61969C0063
OPINION OF MR ADVOCATE-GENERAL ROEMER
DELIVERED ON 11 MARCH 1970 (
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Mr President,
Members of the Court,
In the three cases before us today, 63/69, 64/69 and 65/69, we are concerned with certain measures taken by the Commission in the field of common organizations of agricultural markets after the devaluation of the French franc in August 1969 in order to prevent an increase of prices in France.
In this context, it must be remembered that the system of common agricultural prices is based on the unit of account. It is therefore plain that any modification of the parity of the currency of a Member State could carry with it serious disturbances for the common system. Regulation No 653/68 of the Council of 30 May 1968 (OJ, L 123 p. 4) ‘on conditions for alterations to the value of the unit of account used for the common agricultural policy’ was adopted with the possibility of these modifications of parity in mind. Article 4 thereof provides that: ‘The value of the unit of account… shall be suspended, from the time of the official announcement by the Member State which first announces an alteration in the parity of its currency, up to and including the day of publication of the value thenceforth applicable’. The same Article provides further that : ‘Settlement of transataions involving agricultural products or goods processed therefrom, where such transactions are carried out during the suspension period and are subject to provisions of the common agricultural policy or to special trade systems applicable, to those goods, shall take place only after publication of the value of the unit of account thenceforth applicable as provided for in the preceding paragraph and shall be based on the new value and take into account the alterations made pursuant to Articles 5 and 6’. Accordingly, immediately after the announcement of the decision of the French Government relating to the modification of the parity of the franc, a communication from the Commission relating to the suspension of the value of the unit of account was published in the Official Journal of the European Communities of 8 August 1969. After this communication, the Council not having decided to modify the value of the unit of account within the required period, the Commission was obliged to publish in the Official Journal of 12 August 1969 another communication stating that the unit of account applicable from 11 August 1969 remained unchanged. Since the common agricultural prices also had not been changed, there necessarily ensued in France a rise in producer and consumer prices in proportion to the rate of the devaluation. However, for reasons of conjunctural policy this appeared undesirable. Regulation No 1586/69 of the Council was therefore adopted on 11 August 1969 (OJ, L 202 p. 1) under Article 103 of the EEC Treaty. This Regulation prevented the inevitable price increases on the French market by providing in Article 1 for a reduction in the intervention or buying-in price payable by France in French francs under the regulations on the common organizations of the agricultural markets, by reason of intervention on the domestic market and by providing further in Article 2 for a reduction in the amounts payable by France under the regulations on the common organizations of the agricultural markets, by virtue of other interventions on the domestic market. Since, however, in relation to other Member States, differences in the intervention prices increased, at the same time compensatory measures at the frontiers became necessary. For that reason, Article 3 of Regulation No 1586/69 provides that: ‘in so far as it is necessary to compensate for the effects of the measures referred to in Articles 1 and 2 concerning agricultural products subject to the common organization of the market and products processed therefrom and subject to special rules under Article 235 of the Treaty’, France shall grant subsidies on imports from Member States and third countries and shall levy compensatory amounts on exports to Member States and third countries. The framework of the measures to be taken was thus outlined. In accordance with Article 8 of the Regulation, details were to be settled by the Commission in implementing provisions, namely the amount of the reductions referred to in Article 2, and the import subsidies and compensatory amounts payable on exports referred to in Article 3. Regulation No 1670/69 of the Commission relating to ‘certain measures to be taken in the cereals and rice sectors following the devaluation of the French franc’ (OJ L 214, 1969 p. 7) was adopted on 22 August 1969 on the basis of the said Article 8. For products subject to organizations of the markets in the cereals and rice sectors this regulation ensured that the level of intervention prices in French francs should remain unchanged. Furthermore, it fixed the subsidies to be granted by France on imports and the compensatory amounts to be levied on exports. This was done as regards individual products in an annex to the regulation. In the present case, the important considerations are the charge of 58.49 FF per metric ton on common wheat and on mesiin in tariff heading No 10.01 A and the sum of 81.87 FF per metric ton on wheat or mesiin flour under tariff heading No 11.01A. Moreover, it is on the basis of Regulation No 1586/69 that the Commission's Regulation No 1660/69 of 22 August 1969‘on measures to be taken in the agricultural sector as the result of the devaluation of the French franc’ (OJ L 213, 1969 p. 1) was adopted, Article 2 of which is equally in point for the purposes of this case. According to this article, in respect of trade with third countries the compensatory amount is reduced by a given sum if the exporter can establish that the export is the subject of a contract made before 11 August 1969 in which the selling price was expressed in French francs. In a case where the refund can be fixed in advance, this provision applies only where use has been made of this opportunity. The French undertakings which instituted the present proceedings criticize these measures. In its capacity as a trading concern which, under its own name and on its own account, exports flour for certain French mills, the applicant in Cases 63 and 64/69 maintains that the compensatory amount applicable to flour derived from wheat and mesiin has not been correctly assessed. It says that the assessments took into account only the fact that the price of wheat in France remained constant and failed to take into consideration the increase in non-agricultural costs which are payable in foreign currency (transport and packaging). By virtue of this, the applicant has suffered damage. Furthermore this applicant maintains that it is penalized by the restriction contained in the second paragraph of Article 2 (1) (a) of Regulation No 1660 since, although it concluded export contracts before 11 August 1969, it did not request that refunds be fixed in advance. That constitutes an infringement of the principle of equality of treatment.
