C-301/97

OPINION OF MR LÉGER — CASES C-301/97 AND C-452/98

OPINION OF ADVOCATE GENERAL LÉGER delivered on 13 March 2001 1

1. By these actions, brought under Arti- to increase trade and promote jointly cle 173 of the EC Treaty (now, after economic and social development. amendment, Article 230 EC), the Kingdom of the Netherlands and Nederlandse Antil- len 2 ask the Court to annul Council Regulation (EC) No 1036/97 of 2 June 1997 introducing safeguard measures in respect of imports of rice originating in the overseas countries and territories 3and to order the Council of the European Union to 3. Article 227(3) of the EC Treaty (now, pay the costs. after amendment, Article 299(3) EC) pro- vides that the association arrangements are to apply to the OCTs listed in Annex IV to the Treaty, which includes the Netherlands Antilles.

I — Legal and procedural background to Cases C-301/97 and C-452/98

4. According to the second paragraph of Article 131 of the EC Treaty (now, after amendment, the second paragraph of Arti- cle 182 EC), the purpose of association is to promote the economic and social devel- EC Treaty opment of the OCTs and to establish close economic relations between them and the Community as a whole.

2. By Article 3(r) of the EC Treaty (now, after amendment, Article 3(l)(s) EC), Community activities are to include the association of the overseas countries and territories (hereinafter 'the OCTs') in order 5. Article 132(1) of the EC Treaty (now Article 183(1) EC) states that the Member 1 — Original language: French. States are to apply to their trade with the 2 — Hereinafter 'ARM'. 3 — OJ 1997 L 151, p. 1 (hereinafter referred to as the OCTs the same treatment as they accord 'regulation at issue' or 'the contested regulation'). each other pursuant to the Treaty.

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13. Article 3(3) of Annex II to the OCT 16. Under Article 109(2) of the OCT deci- decision lists working or processing con- sion, priority is to be given to such sidered as insufficient to confer the status measures as would least disturb the func- of originating products on OCT products. tioning of the association and the Commu- nity; those measures are not to exceed the limits of what is strictly necessary to remedy the difficulties that have arisen.

14. Article 6(2) of that annex provides: 17. Under Article 1(5) and (7) of Annex IV to the OCT decision, any Member State may refer the Commission's decision to implement safeguard measures to the Council within 10 working days of receiv- ing notification of the decision. In such a case the Council, acting by a qualified 'When products wholly obtained in the majority, may adopt a different decision Community or in the ACP States undergo within 20 working days. working or processing in the OCTs, they shall be considered as having been wholly obtained in the OCTs' (the 'cumulation of ACP/OCT origin' rule).

The 1994 General Agreement on Tariffs and Trade 5

21. Under Regulation No 764/97, rice ori- 19. The Agreement on Safeguards6 is one ginating in the OCTs falling within CN of the multilateral agreements on trade in code 1006 could be imported into the goods concluded by the World Trade Community free of customs duties, during Organisation. 7 Article 7(5) provides that the period 1 May to 30 September 1997, no safeguard measure is to be applied again up to the following limits: to the import of a product which has been subject to such a measure, taken after the date of entry into force of the WTO Agreement, for a period of time equal to that during which such measure had been previously applied, provided that the period of non-application is at least two years. (a) 10 000 tonnes for rice originating in Montserrat and the Turks and Caicos Islands, and

Regulation (EC) No 764/978

(b) 59 610 tonnes for rice originating in 20. On 23 April 1997, taking the view that other OCTs. This category predomi- the serious disruption to the Community nantly concerns the Netherlands Antil- les. 6 — Uruguay Round Multilateral Negotiations (1986-1994) — Annex 1 — Annex 1A — Agreement on Safeguards (WTO-GATF 1994) (OJ 1994 L 336, p. 184). 9 — Council Regulation of 17 February 1997 introducing safe- 7 — Hereinafter the 'WTO'. guard measures in respect of imports of rice originating m the overseas countries and territories (OJ 1997 L 51. p. 1 ). 8 — Commission Regulation of 23 April 1997 introducing sale- This regulation has heen the suh|ect of two annulment guard measures in respect of imports of rice originating in actions, which I have examined, ami in which I have today the overseas countries and territories (OJ 199" 1. 112. p. 3). delivered a single Opinion (Cases C.'-l 10/9" and C-4Š1/9S).

