61962C0016
OPINION OF MR ADVOCATE-GENERAL LAGRANGE
DELIVERED ON 20 NOVEMBER 1962 (
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Mr President,
Members of the Court,
It has seemed appropriate to consider together Joined Cases 16 and 17/62 on the one hand, and Joined Cases 19 to 22/62 on the other, which were heard at the same time by the Court, because they raise the same point of principle — now put to the Court for the first time. The question concerns the interpretation to be given to the provisions of the second paragraph of Article 173 of the EEC Treaty, dealing with the conditions governing the admissibility of applications for annulment of Community regulations brought by a natural or legal person, other than a Member State, the Council or the Commission. In all these cases, the applications have been made by associations which are legal persons in private law, namely:
1.
Associations of producers of fruit and vegetables and dessert grapes, which are contesting Regulation No 23 of the Council, on the progressive establishment of a common organization of the market in fruit and vegetables; and
2.
Associations of wholesalers of meat and agricultural products, which are challenging Regulation No 26 of the Council, applying certain rules of competition to production of and trade in agricultural products.
In both cases, the applications seek only a partial annulment. It is sought to annul, first, Article 9 of Regulation No 23 — and the submissions in the applications affect only the last subparagraph of this Article which concerns the dispensing by Member States with recourse to the provisions of Article 44 of the Treaty. This Article permits the imposition of minimum prices during the transitional period. Second, as far as Regulation No 26 is concerned, only the annulment of the last sentence of Article 2 (1) is at issue: this provision is regarded by the applicants as establishing a system which discriminates in favour of the producers of agricultural products and against the interests of those traders who are not also producers.
By an Order dated 24 October 1962, the Court allowed the intervention of the Assemblée permanente des présidents de chambres d'agriculture in support of Applications 16 and 17/62. Since the intervener merely associates itself with the arguments of the applicants in the main actions, I shall say no more on the matter.
The Council has advanced a preliminary objection of inadmissibility in respect of each of the applications, which means that the procedure provided for by Article 91 of the Rules of Procedure now takes effect. According to Article 91 (4), you will be required to choose between one of the three following solutions: to uphold the objection, to reject it or to join it to the substance of the applications. Naturally, the applicants in the main actions challenge the objection, but they urge that before anything else it be joined to the substance of the applications.
This is the first question on which a decision is required. Very often it seems convenient to reserve judgment on the preliminary objection until the objection and the substance of the case can be considered together. This would be the case, prima facie, where pleas of inadmissibility put forward by the defendant, or liable to be raised by the Court of its own motion, seem doubtful or too unimportant to merit a separate judgment. It would also be the case where those pleas appear to be bound up with the substance of the case, or where at least they might be judged in a clearer perspective in the light of the more complete consideration given to the examination of the substance of the case.
But such is not the case here. Here, we are confronted with a question of principle which involves an interpretation of the Treaty. The issue is purely abstract and of general application. Moreover, so important is the issue to the question of the extent of judicial control of the Executive (the Council and the Commission), that it is greatly in the public interest that it be settled clearly, once and for all, independently of the actual case before the Court.
Like the ECSC Treaty, when the EEC Treaty established a method of controlling the legality of the acts of the executive by means of an application for annulment of those acts before the Court of Justice of the Communities, the Treaty also stipulated the conditions under which these applications would be accepted. These conditions specified both the types of persons who could bring an application, and the acts which could be appealed against. Again, like the ECSC Treaty, the EEC Treaty draws a distinction between certain privileged persons, essentially the Member States, which have no need to conform to specific requirements — principally the requirement of an interest to act — and other persons for whom, on the contrary, strict conditions had to be complied with, varying with the nature of the act appealed against.
But there the likeness ceases, for, when one examines the structure of the two systems, important differences appear between the two Treaties which have obviously been intended by the authors of the Treaty of Rome. Thus, only with the greatest circumspection would it be advisable to call in aid, when interpreting Article 173 of the EEC Treaty, the corresponding provisions of the Treaty of Paris, in particular Article 33 thereof and the case law arising out of it. One can point out only in a general way that the EEC Treaty is more liberal than the ECSC Treaty concerning (a) the definition of persons, other than privileged persons, having access to the Court (undertakings and their associations in the ECSC and ‘any natural or legal person’ in the EEC) and (b) concerning the nature of the grounds capable of being used in support of the application. But the EEC Treaty is, on the other hand, more strict than the ECSC Treaty with regard to the conditions which must be fulfilled before certain measures may be challenged. Finally, both the Treaty of Rome and the Treaty of Paris have carefully defined the different categories of measures emanating from the executive or the executives (ECSC, Article 14, EEC, Article 189) but these definitions do not coincide. In the application of the Treaty of Rome, moreover, it is to the definitions given in Article 189 that one must refer when another provision, such as Article 173, which concerns us here, uses one of the terms which have been defined as a ‘regulation’ or a ‘decision’.
