24 March 2017 (*1)

‛Actions for annulment — Agriculture — Common organisation of the markets — Measures to be adopted in consequence of the accession of new Member States — Amounts to be charged for quantities of surplus sugar not eliminated — Request for modification of a final decision of the Commission — Refusal of the request — Act not open to challenge — Confirmatory measure — No new substantive particulars — Inadmissibility’

In Case T‑117/15,

Republic of Estonia, represented by K. Kraavi-Käerdi, acting as Agent,

applicant,

supported by

Republic of Latvia, represented by I. Kalniņš and D. Pelše, acting as Agents,

intervener,

European Commission, represented initially by L. Naaber-Kivisoo and M.P. Ondrůšek, acting as Agents, then by M. Ondrůšek, assisted by M. Kärson, lawyer,

defendant,

ACTION under Article 263 TFEU for annulment of the decision allegedly contained in the European Commission’s letter of 22 December 2014 declining to amend European Commission Decision 2006/776/EC of 13 November 2006 on the amounts to be charged for the quantities of surplus sugar not eliminated (OJ 2006 L 314, p. 35),

THE GENERAL COURT (First Chamber, Extended Composition),

composed of H. Kanninen (Rapporteur), President, I. Pelikánová, E. Buttigieg, S. Gervasoni and L. Calvo-Sotelo Ibáñez-Martín, Judges,

Registrar: S. Bukšek Tomac, Administrator,

having regard to the written part of the procedure and further to the hearing on 7 September 2016,

gives the following

Background to the dispute

Primary law

In the round of enlargement of the European Union which resulted in the accession, on 1 May 2004, of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic (‘the new Member States’) to the European Union (‘the accession’), the European Union and the new Member States entered into negotiations on a number of issues, grouped into negotiating chapters. The negotiations in the context of the chapter relating to agriculture related inter alia to the legal position of the stocks of agricultural products in free circulation exceeding the quantity which could be regarded as constituting a normal carryover of stock (‘the surpluses’) within the territory of the new Member States at the date of accession.

That issue is governed, pursuant to Article 22 of the Act concerning the conditions of accession of the new Member States and the adjustments to the Treaties on which the European Union is founded (OJ 2003 L 236, p. 33) (‘the Act of Accession’), by Point 4 of Annex IV to the Act of Accession, which provides:

‘…

The concept of normal carryover stock shall be defined for each product on the basis of criteria and objectives specific to each common market organisation.

…’

…’

3.3

Article 2(3) of the Treaty between the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland (Member States of the European Union) and the new Member States concerning the accession of the new Member States to the European Union (OJ 2003 L 236, p. 17) (‘the Treaty of Accession’), signed at Athens on 16 April 2003, provides that the institutions of the Union may adopt before accession the measures referred to inter alia in Article 41 of and Annex IV to the Act of Accession. The first paragraph of Article 41 of that Act provides that the transitional measures necessary to facilitate the transition from the existing regime in the new Member States to that resulting from the application of the common agricultural policy (CAP) under the conditions set out in that Act may be taken by the Commission during a period of three years following the date of accession and their application is to be limited to that period.

Measures adopted by the Union before accession

On 10 November 2003, the Commission adopted, on the basis of Article 2(3) of the Treaty of Accession and the first paragraph of Article 41 of the Act of Accession, Regulation (EC) No 1972/2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2003 L 293, p. 3).

As is apparent from recital 1 in the preamble to Regulation No 1972/2003, transitional measures were to be adopted in order to avoid the risk of deflection of trade affecting the common organisation of agricultural markets due to the accession. Recital 3 in the preamble to the regulation states that such deflections often involve products which are moved artificially with a view to enlargement and thus do not form part of the normal stocks of the State concerned, although surplus stocks may also result from national production. Finally, it is stated that provision should accordingly be made for deterrent charges to be levied on surplus stocks in the new Member States.

6.6

Article 4 of Regulation No 1972/2003, as last amended by Commission Regulation (EC) No 735/2004 of 20 April 2004 (OJ 2004 L 114, p. 13), provides for a system of charges on surplus stocks of certain agricultural products in free circulation, which does not include sugar existing on the territory of the new Member States at the date of accession. Article 4(1) states that, without prejudice to Point 4 of Annex IV to the Act of Accession, and where stricter legislation does not apply at national level, the new Member States are to levy charges on holders of such stocks. Article 4(3) of Regulation No 1972/2003, as amended, lays down the amount of the charge in question and provides that the revenue of the charge is to be assigned to the national budget of the new Member State concerned. Lastly, Article 4(5) of the regulation contains a list, which is different for each new Member State, of the agricultural products to which the charge applies. Those agricultural products are identified using Combined Nomenclature (CN) codes set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), which is updated by the Commission once a year. The update applicable to the facts of the present case occurred on 1 January 2004, the date on which Commission Regulation (EC) No 1789/2003 of 11 September 2003 amending Annex I to Regulation No 2658/87 (OJ 2003 L 281, p. 1) entered into force.

On 14 January 2004, the Commission adopted, also on the basis of Article 2(3) of the Treaty of Accession and the first paragraph of Article 41 of the Act of Accession, Regulation (EC) No 60/2004 laying down transitional measures in the sugar sector by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2004 L 9, p. 8).