(a) 13 430 tonnes for rice originating in Montserrat and in the Turks and Cai- cos Islands, and: The Community market in rice

28. There are three main varieties of rice: (b) 56 180 tonnes for rice originating in round-grained rice, semi-long grained rice the other OCTs. (otherwise known as Japonica)and long¬

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grained rice (otherwise known as Indica). — brown rice: 10 this is the rice after the Only Japonica and Indica rice are con- husk has been removed. It is fit for sumed in the Community. consumption but can also be processed further;

29. The rice-producing countries in the Community are essentially France, Spain and Italy. The variety of rice most com- monly produced is Japonica, of which there is surplus production. On the other hand, — semi-milled rice: 11this is the rice after the Community does not produce enough part of the pericarp has been removed. Indica rice to meet its own needs. For this It is a semi-finished product generally reason the Community has encouraged the sold for processing rather than for culture of Indica rice by granting temporary consumption; aid per hectare to Community producers.

33. The pleas in law and submissions of the applicant in Case C-452/98 are, to all intents and purposes, the same as those of 36. Principally, it considers that its OCT the Netherlands Government in Case status allows it to seek the annulment of the C-301/97. Since the Netherlands Antilles regulation at issue on the basis of the have raised the question of the admissibility second paragraph of Article 173 of the of the Kingdom of Spain's intervention and Treaty, without having to show that it is of their own application, I will deal with directly and individually concerned by that those points first, which, in any event, must regulation. be examined by the Court of its own motion.

37. In its view, as an OCT listed in Annex IV to the Treaty, the Netherlands Antilles have had rights and obligations directly conferred on them by the Treaty. It is by reason of these prerogatives that the Arguments of the applicant applicant claims the right to bring proceed- ings under the second paragraph of Arti- cle 173 of the Treaty.

34. As a preliminary point, the applicant submits that the intervention of the King- dom of Spain should be held inadmissible 38. The applicant submits that, according by reason of the fact that the Act of to the preamble to the Statute of the Accession of the Kingdom of Spain has Kingdom of the Netherlands, the Nether- been ratified by the Kingdom of the Neth- lands Antilles and Aruba have adopted a erlands only in respect of the European part legal order 'in which they independently of the Netherlands. It follows that there is defend their own interests'. 14 The appli- no Community law tie between the Nether- cant points out that the interests of the lands Antilles and the Kingdom of Spain. Kingdom of the Netherlands are not always coterminous with its own. 15 Accordingly,

40. Furthermore, in its view, the fact that the declaration recognises that the Nether- lands Antilles have specific autonomy within the Kingdom of the Netherlands 44. The applicant claims that it is directly argues in favour of the existence of an and individually concerned by the regula- autonomous right on its part to bring tion in question. proceedings against measures adopted under that decision.

45. The existence of a direct detriment caused by the regulation at issue is said to 41. Lastly, it considers that the judgment of be shown by the fact that it leaves no the Court of Justice in Case C-70/88 margin of discretion to the Member States Parliament v Council 16 could be applied in respect of its implementation, and that it by analogy. Like the Parliament in that imposes serious restrictions on a significant case, it intends by this action to protect the sector of the economy of the Netherlands prerogatives accorded to it by the Antilles — namely the rice-milling sector, Treaty — namely its right of free access which accounts for 0.9% of its gross to the Community market, and the protec- national product in 1996.

16 —|1990| ECU I-2041. 17 — Reply, paragraph 24.

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47. Furthermore, in its view, it follows Assessment from the provisions of Article 109 of the OCT decision, upon which the regulation at issue is founded, that the Commission must take into account the effects that the Admissibility of the Kingdom of Spain's proposed measure may have on the OCTs' intervention economies. Since the Netherlands Antilles export by far the greatest quantity of rice originating in the OCTs to the Community and, when the regulation was adopted, the Council was aware that practically all of the rice originating in the OCTs came from the Netherlands Antilles, it should be 49. Pursuant to the first paragraph of concluded that the Netherlands Antilles Article 37 of the EC Statute of the Court are individually concerned by the regula- of Justice, the Member States are entitled to tion at issue. intervene in any case before the Court. This right arises from their status as parties to the Treaty. In this regard they have a legal interest in bringing proceedings to defend the terms of the agreement which they have entered into. As 'privileged' applicants, they are able to take advantage of an irrebuttable presumption of a legal interest in bringing proceedings and standing. 48. At the hearing, the applicant submitted that, in its judgment of 10 February 2000 in Joined Cases T-32/98 and T-41/98 19 —[2000] ECR II-201. 20 — Those cases concerned applications for the annulment of two Commission regulations introducing specific safe- guard measures intended to restrict imports of rice 18 — Which defines the OCT association arrangements. originating in the OCTs falling within CN code 1006.

