C-142/00
ECLI:EU:C:2002:478
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COMMISSION v NEDERLANDSK ANTILLEN
OPINION OF ADVOCATE GENERAL LÉGER delivered on 12 September 2002 1
1. By this appeal the Commission of the 3. This case can be compared with the European Communities is asking the Court judgment of 22 November 2001 in Neder- to set aside the judgment of the Court of landse Antillen v Council. 6In that case, I First Instance of the European Commu- set out precisely the reasons why I consider nities of 10 February 2000 in Nederlandse that the Court of First Instance, in the Antillen v Commission, 2 by which it contested judgment, made an error of law annulled Regulations (EC) Nos 2352/97 3 in declaring admissible the actions brought and 2494/97 4on imports of rice originat- by the Government of the Netherlands ing in the overseas countries and terri- Antilles against Commission Regulations tories. 5 Nos 2352/97 and 2494/97 on imports of rice originating in the OCTs. 7
2. The Commission maintains that the Court of First Instance made an error of law in declaring the actions of the Govern- ment of the Netherlands Antilles admiss- ible. According to the Commission, that authority is neither individually nor directly concerned by the regulations in question and, furthermore, has no sufficient interest 4. My Opinion was followed by the Court to bring proceedings. In the alternative, it which, keeping to its settled construction of disputes having made an error of law in the the expression 'natural or legal persons adoption of the regulations in question. individually concerned', for the purposes of the fourth paragraph of Article 230 EC, 8 declared the action of the Netherlands 1 — Original language: French. Antilles Government inadmissible. Para- 2 — Joined Cases T-32/98 and T-41/98 |2000] ECR II-201 ('the graphs 64, 67, and 70 to 77 of that contested judgment'). 3 — Commission Regulation of 27 November 1997 introducing judgment are worth citing in full. specific measures in respect of imports of rice originating in the overseas countries and territories (OJ 1997 L 326. p. 21). 4 — Commission Regulation of 12 December 1997 on the issuing of import licences for rice falling within CN code 6 — Case C-452/98 [2001] ECK I-8973. 1006 and originating in the overseas countries and terri- 7 — See my Opinion in Nederlandse Antillen v Council, cited tories under the specific measures introduced by Regulation above, paragraphs 99 to 113. (EC) N o 2352/97 (OJ 1997 L 343, p. 17). 8 — See the indgment in Nederlandse Anldlen v Council, cited 5 — Hereinafter 'the OCTs'. above, paragraphs 60 to 77.
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5. According to the Court: 70 However, it appears from Piraiki-Pat- raiki and Others v Commission [Case 11/82 [1985] ECR 207] that the find- ing of the existence of that obligation is not sufficient to establish that those OCTs and those undertakings are indi- vidually concerned by those measures within the meaning of the fourth para- '64 ... [T]he general interest which an graph of Article 173 of the Treaty. OCT, as an entity responsible for economic and social affairs within its jurisdiction, may have in obtaining a result that is favourable for its econ- omic prosperity is not sufficient on its own to enable it to be regarded as being concerned, or — a fortiori — individually concerned, for the pur- poses of the fourth paragraph of 71 At paragraph 28 of that judgment the Article 173 of the Treaty, by the Court, after finding that the Commis- Regulation in question. sion was required to inquire into the negative effects which its Decision might have on the economy of the Member State concerned and on the undertakings concerned, did not con- clude from that finding alone that all of the undertakings concerned were indi- vidually concerned within the meaning of the fourth paragraph of Article 173 of the Treaty. On the contrary, it considered that only those undertak- ings which had already entered into contracts which were due to be per- formed during the period of appli- cation of the contested Decision but 67 ... [T]he fact that the Council or the which had been prevented from being Commission are required, by specific performed, in part or at all, were provisions, to take account of the individually concerned within the consequences for the situation of cer- meaning of the fourth paragraph of tain individuals of the act they are Article 173 of the Treaty... . intending to adopt may be such as to distinguish them individually... .
72 It follows from the foregoing that the finding that the Council was required,
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in so far as the circumstances of the OCTs, is a commercial activity that case so permitted, to take account at may be carried out at any time by any the time when [the] Regulation [in economic operator in any OCT. Rice- question] was adopted of the negative processing factories also exist in other effects which that Regulation might OCTs besides the Netherlands Antilles, have on the economy of the OCTs namely Montserrat and the Turks and concerned and on the undertakings Caicos Islands. Such economic activity concerned does not discharge the is not therefore such as to differentiate Netherlands Antilles from the burden the Netherlands Antilles from all other of proving that they were affected by OCTs. the Regulation by reason of a factual situation which differentiates them from all other persons.
73 The fact that the Netherlands Antilles exported by far the most rice originat- 75 In the light of the foregoing, the ing in the OCTs to the Community is Netherlands Antilles have not estab- not such as to distinguish them from all lished that their legal position has been other OCTs. Even if the assertion that affected by reason of certain attributes the safeguard measures laid down by peculiar to them, or by reason of a [the] Regulation [in question] were factual situation which differentiates liable to have significant socio-econ- them from all other persons and dis- omic consequences for the Netherlands tinguishes them individually. Antilles proved to be well founded, the fact nevertheless remains that those measures will have similar con- sequences for the other OCTs.
74 The economic activity in question in 76 Since they have not shown that they arc the present case, namely, the process- individually concerned by [the] Regu- ing of rice from third countries in the lation [in question], it is unnecessary to
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examine whether they are directly that the strict construction of the affected by that Regulation. expression 'natural or legal persons indi- vidually concerned' for the purposes of the fourth paragraph of Article 230 EC should be reconsidered. According to it, 'in order to ensure effective judicial protection for individuals a natural or legal person is to be regarded as individually concerned by a Community measure of general application that concerns him directly if the measure in question affects his legal position, in a 77 In those circumstances the action must manner which is both definite and immedi- be dismissed as inadmissible.' ate, by restricting his rights or by imposing his obligations on him. The number and position of other persons who are likewise affected by the measure or who may be so, are of no relevance in that regard.' 10
6. Since that reasoning is perfectly appli- cable to this case, I suggest that the Court should set aside the contested judgment and dispose of the case itself by declaring inadmissible the actions for annulment of Regulations Nos 2352/97 and 2494/97 brought by the Government of the Nether- lands Antilles.
8. However, that reasoning was rejected by the Court, in its plenary composition, in its 7. At the hearing, the Government of the judgment in Union de Pequeños Agricul- Netherlands Antilles invited the Court to tores v Commission, 11which was delivered adopt the Court of First Instance's reason- after the judgment of the Court of First ing in Jégo-Quéré v Commission. 9In that Instance, cited above. judgment, the Court of First Instance held
10 — Ibidem (paragraph 51). 9 — Case T-177/01 [2002] ECR II-2365. 11 — Case C-50/00 P, [2002] ECR I-6677.
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Conclusion
9. In those circumstances, I suggest that the Court should:
— set aside the judgment of the Court of First Instance of 10 February 2000 in Joined Cases T-32/98 and T-41/98 Nederlandse Antillen v Commission;
— declare inadmissible the actions for annulment of Commission Regulation (EC) No 2352/97 of 27 November 1997 introducing specific measures in respect of imports of rice originating in the overseas countries and territories, and Commission Regulation (EC) No 2494/97 of 12 December 1997 on the issuing of import licences for rice falling within CN code 1006 and originating in the overseas countries and territories under the specific measures introduced by Regulation (EC) No 2352/97; and
— order the Netherlands Antilles to pay the costs of the proceedings, including those of the proceedings before the Court of First Instance.
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