8.8

Article 6(1) of Regulation No 60/2004, as amended by Commission Regulation (EC) No 651/2005 of 28 April 2005 (OJ 2005 L 108, p. 3), provides that the Commission must determine by 31 May 2005 at the latest the quantity of sugar as such or in processed products, isoglucose and fructose exceeding the quantity considered as being normal carryover stock existing within the territory of each new Member State (‘the surplus of sugar’) at 1 May 2004. That provision also sets out the way in which the Commission must determine that surplus.

9.9

Article 4 of Regulation No 60/2004 defines the terms ‘sugar’, ‘isoglucose’ and ‘fructose’ for the purposes of application of Articles 4 to 7 of that regulation using various CN codes.

10.10

Article 6(2) of Regulation No 60/2004, as amended, provides that each new Member State concerned must ensure, without Union intervention, the elimination from the market of a quantity of sugar or isoglucose equal to its surplus of sugar. The elimination may be carried out, by 30 November 2005 at the latest, by export of that surplus without refund from the Union, by its use in the sector of combustibles or by its denaturation.

Under Article 6(3) of the Regulation, each new Member State must, on 1 May 2004, have in place a system for the identification of surplus stocks of sugar as such or in processed products, isoglucose and fructose, at the level of the main operators concerned, which it must use to compel those operators to eliminate from the market at their own expense a quantity of sugar or isoglucose equivalent to their surplus stock. Those operators must provide proof of that elimination by 30 November 2005 at the latest. Otherwise, the new Member State must require those operators to pay a financial contribution proportionate to the non-eliminated quantity, which is to be assigned to its national budget.

12.12

Article 7(1) of Regulation No 60/2004, as amended, provides that, by 31 March 2006 at the latest, the new Member States must provide proof to the Commission of the elimination of their surplus of sugar. Article 7(2) of the regulation provides that each new Member State concerned must be charged an amount proportionate to that part of its surplus of sugar for which proof of elimination has not been provided. That amount will be assigned to the Community budget and taken into account for the calculation of the production levies for the marketing year 2004/05.

13.13

Regulations Nos 1789/2003, 1972/2003 and 60/2004 were published in Estonian in the Official Journal of the European Union on 6 August 2004, 3 March 2005 and 4 July 2004 respectively.

Measures adopted by the Republic of Estonia prior to the accession

14.14

On 7 April 2004, the Republic of Estonia adopted the Üleliigse laovaru tasu seadus (Law on the surplus stock charge, RT I 2004, 30, 203). By judgment of 5 October 2006, the Riigikohus (Supreme Court, Estonia) declared Article 6(1) of that law inapplicable as being contrary to Regulation No 1972/2003. The court found that the requirement introduced by that provision to apply a coefficient of 1.2 in calculating the carryover stock did not allow a sufficiently differentiated treatment of each operator. In order to give effect to that judgment, the Estonian Parliament, by a law adopted on 25 January 2007 (RT I 2007, 12, 65), made several amendments to the initial law. That law as amended (‘the ÜLTS’) entered into force on 16 February 2007 and applies retrospectively to situations that have arisen from 1 May 2004.

Under Article 4 of the ÜLTS, Estonian operators must pay a tax for the surplus stock in their possession which was not eliminated from the market within the time prescribed.

16.16

Under Article 7 of the ÜLTS, the ‘surplus stock’ of each operator is equal to the difference between the stock actually held at 1 May 2004 and the carryover stock.

Article 6 of the ÜLTS defines ‘carryover stock’ as the annual average stock held during the four years preceding the accession (2000 to 2003) multiplied by 1.2. To mitigate the strictness of that rule for operators who did not carry on a relevant activity during those four reference years, Article 6 also enacted two special rules, as set out below.

18.18

Under Article 10 of the ÜLTS, the carryover stock and the surplus stock are calculated by the Ministry of Agriculture on the basis of declarations made by the operator. The Ministry of Agriculture may, further to a duly reasoned application from the operator, take account of certain factors that may explain an increase in stocks, apart from any speculation.

19.19

Article 12 of the ÜLTS places operators under an obligation to eliminate surplus stocks of sugar using the methods laid down in Regulation No 60/2004.

Measures adopted by the Union following the accession

On 31 May 2005, the Commission calculated the surplus of sugar of each new Member State by adopting Commission Regulation (EC) No 832/2005 on the determination of surplus quantities of sugar, isoglucose and fructose for the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2005 L 138, p. 3). Article 1 of that regulation fixed the quantity of sugar having to be eliminated from the internal market by each of the five new Member States for which a surplus of sugar had been definitively established.

21.21

On 13 November 2006, the Commission adopted Commission Decision 2006/776/EC on the amounts to be charged for the quantities of surplus sugar not eliminated (OJ 2006 L 314, p. 35) (‘the sugar decision’). In that decision, the Commission observed that three of the five new Member States referred to in paragraph 20 above had provided proof of the elimination of part of the surplus sugar established in Regulation No 832/2005 within the time period laid down Article 7(1) of Regulation No 60/2004. Next, it calculated the amount to be charged by the five Member States concerned for the surplus for which such proof had not been provided, in accordance with Article 7(2) of Regulation No 60/2004. That amount was calculated for each Member State concerned by multiplying the non-eliminated quantities by the highest export refund applicable to white sugar under CN code 1701 99 10 in the period between 1 May 2004 and 30 November 2005. Pursuant to Article 1 of the sugar decision, the Republic of Estonia was charged EUR 45686268, which it paid into the Union budget in a number of instalments within the time prescribed by Article 2 of that decision and with the final instalment having been paid in December 2009.

