4 135 t (Basic Quantity B), referring to tonnes of dry matter.

12. Finally, Article 25 of Regulation No 1785/81 permitted the transfer and reduction of A quotas and B quotas under the following conditions:

‘1. Member States may transfer A quotas and B quotas between undertakings under the conditions laid down in this Article, taking into consideration the interests of each of the parties concerned …

2. Member States may reduce the A quota and the B quota of … each isoglucose-producing undertaking situated in their territories by a total quantity not exceeding … 10% of the A quota or of the B quota …

…

3. The withdrawn quantities of A quotas and B quotas shall be allocated by the Member States to one or more other undertakings, whether or not in possession of a quota, situated in the same region within the meaning of Article 24(2) excluding the undertakings from which these quantities were withdrawn.

…’

Regulations No 2038/1999 and No 2073/2000

13. By Regulation No 2038/1999, the Council adopted a new common organisation of the markets in the sugar sector by codifying Regulation No 1785/81 which was repealed.

14. The first subparagraph of Article 26(5) of Regulation No 2038/1999 stated:

‘The guarantees for the disposal of … isoglucose … produced under quota may be reduced for one or more marketing years in order to comply with the Community’s commitments under the Agricultural Agreement concluded under Article 300(2) [EC].’

15. Article 27(1) of Regulation No 2038/1999 provided:

‘Under the conditions of this chapter, the Member States shall allocate an A and B quota … to each undertaking producing isoglucose which is established on its territory and has:

… been provided with an A and B quota during the 1994/95 marketing year

…’.

16. The basic quantities for the allocation of the A and B quotas, as laid down in Article 27(3), were identical to those previously determined in the marketing years 1981/82 to 1985/86 in Article 24(2) of Regulation No 1785/81.

17. Finally, Article 30 of Regulation No 2038/1999 provided for the transfer and reduction of A and B quotas under conditions comparable to those previously set out in Article 25 of Regulation No 1785/81.

18. Regulation No 2073/2000, adopted on the basis of Article 26(5) of Regulation No 2038/1999, was intended to reduce the quotas allocated by the latter for the marketing year 2000/01. Article 1(2) and (3) of Regulation No 2073/2000 provided:

‘2. The difference referred to in paragraph 1 [498 800 t] shall be allocated by product and by region in accordance with Annex I.

Once reduced by this difference, the basic quantities used to allocate the production quotas to producer undertakings for the 2000/01 marketing year shall be those set out in Annex II.

3. The Member States shall establish … the specific difference for each producer undertaking to which a production quota for the 2000/01 marketing year has been assigned, and also each undertaking’s A and B quotas adjusted in accordance with this difference ...’.

Regulations No 1260/2001, No 1745/2002 and No 1739/2003

19. Regulation No 1260/2001 was applicable to the marketing years 2001/02 to 2005/06.

20. It appears from Articles 10(2) and 11(2) of that regulation that the basic quantities for isoglucose production for metropolitan France were 15 747.1 t (Basic Quantity A) and 4 098.6 t (Basic Quantity B), referring to tonnes of dry matter.

21. Article 11(3) of Regulation 1260/2001 stated:

‘Without prejudice to Article 10(3), (4), (5) and (6) and Article 12, the A and B quotas of … undertakings producing isoglucose … shall be those assigned by the Member States for the 2000/01 marketing year before application of Article 26(5) of Regulation (EC) No 2038/1999 …’.

22. Article 10(3) of Regulation No 1260/2001, like Article 26(5) of Regulation No 2038/1999, permitted a reduction in the guaranteed quantities under the production quotas scheme in order to comply with international commitments.

23. Finally, like Articles 25 of Regulation No 1785/81 and 30 of Regulation No 2038/1999, Article 12 of Regulation No 1260/2001 provided that the Member States could transfer A and B quotas between undertakings.

24. On the basis of Article 10 of Regulation No 1260/2001, the Commission adopted Regulation No 1745/2002, which sought to reduce the guaranteed quantities under the production quotas system for the marketing year 2002/03. Article 1(2) and (3) provided:

‘2. The reduction referred to in paragraph 1 [862 475 t] shall be allocated by product and by region in accordance with Annex I.

Once reduced, the basic quantities used to allocate the production quotas to producer undertakings for the 2002/03 marketing year shall be those set out in Annex II.

3. The Member States shall establish … the specific reduction for each producer undertaking to which a production quota for the 2002/03 marketing year has been assigned, and also each undertaking’s A and B quotas adjusted in accordance with this reduction.’