21 — T h i s paragraph provides thai '[t]he Court of Justice shall review the legality of acts adopted jointly hy the European Parliament and the Council, of acts of tne Council, of the Commission and of the ECB, other than recommendations and opinions, and of acts of the European Parliament intended to produce legal effects vis-ti-ns third parties.' 22 — Which provides that '[i]r shall for this purpose have 52. It should first be recalled that Arti- jurisdiction in actions hrought hy a Member State, the Council or the Commission on grounds of lack of cle 173 exhaustively lists: competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers.' 23 — Which provides that '[t|he Court of Jusrice shall have lunsdiction under the same conditions in actions hrought by the European Parliament and hy the ECB for the purpose of protecting their prerogatives'. 24 — Which provides that '[a]ny natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision — the nature of acts the legality of which which, although in the form of a regulation or a decision addressed to another person, is of direct and individual may be reviewed, as well as the institu- concern to the former'.

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57. According to the Court, '[i]f the con- trary were true, it would undermine the institutional balance provided for by the Treaties, which determine the conditions under which the Member States, that is to 54. It must be concluded that, in order to say the States party to the Treaties estab- bring themselves within the second para- lishing the Communities and the Accession graph of Article 173 of the Treaty, the Treaties, participate in the functioning of Netherlands Antilles need to prove that the Community institutions. It is not pos- they are either a Member State or one of sible for the European Communities to the Community institutions enjoying gen- comprise a greater number of Member States than the number of States between which they were established'. 28 25 — See, in this regard, Cañedo, M., 'L'intérêt à agir dans le recours en annulation du droit communautaire', Revue trimestrielle de droit européen, July-September 2000, p. 451. 26 — See, in particular, Case C-146/91 KYDEP v Council and 27 — See, in particular, the orders of the Court in Case C-95/97 Commission [1994] ECR 1-4199, paragraph 30; Case Région wallonne v Commission [1997] ECR 1-1787, C-431/92 Commission v Germany [1995] ECR 1-2189, paragraph 6, and Case C-180/97 Regione Toscana v paragraphs 21 and 22; and Case C-207/97 Commission v Commission [1997] ECR I-5245, paragraph 6. Belgium [1999] ECR 1-275, paragraph 24. 28 — Ibidem.

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58. In its recent judgment in Case C-17/98 by the institutional rules of the Member Emesa Sugar, 29 the Court expressly ruled States or upon the obligations falling out the possibility of OCTs being regarded respectively on central authorities of the as Member States within the meaning of State and other territorial authorities. 33 the Treaty. The Court held that 'although Any disputes which could arise regarding the OCTs are associated countries and assessment of the extent of their respective territories having particular links with the powers and of mutual rights and obliga- Community, they are not part of it and are, tions are, therefore, a matter for the as regards the Community, in the same Member States alone. situation as non-member countries'. 30

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action for the annulment of measures 68. It also appears from the overall scheme adopted under that decision. of the OCT decision that the Member States have a privileged relationship with the Community institutions in the adoption and revision of measures adopted under the said decision. 64. It should be pointed out in this regard that the provisions of a declaration can be of legal significance only to the extent that the content of those provisions reflects the text of the secondary legislation which gave rise to the declaration. 34 69. Thus under Article 1(5) and (7) of Annex IV to the OCT decision, the Mem- ber States alone are entitled to refer the Commission's decision introducing safe- guard measures to the Council within 10 65. The declaration in question was working days of receiving notification of adopted by the Netherlands Government the decision. in response to the OCT decision.

72. The declaration provides as follows: 75. Furthermore, the Treaty does not con- fer on the OCTs any specific right in respect of judicial remedies, such rights being conferred only in the economic, social and cultural fields. 55 'The [G]overnment of the Kingdom of the Netherlands draws attention to the consti- tutional structure of the Kingdom of the Netherlands resulting from the statute of 29 December 1954, and in particular, to the autonomy of the countries of the King- 76. Furthermore, it is clear from the actual dom so far as concerns the provisions of the wording of this declaration that the Neth- Decision, and the fact that the Decision erlands Government did not recognise the was, in consequence, adopted in coopera- Netherlands Antilles or Aruba as having tion with the Governments of the Nether- any specific rights — still less in respect of lands Antilles and Aruba pursuant to the judicial remedies — but intended to constitutional procedures in force in the remind the Governments of those OCTs Kingdom. that they were required to fulfil their obligations arising out of the decision.

It declares that, for that reason and without prejudice to the rights and obligations devolving upon it under the Treaty and 77. Therefore, the provisions of the under the Decision, the Governments of the declaration cannot be interpreted as grant- Netherlands Antilles and of Aruba will ing to the Netherlands Antilles specific fulfil the obligations arising out of the rights in respect of judicial remedies. Decision.'