22.22

On 4 May 2007, the Commission of the European Communities adopted, on the basis of Point 4(4) of Annex IV to the Act of Accession, Decision 2007/361/EC on the determination of surplus stocks of agricultural products other than sugar and the financial consequences of their elimination in relation to the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2007 L 138, p. 14) (‘the decision on agricultural products’). In that decision, it calculated the surplus of agricultural products existing on the territory of the new Member States on the date of accession and the amounts to be charged to the nine Member States for which surpluses had been established in order to cover the costs of the elimination of those surpluses. Those amounts, considered revenues accruing to the Union budget, were to be paid in four instalments, with the last one due on 31 May 2010. The Republic of Estonia was charged EUR 6584000, which it paid into the Union budget within the time prescribed.

Judgments relied on

23.23

By judgments of 29 March 2012, Czech Republic v Commission (T‑248/07, not published, EU:T:2012:170), and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171), against which no appeal was lodged, the General Court annulled the decision on agricultural products on the ground that the method for eliminating the surplus agricultural products provided for by that decision did not comply with Point 4(2) of Annex IV to the Act of Accession.

By judgment of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450), the Court of Justice gave a preliminary ruling in response to a reference made pursuant to Article 267 TFEU by the Riigikohus (Supreme Court) concerning the interpretation of Article 288 TFEU, Article 297(1) TFEU and Article 58 of the Act of Accession. The question had arisen in proceedings involving an Estonian undertaking and the Estonian authorities concerning the collection of a tax on surplus stocks of certain agricultural products in its possession that had been calculated and charged pursuant to the ÜLTS. At the heart of the dispute was the issue of the enforceability of the ÜLTS as against the undertaking concerned. The referring court had doubts on that point, given that, firstly, the ÜLTS referred to a number of provisions of Regulations Nos 1789/2003 and 1972/2003 and, secondly, the publication of those regulations in Estonian in the Official Journal had taken place after 1 May 2004 but before the assessment notice had been received by the undertaking.

The Court of Justice held that, by adopting the ÜLTS, the Republic of Estonia had implemented the obligations under Regulation No 1972/2003 by introducing a charge on surplus stocks of agricultural products and defining how that charge was to be calculated. However, it held, firstly, that when the ÜLTS had entered into force on 1 May 2004, individuals had not been in a position to acquaint themselves with the products subject to the charge on surplus stocks by consulting EU legislation which had been properly published in Estonian in the Official Journal; secondly, that the ÜLTS had not defined those products, but simply made a reference to Article 4(5) of Regulation No 1972/2003; and, thirdly, that individuals had not been in a position to identify those products by consulting the national legislation, since the Estonian customs nomenclature had been repealed with effect from 1 May 2004. It concluded therefrom that the relevant provisions of Regulations Nos 1789/2003 and 1972/2003 could not be enforced against individuals in Estonia with effect from 1 May 2004, since they had not been properly published in Estonian in the Official Journal or reproduced in Estonian national law (judgment of 12 July 2012, Pimix, C‑146/11, EU:C:2012:450, paragraphs 39, 41 and 42).

The Court of Justice further held that that conclusion was not called into question by the fact that the undertaking concerned in the main proceedings was, in practice, aware of the extent of its obligations from 1 May 2004 or by the concern of upholding the objective of Regulation No 1972/2003 (judgment of 12 July 2012, Pimix, C‑146/11, EU:C:2012:450, paragraphs 43 to 46).

The Court of Justice thus replied to the questions referred by the national court by stating that Article 58 of the Act of Accession had to be interpreted as precluding, in Estonia, the application to individuals of provisions of Regulation No 1972/2003 which, as at 1 May 2004, had neither been published in Estonian in the Official Journal nor reproduced in the national law of that Member State, even though those individuals could have learned of those provisions by other means (judgment of 12 July 2012, Pimix, C‑146/11, EU:C:2012:450, paragraph 47).

The Republic of Estonia’s request for modification of the sugar decision

By letter of 2 August 2012, the Republic of Estonia requested the Directorate-General (DG) for Agriculture and Rural Development of the Commission to provide its point of view on the planned operations, in the light of the judgments of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450); of 29 March 2012, Czech Republic v Commission (T‑248/07, not published, EU:T:2012:170); and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171), as regards reimbursement of the amounts charged and paid into the Union budget by the new Member States due to there being surpluses of agricultural products, inter alia due to the existence of surpluses of sugar. On 17 September and 8 November 2012, officials of the Republic of Estonia met with officials from the Commission departments to discuss the issue.

By letter of 15 November 2012, the Commission informed the Republic of Estonia that the payments made by it into the Union budget further to the decision on agricultural products would be repaid to it. The reimbursement was made at the end of December 2012.

On 21 February 2013, officials of the Republic of Estonia met with officials from the Commission departments in order to discuss potential reimbursement of the amounts paid by the Republic of Estonia into the Union budget further to the sugar decision.