The applicant in Case 65/69, a trading concern importing wheat for certain French mills under its own name and on its own account, objects to the subsidy laid down for common wheat and mesiin, because that also takes account only of the fact that French wheat prices did not rise and does not take into consideration price increases on imported wheat. This applicant thereby suffers damage since the prices it has to pay are too high.
Accordingly the applicants instituted proceedings before the Court of Justice on 20 and 22 October 1969, seeking in particular:
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In Case 63/69: the annulment of Regulation No 1670/69 in so far as in the annex thereto under tariff heading No 11.01 A a compensatory amount of 81.87 FF per metric ton on wheat or mesiin flour is fixed and to the extent that Article 6 thereof provides that the provisions of Article 2 are to take effect as from 11 August 1969;
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In Case 64/69: the annulment of Regulation No 1660/69, in so far as the second paragraph of Article 2 (1) (a) thereof provides that in respect of trade with third countries the compensatory amounts can only be reduced where use has been made of the opportunity of assessing in advance the amount of the refund and to the extent that Article 3 of the Regulation determines that the provisions of Article 2 are to take effect as from 11 August 1969;
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In Case 65/69: the annulment of Regulation No 1670/69, to the extent that in the annex thereto under tariff heading No 10.01 A it fixes a subsidy of 58.49 FF per metric ton on common wheat and mesiin.
The Commission's response to these applications was based solely on Article 91 of the Rules of Procedure, that is, it asked for the applications to be declared inadmissible without going into the substance of the cases. Thus it was that after the applicant undertakings had replied on this limited issue, only the admissibility of the applications was discussed at the oral proceedings on 17 February. My opinion must therefore be similarly confined to the question of admissibility.
1.
As far as this question is concerned the sole consideration in the present case, which is certainly not concerned with decisions addressed to the applicants or to another person within the meaning of the second paragraph of Article 173 of the EEC Treaty, is whether the disputed sections of the measures, all of which the Commission describes as regulations, are really decisions, and whether these decisions are of direct and individual concern to the applicants.
Before embarking on the necessary investigations, it must be noted that we are concerned here with conditions to be fulfilled concurrently. Contrary to what the applicants maintain it is not enough to prove that the measure concerns them individually and directly. The legal nature of the disputed measures is also of importance. Case 40/64 (Sgarlata v Commission of the EEC [1965] E.C.R. 215) permits no other conclusion. On that occasion the Court of Justice limited its investigation to the question of finding whether the applicant was individually and directly concerned only because that was all that was needed in order to decide the question of inadmissibility against the applicant. That is not to say, on the other hand, that the same considerations are sufficient in all cases to decide the admissibility of an application. Following the most recent case-law of the Court, as developed in Cases 30/67 and 6/68 (Rec. 1968, pp. 179 and 604), as well as the rules of logic, I shall consider first in the following examination what is the legal nature of the contested measures, and then, if necessary, whether they are of direct and individual concern to the applicants.
Before doing that, it might be mentioned that research into the legal nature of a measure is not to be ended simply by establishing that it has the general features of a regulation. The necessary findings must be made on the basis of all the separate elements of the measure, in other words, one must proceed in a selective fashion, but without losing sight of the general context. This is clearly established by the case-law in Joined Cases 16 and 17/62 [1962] E.C.R. 471. There is therefore no need to add anything further.
2.
After these preliminary remarks let us go on to examine the legal nature of the measures, which provide for the payment of a subsidy of 58.49 FF per metric ton on the import of common wheat and mesiin into France and for the compulsory payment of a compensatory amount of 81.87 FF per metric ton on the export of wheat or mesiin flour. These sums can be examined together, since they apply equally to imports and to exports, and no distinction in the method of evaluating them is therefore justified.