78. It follows from the foregoing that the 73. It follows expressly from the wording normal provisions of the Treaty governing of those provisions that the purpose of the judicial remedies, that is, the provisions of declaration is not to derogate from the Article 173 of the Treaty, apply in this case. rules of the Treaty or of the OCT decision.

79. The applicant asks that Case C-70/88 83. It follows from the foregoing that the Parliament v Council, cited above, be Netherlands Antilles' application on the applied by analogy. It submits that its basis of the third paragraph of Article 173 application should be held admissible of the Treaty is inadmissible. under the third paragraph of Article 173 of the Treaty inasmuch as its purpose is to protect the prerogatives which the Treaty recognises the applicant as enjoying. Admissibility of the Netherlands Antilles' application under the fourth paragraph of Article 173 of the Treaty 80. I cannot accept that argument. In Parliament v Council, the intention of the Court was to deal with a procedural question as to the conditions governing the admissibility of proceedings brought by 84. Under the fourth paragraph of Arti- Community institutions other than the cle 173 of the Treaty, any natural or legal Council and the Commission. 36That judg- person may institute proceedings against a ment is aimed at ensuring that institutional decision addressed to that person or against balance is maintained, not at establishing a decision which, although in the form of a the standing of natural and legal persons regulation or a decision addressed to who consider themselves to be harmed by another person, is of direct and individual an act of general application adopted by a concern to the former. Community institution. 37

81. The third paragraph of Article 173 of 85. Since the contested regulation is not a the Treaty, added to the Treaty following decision addressed to the Netherlands that judgment, merely reproduces what it Antilles, within the meaning of the fourth said. paragraph of Article 173 of the Treaty, it must be ascertained whether it is an act of general application or whether it is in fact a decision in the form of a regulation.

92. In its view, the contested regulation concerns all the OCTs. It deduces from this 89. It cannot be ruled out, however, that an that the OCTs are a limited group of legal act, notwithstanding its general applica- persons. tion, can be of direct and individual concern to certain natural or legal per- sons. 39 The question whether the Nether- lands Antilles satisfy these two conditions must therefore be examined.

93. It further submits that the Netherlands Antilles are a legal person 'concerned' in respect of those measures, within the mean- ing of the Court's case-law. 90. Under settled case-law, 40 the Court has held that an act of general application adopted by a Community institution is of individual concern to natural or legal persons, by reason of certain attributes which are peculiar to them, or by reason of circumstances in which they are differenti- 94. First, the Netherlands Antilles are said ated from all other persons. Those natural to have attributes that are peculiar to them by comparison with the other OCTs. The applicant claims in this regard that the 39 — See, in particular, Case C-309/89 Codorniu v Council [1994) ECR I-1853, paragraph 19. 40 — See Case 25/62 Plaumann v Commission [1963] ECR 95; 41 — See in particular, Piraiki-Patraiki and Others v Commis- Case 11/82 Piraiki-Patraiki and Others v Commission sion, cited above, paragraphs 17 and 2 8 , and Case [1985] ECR 207, paragraph 1 1 , and Codorniu v Council, C-390/95 P Antillean Rice Mills and Others v Commission cited above, paragraph 20. [19991 ECR I-769, paragraph 2 8 .

regulation at issue imposes considerable 97. It is true that the fact that, when taking restrictions on a significant sector of its a decision, the Community institutions are economy. required, by specific provisions, to take account of the negative effects that their decision might have for the economy of a State or for undertakings concerned may be such as to distinguish those different per- sons individually. 42 However the Court has 95. It appears from the observations of the consistently held that that can only, in fact, applicant that the rice-milling sector repre- be the case if the State or undertakings sented only 0.9% of the gross domestic concerned also adduce evidence that their product of the Netherlands Antilles for circumstances 43distinguish them from all 1996. It seems to be doubtful, to say the other persons. In that respect the Court least, having regard to the figure put has held that Article 109(1) of the OCT forward, that this can be considered to be decision44 contained an obligation of that a particularly significant sector of the nature. Netherlands Antilles' economy. I would have concluded otherwise had the eco- nomic sector affected by the measure at issue represented a far more significant proportion of the gross domestic product of the OCT in question. I must therefore 98. It follows therefore from the Court's conclude that the applicant has not shown case-law that that obligation upon a Com- that the contested regulation affects it by munity institution is only one factor reason of attributes which distinguish it enabling legal persons to show a specific, from the other OCTs also referred to by individual and personal interest in bringing said regulation. proceedings under the fourth paragraph of Article 173 of the Treaty against an act of general application. In so doing, if those persons adduced such evidence, they should be regarded as belonging to a limited circle of 'persons concerned' within the meaning 96. Secondly, the applicant states that the of Piraiki-Patraiki and Others v Commis- Netherlands Antilles find themselves in sion, cited above. circumstances which differentiate them from all other persons and which distin- guish them individually in the same way as an addressee, within the meaning of the Court's case-law in Piraiki-P atraiki and Others v Commission. It submits, in this 99. In this case the applicant relies on the respect, that it exports by far the largest quantity of rice originating in the OCTs to j u d g m e n t in Nederlandse Antillen v Corn- the Community and that, when the regula- tion was adopted, the Council was aware 42 — Piraiki-Patraiki and Others v Commission, cited above, of that specific situation but failed to take it paragraph 28. into account when considering the impact 43 — PatraikiSee, in particular, Plaumann v Commission and Piraiki- and Others v Commission, paragraph 28, cited that the safeguard measures would have on above. 44 — Antillean Rice Mills v Commission, cited above, para- the Netherlands Antilles' economy. graphs 25 to 30.