By letter of 18 September 2013, addressed to the DG for Agriculture and Rural Development, the Republic of Estonia, considering that it had not received a complete response to its letter of 2 August 2012, explained the content thereof, supplemented its statement of reasons and requested the Commission to reconsider and modify the sugar decision in the light of the judgments of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450); of 29 March 2012, Czech Republic v Commission (T‑248/07, not published, EU:T:2012:170); and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171) having the effect of reimbursing the payments made into the Union budget in compliance with that decision.

By letter of 22 December 2014 (‘the contested measure’), the Director-General of the DG for Agriculture and Rural Development (‘the Director-General’) replied to the Republic of Estonia to the effect that it was not necessary to modify the sugar decision.

Procedure and forms of order sought

By application lodged at the Registry of the General Court on 4 March 2015, the Republic of Estonia brought an action for annulment of the contested measure pursuant to Article 263 TFEU.

By document lodged at the Court Registry on 1 July 2015, the Republic of Latvia applied for leave to intervene in the case in support of the forms of order sought by the Republic of Estonia, which leave was granted by the President of the First Chamber of the General Court on 2 September 2015. It did not lodge a statement in intervention, however.

By decision of 15 June 2016, the Court acting on a proposal from the First Chamber, referred the case to the First Chamber, Extended Composition, pursuant to Article 28(1) to (3) of the Rules of Procedure of the General Court.

The Court (First Chamber, Extended Composition) acting on a proposal from the Judge-Rapporteur, decided to open the oral part of the procedure and, on 13 July 2016, by way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, requested the parties to respond to certain questions, which they did within the prescribed period.

At the hearing of 7 September 2016, which was not attended by the Republic of Latvia, the Republic of Estonia and the Commission presented oral arguments and answered the questions put to them by the Court.

The Republic of Estonia, supported by the Republic of Latvia, claims that the Court should:

—annul the contested measure;

—order the Commission to pay the costs.

The Commission contends that the Court should:

—by way of principal claim, dismiss the action as inadmissible;

—in the alternative, dismiss the action as unfounded;

—order the Republic of Estonia to pay the costs.

Without formally raising an objection of inadmissibility of the action by separate document, the Commission submits that the contested measure is not an act open to challenge and that the action is therefore inadmissible, which the Republic of Estonia disputes.

The Commission raises, in essence, two pleas of inadmissibility, the first directed, by way of principal claim, at the nature of the contested measure, which it submits is merely an expression of opinion and the second, put forward in the alternative, alleging that the measure is confirmatory in nature.

The first plea of inadmissibility

The Commission submits, first of all, that since the Republic of Estonia owed the amounts referred to in the sugar decision before the adoption of the contested measure and continued to do so afterwards, that measure has not entailed any legal consequences and, secondly, that the measure is merely a technical analysis of the influence of the judgments of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450)

); of 29 March 2012, Czech Republic v Commission (T‑248/07, not published, EU:T:2012:170); and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171), on the sugar decision. In its response to the Court’s written questions and at the hearing, the Commission provided further explanation of the latter argument. It stated that the contested measure was not a decision in the true sense of the term refusing to modify the sugar decision, but rather merely an expression of opinion, attributable to the DG for Agriculture and Rural Development. On that point, it added at the hearing that the Republic of Estonia had not put forth a clear request for modification of the sugar decision and had instead asked for the opinion of the DG for Agriculture and Rural Development as to the possibility of re-examining that decision. The contested measure thus contains the technical opinion requested.

The Republic of Estonia disputes the Commission’s arguments.

In actions for annulment brought by Member States or institutions, any measures adopted by the Union institutions, whatever their form, which are intended to have binding legal effects are regarded as acts open to challenge within the meaning of Article 263 TFEU (see judgment of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 36 and the case-law cited). Those effects must be assessed in accordance with objective criteria, such as the contents of that measure, taking into account, as appropriate, the context in which it was adopted (judgment of 13 February 2014, Hungary v Commission, C‑31/13 P, EU:C:2014:70, paragraph 55).

Not every letter sent by a Union institution in response to a request made by the addressee constitutes a decision for the purposes of Article 263 TFEU (see, to that effect, order of 27 January 1993, Miethke v Parliament, C‑25/92, EU:C:1993:32, paragraph 10). In particular, a written expression of opinion from a Union institution cannot constitute a decision open to challenge through an action for annulment if it is expressed in a field in which that institution has no decision-making power, but only the possibility of expressing its opinion, which does not bind the competent authorities, and there is nothing in the wording or content of that expression to indicate that it is intended to produce any legal effects whatsoever (see, to that effect, judgment of 27 March 1980, Sucrimexand Westzucker v Commission, 133/79, EU:C:1980:104, paragraphs 16 to 18).

It is apparent from the discussion in paragraphs 28 to 32 above that the contested measure put an end to a long series of exchanges between the Commission and the Republic of Estonia and constitutes a response to the letter sent by it to the Commission on 18 September 2013.

The letter addressed on 18 September 2013 by the Republic of Estonia to the Commission begins with the following statement: ‘Request for modification of the [sugar decision]’. It comprises two parts. The first part contains a description of the facts. The second, entitled ‘Request from [the Republic of Estonia]’, contains a detailed statement of reasons as to how the sugar decision is incompatible with the judgments of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450); of 29 March 2012, Czech Republic v Commission (T‑248/07, not published, EU:T:2012:170); and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171), read together. In the last paragraph of the second part, the Republic of Estonia states that there should be a re-examination and modification of the [sugar decision] based on the interpretation of the legal measures of the Union adopted in [the judgments of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450); of 29 March 2012, Czech Republic v Commission (T‑248/07, not published, EU:T:2012:170); and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171)] in order to bring the decision into line with the meaning and scope of [the measures concerned], as they ought to have been construed and applied since their entry into force’.