As far as this matter is concerned in our cases, let me say first that the Commission's explanations make it evident that we shall encounter no special difficulties. I can therefore be relatively brief. In presenting the facts I have already indicated the purposes these measures were designed to fulfil in relation to the conjunctural policy regulation, Regulation No 1586/69, adopted by the Council. The problem was to maintain in France the level of intervention prices and other price guarantees in French francs which applied before devaluation — in other words, to prevent the rises in prices which the common market organizations would necessarily have brought about as a result of the change in the value of the unit of account. Given the level of intervention prices in the other Member States, this result could only be achieved by means of compensatory measures at the frontiers, that is, by reducing the price of, or subsidizing, dearer imported products and levying charges on French exports. At the same time it is clear that the measures to be taken could not be limited to basic products (common wheat and mesiin, in this case) but must include also processed products subject to common market organiztions (flour, in our case) because the prices applicable to basic products naturally affect those of processed products. Finally, it must be remembered that the measures taken were to remain in force, initially, for one financial year (1969/70).
In fact these considerations, particularly recognition of the context in which the measures were taken and their effect on the common market as a whole, make it evident that we are concerned with legislative measures. The category of persons affected by them is complex. It comprises not only the intervention agencies, and the producers of basic and processed products, but also merchants established in Member States and third countries interested in commercial relations with France — in short all those who are involved in the market in question during the period of operation of these measures. In terms which this Court has already employed (in Cases 16 and 17/62), we can therefore say that the measures adopted have general application and that they apply to ‘categories of persons viewed in an abstract manner’ ([1962] E.C.R. 472; see also Case 30/67, Rec. 1968, p. 181).
On the other hand, if the objection is raised, as it is by the applicants, that those concerned by the measures were identifiable at the date on which the measures were adopted, so that it is possible to speak of an ascertainable class, it must be said in response that, so far as the date on which the measures were issued is concerned, that might be said of any measure, even a clearly legislative one. However, it would be wrong to split up, so to speak, measures which are uniform by looking at the matter in this way, and to define the legal nature of the measures according to the period of their validity.
At the same time I consider that the applicants' observation that they are not contesting the principle of the import subsidy and the export charge but only the level of the amounts stipulated, is not relevant. In fact, it gives us no help in deciding the legal nature of the measures in question, although one has to admit that the different French undertakings which form part of the category of those concerned are not affected in the same manner owing to their geographical positions and, connected with this, to the transport costs which they have to pay. The determination of the legal nature of the measures which the Court has to consider does not depend on these differences of degree, but simply on the fact that at the moment the measures are adopted it is not possible to say to whom they will apply during the course of their validity. Thus, even if we consider only the level of the amounts in question, and not whether in principle amounts should be fixed, we cannot fail to note that they are applicable to categories of persons defined abstractly, or in other words, their character is legislative.
Having regard to the fact that the amounts referred to by the applicants do not apply solely to a limited number of addressees, as the notion of a decision requires, I can state, with regard to the first point of my examination, that the application for annulment under the second paragraph of Article 173 of the EEC Treaty cannot succeed. That conclusion renders unnecessary any consideration of whether the measures in question are of individual and direct concern to the applicants.
3.
Secondly, it is necessary to determine the legal nature of the provision of Article 6 of Regulation No 1670/69, which is only concerned in Case 63/69. As we know, this Article fixed the date of entry into force of the Regulation (namely 25 August 1969) and provided further that the provisions of Articles 2 to 4, and so also the compensatory amount in respect of tariff heading No 11.01 A, should take effect as from 11 August 1969.
On this point, too, my comments can be brief. Of course, one is bound to recognize that at the time this provision was adopted, (22 August 1969), it was possible to say who was effected by it as from the date of its entry into force, a period of 11 days or so. However, I agree with the Commission that the legal nature of the provision cannot be determined by reference to this factor; it depends on other considerations. As the Commission rightly says, Article 6 of Regulation No 1670/69 contains rules as to the applicability in time of that regulation. Rules of this kind in fact partake of the legal nature of the provisions the applicability of which they concern. The Court confirmed that a short while ago in Case 6/68 (Rec. 1968, p. 605) although the facts there do not correspond exactly with those in the present case. One might consider that, in the case of measures clearly of a legislative character, it seems artificial to draw distinctions based on their areas of application so far as time is concerned, and to speak of a decision to the extent that there is retroactive effect, and otherwise of a regulation. The reference to Cases 106 and 107/63 [1965-I] E.C.R. 405 is certainly of no value in that respect for the simple reason that they concerned a measure of the Commission which produced its effects exclusively on the past.
So Article 6 of Regulation No 1670/69 may also be taken to be a legislative measure. Therefore, the applicant has no right to seek its annulment, and once again there is no need to consider the question whether the measure is of direct and individual concern to the applicant.
4.