25. Finally, a further reduction of the isoglucose production quotas was made on the basis of Article 1 of Regulation No 1739/2003 for the marketing year 2003/04.

The dispute in the main proceedings and the questions referred for a preliminary ruling

26. By decision of 28 June 2000, the Director of Economic and International Policy of the Ministry of Agriculture confirmed to Roquette the level of annual production quotas for isoglucose which had been assigned to it under Regulations No 1785/81 and No 2038/1999 since the marketing year 1981/82, that is 15 887 t for isoglucose A and 4 135 t for isoglucose B.

27. Subsequently, by decree of 26 October 2000, the Minister reduced the quotas assigned to Roquette on the basis of Regulation No 2073/2000 by 606.6 t of isoglucose A and 157.9 t of isoglucose B, thereby setting the quotas for the marketing year 2000/01 at 15 280.4 t and 3 977.1 t respectively.

28. By decree of 13 July 2001, adopted in accordance with Regulation No 1260/2001, the Minister set Roquette’s production quotas for the marketing years 2001/02 to 2005/06 at 15 747.1 t for isoglucose A and 4 098.6 t for isoglucose B.

29. By decree of 23 October 2002, adopted in accordance with Regulations No 1745/2002 and No 1739/2003, the Minister ‘declassified’ 1 048.9 t of isoglucose A and 273 t of isoglucose B for the marketing year 2002/03, thereby setting the production quotas for Roquette at 14 698.2 t and 3 825.6 t respectively. In the same way, by decree of 17 October 2003 he ‘declassified’ 262.1 t of isoglucose A and 68.2 t of isoglucose B for the marketing year 2003/04, thereby fixing the quotas for that marketing year at 15 485 t and 4 030.4 t respectively.

30. Roquette brought proceedings before the Tribunal administratif de Lille (Adminstrative Court, Lille) seeking annulment of the decision of 28 June 2000 and the four decrees cited above, pleading that the six regulations on which the decision and the decrees are based are unlawful.

31. After joining the five actions the Tribunal administratif dismissed them, by judgment of 11 March 2004, on the ground that Roquette should have brought an action for annulment before the Community Courts against Regulation No 1785/81 and the five subsequent regulations.

32. The applications were thus dismissed in their entirety without any examination of the merits, since the Tribunal administratif applied the case-law of the Court resulting from the judgment in Case C-239/99 Nachi Europe [2001] ECR I-1197, according to which an applicant cannot plead as a defence before the national court the illegality of a Community measure which it has not directly challenged before the Community Courts within the time‑limit laid down for bringing proceedings.

33. Roquette appealed against that judgment to the Cour administrative d’appel de Douai (Administrative Appeal Court, Douai).

34. In those circumstances, the Cour administrative d’appel de Douai decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

‘1. Could Roquette Frères undoubtedly have mounted an admissible challenge directly before [the Court of Justice] to the legality of Article 24(2) of Regulation No 1785/81, Article 27(3) of Regulation No 2038/1999, Article 1 of Regulation No 2073/2000, Article 11(2) of Regulation No 1260/2001, Article 1 of Regulation No 1745/2002 and Article 1 of Regulation No 1739/2003[?]

2. If Roquette Frères can admissibly plead the illegality of those provisions [before the national courts], are Article 24(2) of Regulation No 1785/81, Article 27(3) of Regulation No 2038/1999, Article 1 of Regulation No 2073/2000, Article 11(2) of Regulation No 1260/2001, Article 1 of Regulation No 1745/2002 and Article 1 of Regulation No 1739/2003 valid inasmuch as they set maximum basic quantities of isoglucose production for metropolitan France without taking into account the isoglucose produced in that Member State between 1 November 1978 and 30 April 1979 as an intermediate product used in the manufacture of other products intended for sale [?]’

The questions referred for a preliminary ruling

The first question

35. By its first question, the national court asks essentially whether a natural or legal person such as Roquette, in factual and legal circumstances such as those of the main proceedings, could undoubtedly have brought an admissible action, on the basis of Article 230 EC, to annul the provisions referred to in the question (‘the contested provisions’).

36. For the national court, it is in fact a matter of being sure, having regard to the case-law resulting, inter alia, from the judgment in Nachi Europe , that Roquette may plead the illegality of the contested provisions before the court, even though it has not brought an action for annulment of those provisions before the Community Courts within the time‑limit laid down in Article 230 EC.

37. In that connection, the French Government and the Commission of the European Communities argue that Roquette could without any doubt have brought an action for annulment of the contested provisions, in so far as they were of direct and individual concern to it, particularly on account of the fact that it was the sole producer of isoglucose in France and, on that basis, it was assigned all the basic quantities allocated to metropolitan France.