It should thus be noted that, by its letter of 18 September 2013, the Republic of Estonia was not seeking to obtain merely a technical analysis from the DG for Agriculture and Rural Development as to the theoretical possibility of re‑examining the sugar decision. It was a request for reconsideration and modification of that decision.

The wording of the contested measure confirms that the Director-General himself had considered the letter of 18 September 2013 to be a request for modification of the sugar decision.

To begin with, the contested measure begins as follows: ‘Re: Your requests for modification of [the sugar decision]’.

Next, in the contested measure, the Director-General stated that the Republic of Estonia had been in contact with the Commission on a number of occasions ‘in order to obtain modification of the sugar decision’.

Lastly, the Director-General stated that he wished to put forward two types of arguments ‘so as not to accept the [the Republic of Estonia’s] request for modification of the sugar decision’.

Accordingly, the last sentence of the contested measure, according to which, given what had been stated earlier therein, the DG for Agriculture and Rural Development did not find that the sugar decision was vitiated by any errors such as to require modification, is not merely the expression of a straightforward technical opinion; rather, it is — contrary to the Commission’s assertion — a request for modification of the sugar decision.

The Commission had the power to reconsider and, if necessary, modify the sugar decision previously adopted by it. Furthermore, it is clear from the wording and content of the contested measure that the Commission intended thereby to refuse definitively the Republic of Estonia’s request for modification of the sugar decision. The contested measure cannot, therefore, be regarded as amounting to merely an expression of opinion without any legal effect.

The fact, relied on by the Commission, that the Republic of Estonia owed the amounts referred to in the sugar decision even before the adoption of the contested measure and continued to do so afterwards has no bearing on the foregoing conclusion.

Although the contested measure did not lead to any financial obligation whatsoever being imposed on the Republic of Estonia, that does not necessarily mean that it is devoid of legal effect, inasmuch as it sets out a definitive refusal to the Republic of Estonia’s reasoned request seeking modification of the sugar decision, which it believed it was entitled to obtain.

The first plea of inadmissibility must therefore be rejected.

The second plea of inadmissibility

Preliminary observations

According to settled case-law, where the contested act is merely confirmatory, an action is admissible only if the act confirmed is challenged within the prescribed time limits. Thus, where an applicant lets the time limit for bringing an action against a decision unequivocally laying down a measure with legal effects affecting its interests and binding on it expire, it cannot start time running again by asking the author of the measure in question to reconsider its decision and bringing an action against the refusal confirming the decision previously taken (see judgments of 15 March 1995, COBRECAF and Others v Commission, T‑514/93, EU:T:1995:49, paragraph 44 and the case-law cited; of 10 July 1997, AssiDomän Kraft Products and Others v Commission, T‑227/95, EU:T:1997:108, paragraph 29 and the case-law cited; and order of 12 February 2010, Commission v CdT, T‑456/07, EU:T:2010:39, paragraph 54 and the case-law cited).

However, the existence of substantial new facts may justify the submission of a request for reconsideration of a previous decision which has become definitive. If a measure constitutes the reply to a request in which substantial new facts are relied on, and whereby the administration is requested to reconsider its previous decision, that measure cannot be regarded as merely confirmatory in nature, since it constitutes a decision taken on the basis of the supposed substantial new facts and thus contains a new factor as compared with the previous decision. Thus, after reconsideration, based on substantial new facts, of a decision which has become definitive, the institution concerned must take a new decision, the legality of which may where necessary be challenged before the EU judicature. However, in the absence of substantial new facts, the institution is not required to reconsider its earlier decision (judgments of 7 February 2001, Inpesca v Commission, T‑186/98, EU:T:2001:42, paragraphs 46 to 48, and of 13 November 2014, Spain v Commission, T‑481/11, EU:T:2014:945).

paragraphs 34 and 35).

It follows from that case-law that a measure is regarded as adopted after a re-examination of the circumstances, which prevents it from being confirmatory in nature, where that measure was adopted either at the request of the person concerned, or at the initiative of its author, on the basis of substantial factors which were not taken into account at the time of adoption of the preceding measure. It is precisely because those factors had not been taken into account at the time of adoption of the earlier measure that they are new. However, if the matters of fact or law on which the new measure is based are not different from those which justified the adoption of the preceding measure, that new measure is purely confirmatory of the preceding measure (judgment of 13 November 2014, Spain v Commission, T‑481/11, EU:T:2014:945, paragraphs 36 and 37).

In the present case, the Commission submits that, if the contested measure were to be held to be a decision and not merely an expression of opinion devoid of legal effect, it would be a confirmatory decision of the sugar decision. The Republic of Estonia is in reality seeking to circumvent the bar to bringing an action against that decision after the expiry of the time limit provided for in Article 263 TFEU. It cannot use as a basis for that attempt at circumvention the judgments of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450); of 29 March 2012; Czech Republic v Commission (T‑248/07, not published, EU:T:2012:170); and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171), as they merely explain the scope of certain provisions as they ought to have been construed from the time of their entry into force. It is not a new fact warranting reconsideration of a decision.