100. I cannot, however, accept the appli- cant's submission on this point, owing to an erroneous application by the Court of First Instance of the Court's case-law in Piraiki- Patraiki and Others v Commission, cited above. 102. The Court of First Instance therefore found that the obligation on the Commu- nity institutions to take account of the impact of the safeguard measures envisaged on the economy of the OCTs or on under- takings concerned was just one factor enabling the latter to prove their specific, individual and personal interest in bringing 101. In its judgment of 14 September 1995 an action for the annulment of an act of in Antillean Rice Mills v Commission, general application adopted by a Commu- 'ARM-1', 45 the Court of First Instance nity institution. correctly applied the Court's decision in Piraiki-Patraiki and Others v Commission. It observed, first, that the OCT decision required the Community institutions to take account of the impact of the decisions envisaged on the legal position of identified or identifiable persons. 46 Secondly, it 103. By contrast, in Joined Cases T-32/98 emphasised that such persons had to pro- and T-41/98 Nederlandse Antillen v Com- duce evidence that their circumstances mission, cited above, the Court of First differentiated them from all other per- Instance did not carry out such an analysis sons. 47 It pointed out, thirdly, that the or examination. In that case, the Court of existence of contracts entered into before First Instance treated the obligation upon the adoption of the safeguard measures in the Community institutions to take account question, the performance of which had of the possible impact of the safeguard been wholly or partly prevented by the measures envisaged on the economy of an adoption of those measures, constituted a OCT as a sufficient condition for persons 'factor capable of defining the limited class benefiting from the corresponding right to of undertakings concerned but that other be considered 'persons concerned' within

106. It follows from the foregoing53 that, in order to satisfy the conditions laid down by the Court's case-law, the Netherlands Antilles must show, in addition to the 'It is true, as the Commission points out, obligation incumbent on the Council, that that the fact that a local or regional their circumstances differentiate and distin- authority of a Member State demonstrates guish them from all other OCTs. that the application or implementation of a Community measure is capable of affecting socio-economic conditions within its terri- tory is not sufficient for it to be recognised that that measure is of individual concern to it... . However, in this case, the contested 107. In that regard the applicant submits measures are of individual concern to the that it exports by far the greatest quantity applicant in so far as the Commission, of rice originating in the OCTs to the when envisaging their adoption, was under Community and that, when the regulation a duty specifically to take account of the was adopted, the Council was aware of applicant's situation by virtue of Arti- that particular circumstance, but failed to cle 109(2) of the OCT Decision'.52 take it into account when assessing the impact of the safeguard measures that were going to be taken on the economy of the Netherlands Antilles.

105. It follows that the Court of First Instance concluded that the Netherlands Antilles' application was admissible solely on the basis of the obligation on the Community institutions to take account of 108. I do not consider that the circum- the impact of measures envisaged on the stances described by the applicant are such economy of the OCTs in question, as to distinguish them from the other although, in Piraiki-Patraiki and Others v OCTs. The applicant confines itself to listing the likely significant socio-economic

111. Furthermore, given that goods origi- nating in third countries only obtain a 114. It follows from the foregoing that the small amount of added value in the terri- applicant is not a 'person concerned' within tories of the OCTs, the economic sector the meaning of the Court's case-law. I affected by the contested regulation can therefore propose that the Court hold its only make a small contribution to the application to be inadmissible.

54 — See in particular, the orders in Case T-238/97 Comunidad Autónoma de Cantabria v Council [1998] ECR II-2271, paragraphs 21 and 22, and Case T-609/97 Regione Puglia v Commission and Spain [1998] ECR II-4051, paragraphs 21 and 22. 55 — Nederlandse Antillen v Commission, cited above, para- graph 57. 115. It is, therefore, unnecessary to exam- 56 — See, by analogy, Plaumann v Commission, cited above. ine the substance of this application.