Case 64/69 concerns a problem of admissibility in relation to the provision of Article 2 of Regulation No 1660/69 which entered into force with retroactive effect. As the. Cour t is aware, according to this provision, the compensatory amount payable on exports to third countries under contracts concluded before 11 August 1969 and payable in French francs can only be reduced if, where the assessment of the amount of refund may be fixed in advance, use has been made of this opportunity.
If we ask ourselves how to characterize this provision the answer is not so clear as in the cases with which we have been concerned up to now. The Commission has declared on this point that it is a transitional provision and that it must therefore be admitted that it partakes of the character of the provisions whose application it governs. Furthermore, this provision operates as a limitation on an exception to the general rule, so that we can say that the general rule itself, namely the imposition on French exports of compensatory amounts, is brought into question. At first sight this understanding of the matter appears to me absolutely convincing. In fact it is possible to endorse the view that the applicant's complaint is directed against the general rules more precisely because it maintains that it was wrongly excluded from the transitional rules of Article 2 of Regulation No 1660/69. However, I now doubt whether such an argument is tenable, and that is why I prefer not to judge the question of admissibility in Case 64/69 solely on the basis of considerations relating to the legal nature of the contested measure.
If, as the applicants think, emphasis is to be laid on the rules contained in Regulation No 1660/69 and the fact that the exceptions it makes are insufficient because they do not encompass the contracts concluded by the applicant, then it is difficult to speak of a legislative measure in view of the fact that the measure is exclusively concerned with the past. In fact, the measure relates only to certain matters situated in the past, namely export contracts concluded with traders from third countries before 11 August 1969, and which, moreover, as required by Article 2 (2) of the regulation, were registered with the French authorities before 18 August 1969. It can therefore be said with certainty that this measure concerns only a limited category of ascertainable persons concerned. From the point of view of administrative law, the measure can consequently be considered as a general act (‘Allgemeinverfügung’ in German law). However, since according to the principles of case-law developed by this Court the essential element in the concept of a regulation is not only its general validity, but the fact that it refers to a category of persons viewed in an abstract manner and not identifiable at the time of its issue, it is in my opinion impossible, having regard to the legal nature, of the measure in question in Case 64/69, to say that it cannot be the subject of an application for annulment.
Thus, as I have already indicated, the examination should be extended to the question whether the applicant, whose contracts are not covered by Regulation No 1660/69, is able to maintain that it is individually concerned. To tell the truth it is not easy to formulate a reply to that question either, since the criteria developed in the case-law are somewhat sparse. First of all, we can begin with the fact that it is possible to speak of an individual interest not only when one person is adversely affected. However, where there are severa-interested parties it is certainly more diffil cult to say where the line must be drawn beyond which it is no longer possible to say that the quantitative point of view cannot be ignored. The judgment in Cases 106 and 107/63 in which the application was declared admissible appears to me to favour that point of view, for those cases were concerned with a small and easily ascertainable number of German importers of a particular product, to which a retroactive measure of the Commission applied. It seems to me that that is also what is envisaged by the reference employed in the definition given by the Court of Justice, and according to which, in order to speak of an individual interest, the party concerned must be distinguished just as in the case of the person addressed by the decision (Cases 106 and 107/63 [1965-I] E.C.R. p. 442, Case 6/68, Rec. 1968, p. 606). It is, nevertheless, difficult to say whether this applies in the present case. The applicant has already referred to a whole series of contracts which it concluded before 11 August 1969, and to which in its estimation Regulation No 1660/69 ought to have been extended. It was said in the course of the oral proceedings that 50 other companies in France export flour. It must be noted, moreover, that the possibility of fixing in advance the amounts of refunds, which is referred to in the second paragraph of Article 2 (1) (a) of Regulation No 1660/69, applies to a whole series of further products. These the Commission has set out in detail in page 8 of its interlocutory application, and has thus clearly illustrated the general economic scope of the provisions criticized (to use an expression employed in Case 1/64 [1964] E.C.R. 417) and the extent of the category of persons affected by Regulation No 1660/69. In fact, it is difficult to conceive that individual decisions could have been addressed to them all. Not only would this be a difficult feat from the point of view of administrative practicability but, more significantly, it would be most uncommon as a matter of legislative practice.
Basing my argument on those considerations and on the proposition that the contested measure is not of a legislative nature, it follows, bearing in mind the formula employed in Case 25/62 [1963] E.C.R. 107, that the applicant cannot say that it is individually concerned. This means that the application in Case 64/69 must also be dismissed as inadmissible.
5.
To summarize: the Court of Justice should uphold the application made by the Commission under Article 91 of the Rules of Procedure and, without going into the substance of the case, declare the applications inadmissible. Since the applications under the second paragraph of Article 173 of the EEC Treaty must be dismissed the applicants must also be ordered to pay the costs.
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