The Commission also submits a number of observations relating to the merits of the case, which show that the judgments of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450); of 29 March 2012, Czech Republic v Commission (T‑248/07, not published, EU:T:2012:170); and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171) cannot be considered substantial factors for the purposes of the case-law cited in paragraphs 59 and 60 above.

The Republic of Estonia responds to the Commission by stating that the contested measure is not a confirmatory decision, inasmuch as it examines the impact of three new factors on the sugar decision, namely the judgments of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450); of 29 March 2012, Czech Republic v Commission (T‑248/07, not published, EU:T:2012:170); and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171). The Republic of Estonia adds that it had not challenged that decision because it had no reason to doubt its lawfulness before judgment in the aforementioned cases was delivered. The consultations between the Republic of Estonia and the Commission that took place further to the request for modification of the sugar decision show that the Commission had not adopted its definitive position before the adoption of the contested measure.

The Republic of Estonia also disputes the Commission’s observations seeking to demonstrate that the judgments of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450); of 29 March 2012, Czech Republic v Commission (T‑248/07, not published, EU:T:2012:170); and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171) were not substantial factors for the purposes of the case-law cited in paragraphs 59 and 60 above.

It must therefore be considered whether the judgments of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450); of 29 March 2012, Czech Republic v Commission (T‑248/07, not published, EU:T:2012:170); and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171) may be considered to be substantial new factors for the purposes of the case-law cited in paragraphs 59 and 60 above.

Consideration of the question whether the judgments relied on may be held to be new factors

It is common ground that the judgments of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450); of 29 March 2012, Czech Republic v Commission (T‑248/07, not published, EU:T:2012:170); and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171) were delivered after the adoption of the sugar decision. Those judgments could not, therefore, be taken into consideration at the time of adoption of the sugar decision. The fact that those judgments are subsequent to the sugar decision does not make them new factors for the purposes of the case-law cited in paragraphs 59 and 60 above.

In support of its request for modification of the sugar decision, the Republic of Estonia relies not on the delivery of the judgments of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450); of 29 March 2012, Czech Republic v Commission (T‑248/07, not published, EU:T:2012:170); and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171) per se, or on any fact revealed by those judgments, but rather on an application by analogy of the legal reasoning followed by the EU Courts in those judgments.

Yet it was held in the judgment of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450) that it should be remembered that the interpretation which, in the exercise of the jurisdiction conferred upon it by Article 267 TFEU, the Court gives to a rule of EU law clarifies and defines, where necessary, the meaning and scope of that rule as it must be, or ought to have been, understood and applied from the time of its coming into force (see judgment of 12 February 2008, Kempter, C‑2/06, EU:C:2008:78, paragraph 35 and the case-law cited).

The judgment of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450) thus merely clarifies the existing state of the law, as it could have and should have been understood by the Commission — and the Republic of Estonia — at the time of adoption of the sugar decision.

As regards the judgments of 29 March 2012, Czech Republic v Commission (T‑248/07, not published, EU:T:2012:170), and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171), first of all it is clear that the irregularities affecting the decision on agricultural products, found in those judgments to be present and warranting its annulment and which, in the Republic of Estonia’s submission, also affected the sugar decision, were already present at the time of adoption of that decision and that there was nothing preventing the Republic of Estonia from relying on them in an action for annulment of that decision.

71.Secondly, the General Court’s legal reasoning in the judgments of 29 March 2012, Czech Republic v Commission (T‑248/07, not published, EU:T:2012:170), and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171) merely found that there were irregularities affecting the decision on agricultural products. It must be borne in mind that the only purpose of considering the grounds of the judgment which set out the precise reasons for the illegality found by the Union Court is to determine the exact meaning of the ruling made in the operative part of the judgment. Therefore, the authority of a ground of a judgment annulling a measure cannot apply to the situation of persons who were not parties to the proceedings and with regard to whom the judgment cannot therefore have decided anything whatsoever. In those circumstances, although Article 263 TFEU requires the institution concerned to ensure that any act intended to replace the annulled act is not vitiated by the same irregularities as those identified in the judgment annulling the original act, that provision does not mean that it must, at the request of interested parties, re-examine identical or similar decisions allegedly affected by the same irregularity, addressed to addressees other than the applicant (judgment of 14 September 1999, Commission v AssiDomän Kraft Products and Others C‑310/97 P, EU:C:1999:407, paragraphs 55 and 56).

72.Accordingly, the judgments of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450); of 29 March 2012, Czech Republic v Commission (T‑248/07, not published, EU:T:2012:170); and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171) cannot be regarded as being new factors for the purposes of the case-law cited in paragraphs 59 and 60 above. As rightly pointed out by the Commission, the Republic of Estonia is in reality seeking to circumvent the bar to bringing an action against the sugar decision after the expiry of the time limit provided for that purpose in Article 263 TFEU, which amounts to allowing the addressee of a measure to request modification thereof at any time, relying on subsequent case-law, and therefore limitless challenges to Union measures entailing legal effects. Yet the time limit laid down in Article 263 TFEU is aimed precisely at safeguarding legal certainty by precluding exactly this type of indefinite recourse to challenges (see, to that effect, judgment of 12 October 1978, Commission v Belgium, 156/77, EU:C:1978:180, paragraph 20). The mere fact that neither the administrative body, at the time of adoption of a decision, nor the addressee thereof, before the expiry of the time limit for bringing an action against that decision, considered or relied on legal interpretation or legal reasoning endorsed by an EU Court in a subsequent judgment does not affect the definitive nature of the decision concerned.