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IV — Pleas in law and submissions of the — breach of Article 190 of the EC Treaty Netherlands Government in Case (now Article 253 EC). C-301/97

116. The Netherlands Government puts forward seven pleas in law in support of its application, alleging: V — Discussion

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118. The Council, the Commission and the that may be imported free of customs duty, Spanish and Italian Governments deny that but is not intended to prohibit imports of allegation. goods originating in the OCTs. The impo- sition of a tariff quota necessarily means that any quantity of the product over and above the quota is subject to customs duty at the normal rate. Assessment

119. The principle of legal certainty is one of the fundamental principles of Commu- nity law, 57 which requires, in particular, that rules imposing charges on their addres- sees are clear and precise so that the latter may be able to ascertain unequivocally what their rights and obligations are. 58

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123. In Case C-17/98 Emesa Sugar, 60 cited two years of the expiry of Regulation above, the Court confirmed this interpreta- No 304/97. tion and held that the introduction of a safeguard measure such as a tariff quota meant that 'the products concerned can be imported in excess of the quota only against payment of customs duties'. 126. In its view, Article 7(5) of the Agree- ment on Safeguards, which lays down a clear, precise and unconditional obligation, has direct effect.

124. Consequently, contrary to the Nether- lands Government's submission, the Coun- cil has not breached the principle of legal certainty by failing expressly to indicate the 127. It is said to apply to relations between legal situation of the undertakings con- the Community and the OCTs, since the cerned, and of the OCTs when the tariff OCTs are regarded as third countries for quota set by Article 1 of the contested the purposes of the Agreement establishing regulation is filled. The first plea in law is the WTO. 61 accordingly unfounded.

Assessment

Second plea in law, alleging breach of Article 7(5) of the Agreement on Safe- guards 128. The question whether agreements concluded within the framework of GATT 1994 constitute rules in the light of which the Court is to renew the legality of Community acts was dealt with in the Arguments judgment in Portugal v Council. 62

135. In this case it is not in dispute that the purpose of the regulation at issue is to 132. As for such legal means within the apply Article 109 of the OCT decision, and Community legal order, the sole considera- it is not intended to ensure the implemen- tion that the Court found, in fact, to be tation within the Community legal order of relevant was that of reciprocity in the a particular obligation arising within the implementation of the agreement. The context of the WTO, any more than it Court noted that the courts of the Com- expressly refers to the provisions of the munity's most important trading partners WTO agreements. do not review the legality of rules of

64 — Portugal v Council, cited above, paragraph 47. 63 — O J 1996 L 153, p. 47. 65 — Ibidem, paragraph 49.

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136. Therefore, following the Court's judg- 138. The Netherlands Government states ment in Case C-149/96 Portugal v Council, that the purpose of the OCT decision, cited above, I would propose that the Court under Article 131 of the Treaty, is to hold that the Kingdom of the Netherlands' promote the economic and social develop- plea that the contested regulation was ment of the OCTs and to establish close adopted in breach of certain rules and economic relations between the latter and fundamental principles of the WTO, and in the Community. Under Article 133 of the particular Article 7(5) of the Agreement on Treaty, the complete abolition of customs Safeguards, is unfounded. duties on goods originating from the OCTs upon their entry into the Member States constitutes one of the means of bringing about the abovementioned objectives.

Arguments

Assessment

144. Under the second limb of the third plea, the Netherlands Government con- 142. When examining the Netherlands tends that the Council has failed to show Government's application in Case that the quantity or price-level of rice C-110/97, I concluded that the Court originating in the OCTs caused or threa- should dismiss this plea in law as unfoun- tened to cause a significant disturbance on ded. 66 Since the arguments put forward by the Community market. the Netherlands Government in support of the first limb of the third plea are strictly the same as those advanced in Case C-110/97, I would invite the Court to refer to my reasoning in that case. 67

151. Accordingly, I propose that the Court 148. Lastly, concerning the allegedly lower hold that there is insufficient evidence to price of rice originating in the OCTs by find that the Council committed a manifest comparison with the price of Community error of assessment in the application of rice, on the basis of evidence which it has Article 109(1) of the OCT decision. The already submitted in Case C-110/97, the second limb of the third plea in law should Netherlands Government states that the therefore be held to be unfounded. price of OCT rice is clearly higher than that of Community rice.

Assessment Fourth plea in law, alleging breach of Article 109(2) of the OCT decision

149. It should be pointed out that, in this case, the Netherlands Government has This plea is divided into five limbs and I faithfully reproduced the arguments it put will consider each in turn. forward in Case C-110/97. Furthermore, to 69 — See, on this point, the data supplied by the Kingdom of the Netherlands at paragraph 79 of its application. 68 — OJ 1996 L 190, p. 1. This regulation was adopted 70 — See points 83 to 103 of my Opinion delivered today in that following agreements negotiated under the GATT. case.