It is against the background of these observations that we must approach the examination of the preliminary objection raised by the Council.
One question, raised both by the Council and by the applicants in Cases 16 and 17/62, concerns the admissibility of the applications insofar as they are brought by associations.
The council, while recognizing that this question is not decisive for the solution of this case, ‘expresses doubts whether the applicant associations are able to make an application whatever the nature of the measure challenged’. In fact, the Council adds, this administrative measure ‘does not affect the applicants as associations’, but merely the situation of their members; thus it is not ‘capable of being of direct concern to the said associations’.
This observation, as you see, leads us ‘directly’ to an interpretation of the terms of the second subparagraph of Article 173 which is the essence of this case; but this interpretation does not, and cannot, depend on the particular capacity of the applicants. According to the text, ‘any natural or legal person’ may institute proceedings; an association properly constituted according to the terms of the relevant national law is, obviously, a ‘legal person’ since the law itself accords it this quality from which flows normally the right to bring an action. It is quite true that a strict interpretation of the second subparagraph of Article 173 would have the result that associations would practically always be excluded from the right of instituting proceedings under this provision, for it is difficult to imagine that an association will be, in its own right, the addressee of a decision or that a regulation or decision addressed to another person will be ‘of direct and individual concern’ to the association in its capacity as an association. One could, as learned counsel for the applicants in Cases 16 and 17/62 has shown, develop an argument from the second subparagraph of Article 173 in favour of a wider interpretation, but even if a strict interpretation is admitted, this would not by itself have the effect in law of excluding associations from the field of application of the second subparagraph of Article 173. They are ‘legal persons’ and, as such, they fulfil the condition required by the text as to their capacity to institute proceedings.
out, that having been said, let us recall the text: ‘Any natural or legal person may, under the same conditions’ (that is to say, the conditions laid down in the first subparagraph of Article 173 concerning review of the legality of the Council's and Commission's acts other than recommendations or opinions) ‘institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former’.
The first case, that of proceedings instituted against a decision ‘addressed’ to the said natural or legal person, does not arise here; the various applicants acknowledge this.
As to the second case, there are two possibilities: that of a decision ‘in the form of a regulation’ and of a decision ‘addressed to another person’. It is the first possibility which applies here, and it will be advisable to exclude carefully from these proceedings everything that concerns the second, which you will soon have occasion to examine in other disputes.
According to the wording of the text, four conditions have to be satisfied before proceedings are admissible under the first head:
1.
the measure challenged must be a decision;
2.
it must have been made ‘in the form of a regulation’;
3.
it must be ‘of direct … concern’ to the applicant;
4.
it must also be ‘of … individual concern’ to the applicant.
Let us start with the second condition, the existence of which is the simplest to establish — a measure having the form of a regulation. It is evident that this is the position in the cases which have been submitted to you, whether Regulation No 26 is concerned.
Now for the first condition: the measure must be a decision. Here, in my opinion, is to be found the heart of the problem, and also the key to the solution.
Article 189, you will recall, defines the different measures which the Council or the Commission may take, in particular regulations and decisions :
‘A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States’.
‘A decision shall be binding in its entirety upon those to whom it is addressed’.
The first definition, that of a regulation, resembles the commonly admitted conception of this particular category of administrative measures as understood in the six countries of the Community. In form, it is an administrative measure because it is issued by an authority subordinate to the executive or by the executive itself; in substance, a regulation is a provision of a legislative nature
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a true type of subordinate legislation
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because it lays down rules of conduct which apply in their own right to all situations to which they refer, independently of the person, the individual.
The second definition, that of a decision, is without doubt more serviceable, for the term ‘decision’ may be employed with differing meanings. In particular, it is often considered in a comprehensive sense as comprising all administrative measures creating or modifying a legal situation or involving an obligation; a regulation is nothing more then than a type of decision, as is also the ‘deliberation’ of a corporate body — a term borrowed from French administrative law, which has given rise to difficulties in the ECSC Treaty.