73.On that point, the Republic of Estonia submits, in its response to the written questions from the Court, that ‘the principle of … legal certainty cannot rule out the possibility of revision of an administrative decision if it appears to be contrary to EU law’, which has been confirmed inter alia by the considerations endorsed by the Court of Justice in the judgment of 19 September 2006, i-21 Germany and Arcor (C‑392/04 and C‑422/04, EU:C:2006:586, paragraph 52). However, although in that judgment the Court of Justice did recognise that there were limits on the principle of legal certainty in relation to administrative decisions contrary to EU law that have become definitive, which may warrant their being modified in certain circumstances, it indicated that those limits were not applicable when the party requesting reconsideration of the decision that has become definitive had not exhausted the remedies open to it to challenge that decision (see, to that effect, judgment of 19 September 2006, i-21 Germany and Arcor, C‑392/04 and C‑422/04, EU:C:2006:586, paragraphs 53 and 54).

74.In the absence of new factors for the purposes of the case-law cited in paragraphs 59 and 60 above, relied on by the Republic of Estonia in its request for reconsideration and on which the Commission ruled, the contested measure must be held to be a confirmatory of the sugar decision.

75.It is therefore only for the sake of completeness that it is appropriate to consider whether the judgments of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450); of 29 March 2012, Czech Republic v Commission (T‑248/07, not published, EU:T:2012:170); and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171) may be held to be substantial factors.

Consideration of the question whether the judgments relied on may be held to be substantial factors

76.A factor must be categorised as substantial in nature for the purposes of the case-law cited in paragraphs 59 and 60 above where it is capable of substantially altering the legal situation as considered by the authors of the earlier measure, such as, in particular, a factor that raises doubts as to the merits of the approach adopted by that measure (see judgment of 13 November 2014, Spain v Commission, T‑481/11, EU:T:2014:945, paragraph 39 and the case-law cited).

77.It is therefore appropriate to consider whether the judgments of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450); of 29 March 2012, Czech Republic v Commission (T‑248/07, not published, EU:T:2012:170); and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171) raise doubts as to the merits of the sugar decision.

78.That question was not addressed by the Republic of Estonia and the Commission specifically in terms of the admissibility of the action. However, in support of its first plea, the Republic of Estonia put forward a series of arguments in order to demonstrate that the unlawfulness of the sugar decision was apparent from a reading of the judgments of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450); of 29 March 2012, Czech Republic v Commission (T‑248/07, not published, EU:T:2012:170); and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171), which arguments are disputed by the Commission.

79.In that regard, the Republic of Estonia observes, in essence, that a combined reading of the judgments of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450); of 29 March 2012, Czech Republic v Commission (T‑248/07, not published, EU:T:2012:170); and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171) shows that the sugar decision was contrary to the provisions of Point 4(2) of Annex IV to the Act of Accession and Article 58 thereof. It submits, first of all, that the objective of the system for eliminating the surplus sugar adopted with a view to the accession was to avoid disturbances in the mechanisms provided for by the common organisation of the markets in sugar. It was with a view to achieving that objective that Regulation No 60/2004 imposed on the new Member States the two-fold obligation, firstly, to have in place, on 1 May 2004, a system for identifying surplus stock at the level of the main operators and, secondly, to require those operators to provide proof of the elimination of those stocks before 30 November 2005 or pay a charge for the non-eliminated quantity. The Republic of Estonia fulfilled that obligation by adopting the ÜLTS. It is, moreover, apparent from the judgment of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450), that, under Article 58 of the Act of Accession, a regulation not published in Estonian was not enforceable as against Estonian operators, even if they had been informed of the obligations resulting thereunder and had complied with them. Accordingly, the ÜLTS, referring to the provisions of Regulation No 60/2004 and the CN code for sugar resulting from Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), published in Estonian on 6 August and 4 July 2005 respectively, was not enforceable as against Estonian operators. The Republic of Estonia states that, for that reason, following the delivery of the judgment of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450), it reimbursed the Estonian operators concerned the amounts paid under the ÜLTS. Its obligation to eliminate the surplus under Regulation No 60/2004 was therefore reduced, in practice, by the payment of a charge into the Union budget. Yet further to the judgments of 29 March 2012, Czech Republic v Commission (T‑248/07, not published, EU:T:2012:170), and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171), first of all it is clear that the irregularities affecting the decision on agricultural products, found in those judgments to be present and warranting its annulment and which, in the Republic of Estonia’s submission, also affected the sugar decision, were already present at the time of adoption of that decision and that there was nothing preventing the Republic of Estonia from relying on them in an action for annulment of that decision.

, not published, EU:T:2012:170), and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171), that is incompatible with Point 4(2) of Annex IV to the Act of Accession.

80.The Commission disputes the Republic of Estonia’s arguments.

81.It should be noted that the Republic of Estonia’s arguments are based on two cumulative assertions, being (i) that it is apparent from the judgment of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450), that it was impossible for it to obtain from the Estonian operators the amounts referred to in Article 6(3) of Regulation No 60/2004 and (ii) that it is apparent from the judgments of 29 March 2012, Czech Republic v Commission (T‑248/07, not published, EU:T:2012:170), and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171) that, given that impossibility, the Commission could not impose a charge on it pursuant to Article 7(2) of that regulation.