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First limb of the fourth plea in law Assessment

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158. The Netherlands Government states 161. The second limb of the fourth plea in that it officially knew, even before the law is therefore unfounded. meeting of the relevant committee on 11 April 1997, under the provisions of Annex IV to the OCT decision, 74 that the Commission had already decided to intro- duce new safeguard measures when those under Regulation No 304/97 expired. Third limb of the fourth plea in law

159. The Netherlands Government states Arguments that proof of this may be found in the report of the working party of the Council dated 27 May 1997. 75

162. By the third limb of this plea, the Netherlands Government submits that the Council infringed the principle of propor- tionality in opting for a tariff quota instead of a minimum price as a safeguard mea- Assessment sure.

Arguments 165. Furthermore, as I have already sta- ted, 81 the introduction of the measures in question does not prohibit the export of Antillean rice to the Community once the quota has been filled. Accordingly, the complaint alleging that a measure prohibit- 168. By the fourth limb of this plea in law, ing the export of rice to the Community the Netherlands Government considers that was introduced to the detriment of under- the contested regulation disregards Arti- takings registered under the law of the cle 109(2) of the OCT decision in that the Netherlands Antilles is without substance. amount of the security required from importers renders inapplicable the legisla- tion laying down special detailed rules for the application of the system of import licences for rice. 82

166. Consequently, I consider that the Netherlands Government has not adduced sufficient proof that the introduction of a 169. In support of this argument, the minimum price would have entailed less Netherlands Government submits that the disturbance for the OCTs' economies, in amount of the security required is dispro- particular that of the Netherlands Antilles portionate to the objective of the OCT and Aruba, and would, at the same time, decision. It considers that it is completely have been as effective as the measure at abnormal that the amount of the security

79 — Points 129 to 134 of my Opinion delivered today in that 82 — Commission Regulation ( E C ) No 1162/95 of 23 May case. 1995 laying down special detailed rules for the application 80 — Ibidem. of the system of import and export licences for cereals and 81 — Points 119 to 124 of this Opinion. rice (OJ 1995 L 117, p. 2).

Fifth limb of the fourth plea in law 174. The Commission decided to extend the effect of the first safeguard measures adopted under Regulation No 304/97 after establishing that there were serious distur- Arguments bances on the Community market in rice. No evidence has been adduced to show that the substantive preconditions for the adop- tion of the regulation at issue were not met. 172. Lastly, by the fifth and final limb of Accordingly, the Commission cannot be the fourth plea, the Netherlands Govern- ment submits that the Council breached the 84 — See Piraiki-Patraiki and Others v Commission, cited above, paragraph 40, and Antillean Rice Mills v Commis- 83 — Points 139 to 143 of my Opinion delivered today in that sion, cited above, paragraph 48. case. 85 — See Emesa Sugar, cited above, paragraph 53.

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criticised for having shown diligence in 178. It follows from the foregoing that the adopting measures necessary for the proper fourth plea in law, alleging breach of functioning of the common agricultural Article 109(2) of the OCT decision, should policy. be held to be unfounded.

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of the OCT decision, therefore, when provided for in Article 1(2) of Annex IV to recourse to the revision procedure in that the OCT decision. It considers furthermore decision was required. that the Council and the Commission failed to give a hearing to the Netherlands Antilles and Aruba on the proposed mea- sure. Lastly, it claims that Article 1(7) of Annex IV to the OCT decision has been breached. I will consider each of those three Assessment limbs in turn.

181. The arguments put forward in sup- First limb of the sixth plea in law port of this fifth plea in law are identical to those advanced by the Netherlands Gov- ernment in Case C-110/97. Arguments

182. For the reasons set out in my Opinion in Case C-110/97, 87 I conclude that the 184. By the first limb of the sixth plea in Netherlands Government has failed to law, the Netherlands Government consid- show that the Council, in adopting the ers that Annex IV to the OCT decision has measure in question, has misused its been breached, in that the Committee was powers. I therefore propose that the Court not consulted in accordance with the pro- hold the fifth plea in law to be unfounded. cedure laid down in Article 1(2) of that Annex. That article provides that '[w]here the Commission, at the request of a Mem- ber State or on its own initiative, decides that the safeguard measures provided for in Article 109 of the Decision should be applied: Sixth plea in law, alleging breach of the revision procedure for safeguard measures set out in Annex IV to the OCT decision