38. Conversely, Roquette and the Council of the European Union take the view that the contested provisions were not of direct and individual concern to the applicant in the main proceedings and that, in any event, there is still some doubt as to whether it had locus standi to bring an action for annulment of those provisions. Therefore, the case-law deriving from the judgment in Nachi Europe is not applicable in this case, so that the applicant in the main proceedings is able to rely on the invalidity of the contested provisions and, therefore, it is necessary for the Court to make an assessment of their validity.

39. It must be recalled, first of all, that Article 241 EC expresses a general principle of law under which an applicant must, in proceedings brought under national law against the rejection of his application, be able to plead the illegality of a Community measure on which the national decision adopted in his regard is based, and the question of the validity of that Community measure may thus be referred to the Court in proceedings for a preliminary ruling ( Nachi Europe , paragraph 35, and the case-law cited).

40. However, this general principle, which has the effect of ensuring that every person has or will have had the opportunity to challenge a Community measure which forms the basis of a decision adversely affecting him, does not in any way preclude a regulation from becoming definitive as against an individual in regard to whom it must be considered to be an individual decision and who could undoubtedly have sought its annulment under Article 230 EC, a fact which prevents that individual from pleading the illegality of that regulation before the national court ( Nachi Europe , paragraph 37).

41. Therefore, the question arises as to whether an action by Roquette challenging the contested provisions under the fourth paragraph of Article 230 EC would undoubtedly have been admissible, since they are of direct and individual concern to it (see, to that effect, Case C-241/95 Accrington Beef and Others [1996] ECR I‑6699, paragraph 15).

42. In that connection, it must be held that the regulations from which those provisions derive put in place, inter alia, a scheme for basic production quantities allocated to the Member States, which are responsible for distributing them among the various producers established on their territory.

43. In such a scheme, in which it is for the Member States to distribute the basic production quantities allocated to them among producers, with the possibility to transfer quotas between them, it must be stated that each producer has its quotas directly and definitively set by decision of the Member State in which it is established.

44. Furthermore, it must be recalled that, under that scheme, the Member States had some room for manoeuvre, since they were able, under the conditions laid down by the Community rules, to redistribute the quotas among producers in order, in particular, to enable new entrants to commence isoglucose production.

45. Therefore, a producer cannot, in principle, be directly concerned, for the purpose of the fourth paragraph of Article 230 EC, by the allocation of basic production quantities to the Member States as effected at Community level by the contested provisions.

46. Finally, the fact that Roquette was the only isoglucose producer established in metropolitan France and, on that basis, it was assigned the entire basic production quantity allocated to the latter, does nothing to change that finding since, in the absence of a national decision to that effect, nothing actually guaranteed that undertaking such a level of quotas solely on the basis of the Community regulations, since part of its quotas could have been reallocated by the Member State concerned, in particular to any new isoglucose producer.

47. It follows from the foregoing that an undertaking such as Roquette was not able to be regarded as directly concerned, for the purpose of the fourth paragraph of Article 230 EC, by the contested provisions. Consequently, it cannot be argued that it could undoubtedly have brought an admissible action to annul those provisions before the Community Courts.

48. Therefore, the answer to the first question must be that a natural or legal person such as Roquette, in factual and legal circumstances such as those of the main proceedings, could not undoubtedly have brought an admissible action, on the basis of Article 230 EC, to annul the contested provisions. Therefore, such a person may, in proceedings brought under national law, plead the illegality of those provisions, even though it has not brought an action for annulment of those provisions before the Community Courts within the time‑limit laid down in Article 230 EC.

The second question

49. By this question, the national court asks the Court to assess the validity of the contested provisions, in as far as they set maximum basic quantities of isoglucose production for metropolitan France without taking account of the isoglucose produced in that Member State between 1 November 1978 and 30 April 1979 (‘the reference period’) as an intermediate product used in the final manufacture of other products intended for sale.

50. In that connection, Roquette argues that the contested provisions are invalid. It submits that the initial determination of the isoglucose quotas under Regulation No 1111/77, as amended by Regulation No 387/81, was unlawful having regard to the case-law deriving from the judgment in Case C-210/90 Roquette Frères [1992] ECR I-731, in so far as the quantities of isoglucose produced as an intermediate product were not counted in the production for the reference period, which was used to determine the initial quotas according to which the basic production quantities allocated to the Member States were subsequently determined by the contested provisions.

