Case C‑183/16 P
Tilly-Sabco SAS
v
European Commission
Appeal — Agriculture — Poultrymeat — Frozen chickens — Export refunds — Implementing Regulation (EU) No 689/2013 fixing the refund at EUR 0 — Legality — Regulation (EC) No 1234/2007 — Articles 162 and 164 — Subject matter and nature of the refunds — Criteria for fixing the amount — Powers of the Director-General of the Directorate-General (DG) for Agriculture and Rural Development to sign the contested regulation — Misuse of powers — ‘Comitology’ — Regulation (EU) No 182/2011 — Article 3 (3) — Consultation with the Committee for the Common Organisation of the Agricultural Markets — Presentation of the draft implementing regulation during the meeting of that committee — Compliance with time limits — Infringement of essential procedural requirements — Annulment with maintenance of the effects)
Summary — Judgment of the Court (First Chamber), 20 September 2017
Agriculture—Common organisation of the markets—Export refunds—Subject-matter—Decision to introduce or withdraw refunds—Discretion of the Commission
(Arts 39 TFEU and 40 TFEU; Council Regulation No 1234/2007, Recitals 65 and 77 and Arts 162 and 164(3) (b))
Agriculture—Common organisation of the markets—Export refunds—Fixing of amounts—Fixing of the amount at zero for the first time in respect of the products concerned—Lawfulness
(Council Regulation No 1234/2007, Art. 164(2) and (3); Commission Regulation No 689/2013)
Actions for annulment—Pleas in law—Misuse of powers—Concept
(Art. 263 TFEU)
EU institutions—Exercise of powers—Implementing power conferred on the Commission—Review by a committee composed of representatives of the Member States—Consultation procedure—Period for submitting an implementing measure—Non-compliance—Justification with regard to an earlier practice developed in the context of the comitology procedures—Not permissible
(Art. 291(2) and (3) TFEU; European Parliament and Council Regulations No 182/2011, Art. 3(3), (4), 7 and 8; Council Decisions 87/373, Art. 2, and 1999/468, Arts 3(2) and 4(2))
EU institutions—Exercise of powers—Implementing power conferred on the Commission—Review by a committee composed of representatives of the Member States—Consultation procedure—Period for submitting an implementing measure—Non-compliance—Consequences—Invalidity of the act concerned
(Art. 291 TFEU; European Parliament and Council Regulation No 182/2011, Art. 3(3))
Actions for annulment—Pleas in law—Infringement of essential procedural requirements—Non-compliance with a time-limit imposed by the EU legislature—To be considered of the Court’s own motion
(Art. 263 TFEU; Council Regulation No 182/2011, Art. 3(3))
Actions for annulment—Judgment annulling a measure—Effects—Limitation by the Court—Maintenance of the effects of the contested measure until its replacement within a reasonable period—Justification on grounds of legal certainty
(Art. 264, second para., TFEU; Commission Regulation No 689/2013)
It is clear from a combined reading of Articles 39 and 40 TFEU, recitals 65 and 77 of Regulation No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMC Regulation) and Article 164(3) (b) thereof, that the main objective pursued by the grant, where appropriate, of export refunds is to stabilise the internal market. In that connection, Article 162 of Regulation No 1234/2007 grants a wide margin of discretion to the Commission as to whether or not to introduce export refunds and, therefore, to withdraw any refunds introduced.
(see paras 49, 50)
As regards fixing export refunds, since no specific amount or any particular method of calculation are imposed by Article 164(3) of Regulation No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMC Regulation) there is nothing to prevent the examination by the Commission of the elements set out in that provision resulting in temporarily fixing the amount at zero. Furthermore, as Article 164(2) of that regulation allows the Commission either to maintain the refunds at the same level for more than three months or to adjust them in the intervening period, it cannot be held that that provision requires it to systematically convene meetings of the Management Committee every three months solely for the purpose of renewing the refunds previously fixed. Such an interpretation, which would require the Commission and the Management Committee to hold unnecessary meetings, would be incompatible with the principle of proper administration.
Finally, given that, under the same provisions of Article 164(3) of Regulation No 1234/2007, the Commission may fix export refunds on the basis of one or more of several elements laid down in that provision, it must be held that a regulation adopted on the basis of that provision is not vitiated by a manifest error of assessment if that assessment could validly be based on at least one of those elements.
(see paras 54-56)
See the text of the decision.
(see paras 64, 66, 67)
As far as concerns the procedure for the adoption by the Commission of implementing measures, the first time limit laid down by Article 3 (3) of Regulation No 182/2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers is to enable an unhurried examination of a draft implementing act before a meeting, by the Management Committee members, and that the second must enable them to express their views on the draft. Furthermore, since Article 291 (3) TFEU expressly provides for control by Member States of the Commission’s exercise of implementing powers conferred on it by paragraph 2 of that article, it must be held that the first time-limit also aims to guarantee that the governments of the Member States are informed through their Management Committee members about the Commission’s proposals, so that those governments may, by means of internal and external consultations, define a position in order to protect the specific interests of each of them within the Management Committee. As is clear from Article 3 (7) of Regulation No 182/2011, the members of the Management Committee are representatives of those governments which are responsible for deciding the appropriate level of their representation at the various stages of the procedure.
In those circumstances, it must be held that a practice consisting in the submission of the draft of an implementing act to the Management Committee only in the course of a meeting convened in order to the examine it is incompatible with both the wording and the objectives pursued by Article 3 (3) of Regulation No 182/2011. By proceeding in that way, the Commission fails to comply with the first time limit of 14 days. Moreover, such a practice is contrary to the scheme of Regulation No 182/2011, Article 8 of which authorises the Commission to adopt, where necessary, regulations which are directly applicable without prior consultation of the Management Committee. Finally, that practice, which makes it impossible for the Management Committee members to express their views or suggest amendments before the relevant meeting, is contrary to Article 3(4), first subparagraph, of that regulation, according to which those members must be in a position to do so at any time before the adoption of that act.
It follows that, although the Commission’s consistent practice could fit within the previous legal framework for the adoption of that regulation, that is the framework defined by the comitology decisions, the amendments to primary law resulting from the adoption of the FEU Treaty and, subsequently, those of secondary legislation resulting from the adoption of Regulation No 182/2011, preclude its continuation.
(see paras 102-107, 113)
The requirements laid down by Article 3 (3) of Regulation No 182/2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers are essential procedural requirements intended by the FEU Treaty, which are essential procedural requirements governing the proper conduct of proceedings, breach of which renders the act concerned void.
(see para. 114)
See the text of the decision.
(see paras 115, 116)
See the text of the decision.
(see paras 122-125)