Keywords
Summary

Keywords

1. Actions for annulment - Natural or legal persons - Measures of direct and individual concern to them - Council decision confining the application of the ACP/OCT cumulation of origin rule in respect of sugar from the OCTs - Action brought by an undertaking active in sugar processing in the OCTs - Inadmissible

(EC Treaty, Art. 173, fourth para. (now, after amendment, Art. 230, fourth para., EC); Council Decision 97/803)

2. Non-contractual liability - Conditions - Legislative measure involving choices of economic policy - Sufficiently serious breach of a superior rule of law for the protection of individuals

(EC Treaty, Art. 215, second para. (now Art. 288, second para., EC))

3. Community law - Principles - Protection of legitimate expectations - Limits - Amendments to rules concerning the association of the overseas countries and territories - Discretionary power of the institutions - Obligation on the Council to take account of the situation of undertakings already active on the market - None

(EC Treaty, Art. 132 (now Art. 183 EC) and Art. 136 (now, after amendment, Art. 187 EC); Council Decision No 91/482, Art. 240(3))

Summary

1. The action brought by a sugar business established in the overseas countries and territories against Decision 97/803 amending at mid-term Decision 91/482 on the association of the overseas countries and territories (OCTs), by which the Council confined the application of the ACP/OCT cumulation of origin rule in respect of sugar from the OCTs, is inadmissible.

For a measure of general application to be of individual concern to a natural or legal person, that person must be affected by the measure at issue by virtue of certain attributes which are peculiar to that person, or circumstances must exist in which that person is differentiated from all other persons. First, the fact that Decision 97/803 affects the applicant's economic activity is not sufficient to differentiate it, within the meaning of the fourth paragraph of Article 173 of the Treaty (now, after amendment, the fourth paragraph of Article 230 EC), from any other trader, since it is in an objectively determined situation comparable with that of any other undertaking which might now or at some time in the future be established in one of the OCTs and which is or might become active on the sugar market.

Second, while the fact that a Community institution is, by virtue of specific provisions, under a duty to take account of the consequences of a measure which it envisages adopting for the situation of certain individuals is such as to distinguish them individually, the fact nevertheless remains that, at the time of the adoption of Decision 97/803, which cannot be considered to be a safeguard measure falling within the scope of Article 109 of Decision 91/482, the Council had no duty under Community law to take into consideration the specific situation of the applicant.

Third, the fact that the applicant has made investments and concluded supply contracts is referable to the economic decision it has made in the light of its own commercial interests. Such a situation, which arises out of the normal activity of any undertaking active in sugar processing, is not capable of differentiating the applicant for the purposes of the fourth paragraph of Article 173 of the Treaty.

Fourth, no provision of Community law required the Council, in reviewing the OCT Decision, to follow a procedure during which the applicant would have the right to be heard. Lastly, the fact that the contested decision escaped all democratic scrutiny cannot give rise to non-application of the rules for admissibility laid down in the fourth paragraph of Article 173 of the Treaty.

( see paras 49-50, 52-56 )

2. As regards the non-contractual liability of the Community, a right to reparation is acknowledged where three cumulative conditions are met: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious, and there must be a direct causal link between the breach of the obligation resting on the Community and the damage sustained by the injured parties. Infringement of Article 190 of the Treaty (now Article 253 EC) is not sufficient for the Community to incur non-contractual liability. By contrast, the principle of proportionality and the principle of protection of legitimate expectations do constitute rules of law conferring rights on individuals.

( see paras 59, 63-64 )

3. The Council, which has a broad discretion when weighing the objectives of the association of the overseas countries and territories (OCTs) against those of the common agricultural policy is entitled to reduce or even remove an advantage previously granted to the OCTs where its application is liable to lead to significant disturbances in the functioning of a common market organisation. Whilst the protection of legitimate expectations is one of the fundamental principles of the Community, traders cannot have a legitimate expectation that an existing situation which is capable of being altered by the Community institutions in the exercise of their discretion will be maintained.

A trader exercising due care ought therefore to have foreseen that Decision 91/482 on the association of the overseas countries and territories could be amended and that an amendment could, in some circumstances, mean the removal or restriction of advantages previously granted to the OCTs. That analysis is all the more inescapable as the advantages concerned are of an extraordinary nature. In addition, the Council was not required by any provision of Community law to take account of the interests of undertakings already present on the market. Article 240(3) of Decision 91/482, which provides that, before the end of the first five years, the Council is to establish, where necessary, any amendments to be made to the provisions governing the association between the OCTs and the Community, cannot deprive the Council of its competence, conferred directly by the Treaty, to amend the acts which it has adopted under Article 136 (now, after amendment, Article 187 EC) thereof in order to attain all the objectives set out in Article 132 of the Treaty (now Article 183 EC).

( see paras 86-89 )