51. As regards the information relating to the reference period, Roquette takes the view that there was no indication in the legislation then in force as to the need to include, in the information that producers were obliged to transmit to the competent authorities, the quantities of isoglucose produced as an intermediate product. That uncertainty was fuelled by the conduct of the Member States and, ultimately, by that of the Commission, which simply requested that the information relating to the production capacities of isoglucose producers be transmitted to it, without providing any further instructions. Roquette concludes that it cannot therefore be criticised for having failed to count the quantities of isoglucose produced as an intermediate product in the information which was used to determine the initial quotas.

52. Conversely, the French Government, the Council and the Commission take the view that the contested provisions are valid. They submit, inter alia, that it is the very absence, in the legislation then applicable, of a distinction as to the intended use of the isoglucose production which should have prompted Roquette not to make any distinction and, therefore, to transmit all the information concerning the production of isoglucose including that relating to isoglucose produced as an intermediate product. Therefore, it cannot be accepted that the Council made a manifest error of assessment when it determined the basic quantities under the contested provisions.

53. As a preliminary point, it must be recalled that the Council, by Regulation No 1111/77 as amended by Regulation No 387/81, assigned an initial basic quota to Roquette for the period from 1 July 1979 to 30 June 1980. As is clear from the wording of the second subparagraph of Article 9(1) of that regulation, that quota was to be twice its production as determined during the reference period.

54. In order to determine the production of each of the undertakings concerned during that period, the Commission used the information relating to their production in each calendar month transmitted by the Member States in accordance with Article 1 of Commission Regulation (EEC) No 1471/77 of 30 June 1977 on information from the Member States concerning isoglucose (OJ 1977 L 162, p. 13). That information was obtained by the Member States by way of declarations made by the producers themselves.

55. On that basis, the Council, in a table inserted in Annex II to Regulation No 1111/77 as amended by Regulation No 387/81, set the basic quota for Roquette at 15 887 t expressed as dry matter, that is twice its production as determined in the reference period in accordance with the procedure described in the preceding paragraph of this judgment. In that connection, it is common ground that Roquette had not counted the quantities of isoglucose produced as an intermediate product in the information on production transmitted to the competent national authorities.

56. It is clear from the contested provisions that, subsequently, the basic quantities were set at the same level as the basic quotas initially allocated, subject to the reductions resulting from international commitments undertaken by the Community.

57. In that connection, it must be observed that the initial quotas for the period 1 July 1979 to 30 June 1980 had been set, in accordance with Article 9(1) of Regulation No 1111/77 as amended by Regulation No 387/81, on the basis of the producers’ production as determined in the reference period, and that determination was based on the information that those undertakings themselves had transmitted to the Member States which, after taking note of them and carrying out any checks, had communicated them to the Commission in accordance with Article 1 of Regulation No 1471/77. Since the Council had decided to use those quotas as a basis, it did not have to collect that information again when it adopted the regulations at issue in the main proceedings.

58. Therefore, the fact that, in the contested measures, the Council continued to rely on the initial basic quotas cannot, in itself, result in the contested measures being invalid.

59. In any event, it must be observed that, since Roquette could clearly have mounted an admissible challenge, in respect of the calculation of the basic quotas, to Regulation No 1111/77 as amended by Regulation No 387/81, before the Community Courts on the basis of Article 230 EC, it cannot challenge the validity of that regulation in the context of the main proceedings.

60. In the light of the foregoing considerations, the answer to the second question referred must be that the examination of that question has not revealed any factor such as to affect the validity of the contested provisions.

Costs

61. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Second Chamber) hereby rules:

1. A natural or legal person such as Roquette Frères, in factual and legal circumstances such as those of the main proceedings, could not undoubtedly have brought an admissible action on the basis of Article 230 EC to annul:

– Article 24(2) of Council Regulation (EEC) No 1785/81 of 30 June 1981 on the common organisation of the markets in the sugar sector;

– Article 27(3) of Council Regulation (EC) No 2038/1999 of 13 September 1999 on the common organisation of the markets in the sugar sector;

– Article 11(2) of Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector;

Therefore, such a person may, in proceedings brought under national law, plead the illegality of those provisions even though it has not brought an action for annulment of those provisions before the Community Courts within the time‑limit laid down in Article 230 EC.

2. The examination of the second question has not revealed any factor such as to affect the validity of Article 24(2) of Regulation No 1785/81, Article 27(3) of Regulation No 2038/1999, Article 1 of Regulation No 2073/2000, Article 11(2) of Regulation No 1260/2001, Article 1 of Regulation No 1745/2002 or Article 1 of Regulation No 1739/2003.