82.Each of those assertions must therefore be examined; should one of them be rejected, that will be sufficient to establish that the Republic of Estonia’s arguments are not well founded and, therefore, that it has not succeeded in demonstrating that the judgments of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450); of 29 March 2012, Czech Republic v Commission (T‑248/07, not published, EU:T:2012:170); and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171) had to be considered substantial factors for the purposes of the case-law cited in paragraphs 59 and 60 above.

83.In support of its first assertion, to the effect that it was impossible to obtain from the Estonian operators the amounts referred to in Article 6(3) of Regulation No 60/2004, the Republic of Estonia states that the operators’ obligation under the ÜLTS to pay a charge into its national budget in the event of non-elimination of their surplus stock of sugar was not enforceable as against those operators, even though the date on which they were supposed to pay the charge was subsequent to the date of publication in Estonian of Regulation No 60/2004. The date on which the operators’ obligations came into being was 1 May 2004, which is also the date on which their surplus stock was determined and the new Member States were supposed to have in place an identification system. This is confirmed, in essence, by the judgment of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450), in which the assessment notices based on the ÜLTS were held to be unenforceable as against the operators, even though they had been issued after the publication in Estonian of Regulation No 1972/2003. Moreover, according to the case-law, there is no justification for basing oneself on a date other than 1 May 2004 for the application of transitional measures in preparation for the accession.

84.Suffice it to observe in that regard that, contrary to the Republic of Estonia’s assertions, the chargeable event for the tax the Estonian operators were to pay into the Estonian national budget pursuant to Article 6(3) of Regulation No 60/2004, as amended, was not the possession of surplus stock on the date of the accession. It is clear from that provision that the chargeable event for the tax was the failure to eliminate the surplus stock by 30 November 2005. Yet Regulations Nos 1789/2003 and 60/2004 had been published in the Official Journal in Estonian more than 15 months previously (see paragraph 13 above). Accordingly, the absence of publication of those regulations in Estonian in the Official Journal on the date of the accession did not prevent the Republic of Estonia from enforcing the ÜLTS as against Estonian operators in order to obtain payment of the tax in question.

85.This conclusion is not called into question by the Republic of Estonia’s argument to the effect that, in the judgment of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450), the assessment notices issued on the basis of the ÜLTS were held to be unenforceable as against the operators, even though they were issued after the publication in the Official Journal in Estonian of Regulations Nos 1789/2003 and 1972/2003.

86.In the judgment of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450), the Court of Justice held that the obligation to pay a tax on the surplus stock of agricultural products, provided for in Article 4 of Regulation No 1972/2003, was determined on the basis of the stocks held on the date of the accession and that, accordingly, the date of issuance of the assessment notice had no bearing on the chargeable event for that tax. That observation is not applicable in the present case, as the obligation to pay a tax on the surplus stock provided for by Article 4 of Regulation No 1972/2003 and the one provided for by Article 6(3) of Regulation No 60/2004 arose at different points in time. Thus, whilst the tax referred to in Regulation No 1972/2003 was due by virtue of the mere possession of surplus stock on the date of the accession, the one referred to in Regulation No 60/2004 could not be charged solely on grounds of possession thereof on that date. The operator had the possibility of avoiding having to pay that tax by eliminating the surplus stock in its possession. The obligation to pay that tax was, in reality, a consequence of the infringement of the operator’s obligation to eliminate those stocks.

87.The Republic of Estonia’s assertion to the effect that it was impossible to obtain from the Estonian operators the amounts referred to in Article 6(3) of Regulation No 60/2004 therefore has no basis in the judgment of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450), and must be rejected.

88.Since, given the cumulative nature of the two arguments put forward by the Republic of Estonia in support of its assertion that the unlawfulness of the sugar decision is apparent from a reading of the judgments of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450); of 29 March 2012, Czech Republic v Commission (T‑248/07, not published, EU:T:2012:170); and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171), the rejection of one of them is sufficient in order to reject that assertion (see paragraph 82 above), the conclusion is that those judgments may not be held to be substantial factors for the purposes of the case-law cited in paragraphs 59 and 60 above, without its being necessary to examine the second assertion.

89.It follows from all the foregoing considerations that there is nothing in the basis for the request for modification of the sugar decision addressed to the Commission by the Republic of Estonia that can be considered to be new or substantive within the meaning of the case-law cited in paragraphs 59 and 60 above. In those circumstances, the contested measure must be regarded as being a decision confirming the sugar decision and the action must be dismissed as inadmissible.

Costs

90.Article 134(1) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party’s pleading.

91.Since the Republic of Estonia has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

92.Under Article 138(1) of the Rules of Procedure, Member States which intervene in the proceedings are to bear their own costs. The Republic of Latvia shall therefore bear its own costs.

On those grounds,

hereby:

1.Dismisses the action as inadmissible;

2.Orders the Republic of Estonia to bear its own costs and to pay those incurred by the European Commission;

3.Orders the Republic of Latvia to bear its own costs.

Kanninen

Pelikánová

Buttigieg

Gervasoni

Calvo-Sotelo Ibáñez-Martín

Delivered in open court in Luxembourg on 24 March 2017.

*1 Language of the case: Estonian.