186. It submits that in this case the meeting of the Committee on 11 April 1997 took place in breach of Article 3 of the rules of procedure in that, when it was given notification to attend by letter dated Assessment 4 April 1997, no documentation was sent to the Netherlands Government. It consid- ers that the purpose of Article 3 of the rules of procedure is to give the Member States prior notification of the request for safe- guard measures, and of the provisional view of the Commission as to whether the 188. It appears from the general scheme of proposed measures are justified and how the texts governing the Committee that the they would operate. It asserts that only if purpose of the consultation procedure is to the Member States have this information in enable its members to learn of the view of advance can they effectively carry out the the Community institutions as to the necessity of adopting safeguard measures and the facts on which that view is based. It 88 — Consultative Committee on safeguard measures in the context of the association of overseas countries and expressly appears from the preamble to territories (OCT» with the European Communitv. Report Regulation No 764/97 that the Commis- of the meeting of 11 January 1993, Vlll/112/93, of 13 January 1993. sion decided to adopt further measures

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Arguments

191. By the second limb of the sixth plea in law, the Netherlands Government consid- 193. The Commission submits that this ers that the Commission did not follow allegation is unfounded. The Netherlands Antilles were given a hearing, at their request, at a partnership consultation meet- 89 — Third recital. ing.

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Assessment The rights of the defence have not therefore been breached.

194. I do not share the Commission's view 197. As to the substance, I consider that the that the second limb of the sixth plea in law second limb of this plea in law is unfoun- should be held inadmissible. ded.

90 — See, in particular, Case 2/57 Compagnie des Hauts Four- neaux de Chasse v High Authority [1957 anil 1958] ECU 200. By the third limb of this plea in law, 199: 'the Court takes the view that a distinction must he drawn between the introduction of new submissions in the the Netherlands Government claims that course of the proceedings and, on the other hand, the introduction of certain new arguments, in the present case there has been a breach of Article 1(7) of the Court's view is that the applicant did not introduce new submissions hut merely developed those made in its Annex IV to the OCT decision. application by invoking a number or arguments some of which were adduced for the first time i n the reply. In those circumstances, there is nothing to prevent the Court from considering them'. For a more recent judgment, see, in 91 — This meeting took place on 15 April 1997, as stated by the particular, Case C-153/96 P De Rijk v Commission [1997] Netherlands Government at paragraph 46 of its applica- ECR I-2901, paragraph 19. tion.

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201. That article enables the Council to identical to those put forward by the adopt a different decision if a Member Netherlands Government in Case State refers the decision of the Commission C-110/97.92 to the Council.

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Arguments summarise, it appears that in the Court's view, the statement of reasons must show 'clearly and unequivocally the reasoning of the Community authority which adopted the measure so as to inform the persons concerned of the justification for the mea- sure adopted and to enable the Court to 207. In this respect the Netherlands Gov- exercise its powers of review'. 95 ernment submits that the statement of reasons in the regulation at issue consists solely of generalities, set out in abstract terms, to the point that they are almost always the same regardless of the material facts, and that that is insufficient justifica- tion for a specific safeguard measure.

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211. In this case, it should be pointed out 213. The reasons given for the regulation at that the regulation at issue is a generally issue also set out the general objectives it is applicable act which is one of a series of intended to achieve. regulations laid down by the Community institutions in order to implement and reconcile two complex policies, the com- mon agricultural policy in the rice market and economic policy in the context of the association arrangements with the OCTs.

It is, in particular, stated that the disruption in the Community market for Indica rice caused by imports of rice from the OCTs risked undermining the attempts of the Community legislature, by means of aid per hectare on a temporary basis, to encourage Community producers to grow Indica rice, 100 and that it was, therefore, appro- priate to adopt safeguard measures to 212. It further appears that the reasons prevent that situation from deteriorating, given for the regulation set out the overall and the attempts of the common agricul- situation which led to its adoption. tural policy to diversify production from being undermined.

214. It must be concluded that the Council clearly and unequivocally set out its reasons Thus it is stated in the second recital in the for the adoption of the regulation. preamble that the serious disruption in the Community rice sector and the risk of a significant deterioration in that sector of economic activity had not been eliminated in spite of the adoption of earlier safeguard measures. It is further explained that the Community rice sector was in a fragile situation following droughts in the 1994/1995 and 1995/1996 seasons, and 215. It follows that this last plea in law by underproduction of Indica rice. 99 must be dismissed.

— dismiss the application;

— order the Kingdom of the Netherlands to bear its own costs as well as those of the Council of the European Union;

— order that the Kingdom of Spain, the French Republic and the Italian Republic and the Commission of the European Communities bear their own costs.

(2) In Case C-452/98

— declare the application inadmissible;

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