29.10.2005

Official Journal of the European Union

C 271/25

Action brought on 8 September 2005 — Kingdom of Spain v Commission of the European Communities

(Case T-341/05)

(2005/C 271/49)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: J.M. Rodríguez Cárcamo, abogado del Estado)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

—	annul the inclusion of Ceuta and Melilla in the L01 category in the Annex to Commission Regulation (EC) No 909/2005 of 16 June 2005 fixing the export refunds on milk and milk products;

—	order the Commission to pay the costs.

Pleas in law and main arguments

This action is brought against Commission Regulation (EC) No 909/2005 of 16 June 2005 fixing the export refunds on milk and milk products, (1) in so far as it excludes Ceuta and Melilla as destinations qualifying for export refunds for milk products in general. The objective of such an exclusion is to put an end to certain unlawful commercial transactions consisting in exporting certain products to those two destinations and collecting the relevant refund, before processing the products and re-importing them into Community territory without paying any customs duties.

In support of its claims, the Kingdom of Spain invokes:

—

infringement of Article 31(3) of Council Regulation (EC) No 1255/1999 of 17 May 1999 on the common organisation of the market in milk and milk products, (2) either because there is no justification for the contested measure in any of the reasons stated in Article 31 or, in the alternative, because the measure is based on facts which have not been proved.

—

infringement of Article 31(2) of that regulation on the ground that account has not been taken of the nature of the product. It is stated in that regard that, even supposing that the elimination of fraud could justify the abolition of refunds for a specific destination, the measure was adopted with account being taken only of the destination of the export, affecting without distinction all products whose export to Ceuta and Melilla was eligible for a refund. It is also claimed that there is an infringement of the same provision on account of the discrimination between producers to which the contested measure is said to give rise.

—	infringement of the principle of non-discrimination.

—	misuse of powers.

(1) OJ L 154 of 17.6.2005, p. 10.

(2) OJ L 160 of 26.6.1999, p. 48.