One must also distinguish between ‘general’ decisions, which are not necessarily regulations (for example, a decision declaring a shortage within the Community, under Article 59 of the ECSC Treaty), and individual decisions. The Treaty of Rome has sought to define this terminology with precision and the definition given to the word ‘decision’ (‘A decision shall be binding in its entirety upon those to whom it is addressed’) seems to me to apply precisely to the concept of an individual decision. Of course, the same decision may concern several addressees (the plural implies this): it is then a collective decision which is in reality merely a series of individual decisions.
a ‘decision’ thus defined does not cover a regulation but, on the contrary, is contrasted with it. In the Treaty of Rome the same administrative measure cannot be both a regulation and a decision at the same time. So that when Article 173 speaks of a decision ‘in the form of a regulation’, it envisages the case of provisions which are only in appearance regulations but which, in reality, from the very fact that they are in their substance decisions, do not have the quality of regulations. And that is why it has been decided in the Treaty to apply the rules concerning decisions to them, notably those relating to proceedings of which such decisions may be the subject.
For were it otherwise, one would nave to admit that the term ‘decision’, as it appears in the second subparagraph of Article 173, should be understood in its wider sense, synonymous, for example, with a ‘measure’, and should not be taken in the precise sense given to it in the definition in Article 189. This is what the applicants in Cases 16 and 17/62 appear to contend, since they have drawn attention to the fact that the expression ‘individual decisions’ does not appear in Article 173. But this argument is hardly tenable if one takes the trouble to read the whole of the provision in question.
The right of ‘natural ana legal’ persons, other than the Member States, the Council and the Commission, to institute proceedings may be used, first, against a decision ‘addressed’ to the interested party: this corresponds exactly with the definition given to ‘decisions’ in Article 189. As to the two other cases in which proceedings may be instituted, they both require that the decision should be ‘of direct and individual concern’ to the natural and legal persons in question. Can one really admit that a decision ‘of individual concern’ to someone is not an individual decision? Is that not merely a play on words? On the contrary, it is the individual character of the administrative measure as it affects the natural or legal person which justifies giving this person the right to institute proceedings and assimilating his position to that of an addressee.
I think then that the decision contemplated in the second subparagraph of Article 173 can be nothing other than an individual decision in the form of a regulation.
But certain of the applicants (it is the essential argument in Cases 19 to 21/62, and it is presented as a principal argument in Case 22/62) explicitly maintain that the measures being challenged, or at least those of their provisions which are the subjects of these applications, are in fact individual decisions and not regulations. Indeed, according to Article 189 a regulation must have ‘general application’, a characteristic not presented by Regulation No 26, for, we are told, such a quality cannot attach to a measure which has in mind only clearly defined categories or groups of persons.
This interpretation of the concept of a regulation is erroneous. What distinguishes a regulation is not the greater or lesser extent of its application, material or teritorial, but the fact that its provisions apply impersonally to objective situations, however limited or narrowly defined they may be. A regulation may in this way, as we have seen, be contrasted with an individual decision which is concerned with one or more legal persons, one or more individuals. These ideas are so elementary that it seems useless to emphasize them more.
In this particular case, the two regulations challenged have not, either in their totality or in those of their provisions challenged in the applications, the least resemblance to an individual decision, that is to a ‘decision’ within the meaning of Articles 173 and 189 of the Treaty. As a result, it seems pointless to investigate whether the relevant provisions are ‘of direct and individual concern’ to the applicants.
Let melimit myselftoobserving, although strictly this is superfluous, that it will be of no avail to follow the applicant associations in their efforts to compare the interests or the sphere of interests that they represent with the provisions of the regulations interfering with those interests. These efforts might be upheld in a legal system other than that which has been established by the Treaty, and particularly if the Treaty had been limited to requiring, as in the internal law of those Member States which allow applications for annulment against regulations; proof of an interest, or even of a direct interest, before an application can be admissible. This would have been in accord with the principle which governs the matter of applications for annulment. As you know, the Court has on many occasions made use of the concept of an interest in the application of the ECSC Treaty, although that expression does not appear in the text of that Treaty; the Court has done so in general by implication, but sometimes expressly. The Advocates-General, for their part, have expressly taken it into account to justify certain solutions, and legal writers have often had occasion to insist on this aspect of an application for annulment. But on those occasions there was involved the interpretation of certain provisions of the ECSC Treaty which called for such an interpretation. The Court too has never admitted that this concept of interest was itself capable of affecting the legal character of the measure in question; it is for that reason that the Court has not followed the suggestion to introduce an element of relativity into the concept of an individual decision, and has kept instead to the orthodox concept of a regulation, to which it seems to have assimilated that of a general decision. (Case 8/55, Federation Charbonnière de Belgique v. High Authority, 16 July 1956, Rec. 1955/1956, pp. 223 and 224; opinion of the Advocate-General pp. 245 et seq.). A similar attempt is, a fortiori, excluded from the framework of the EEC Treaty.
In this Treaty, in short, there is no place for a body of case law governing the concept of an interest, because from all the evidence its authors intended themselves to determine the conditions governing the admissibility of proceedings by persons other than those I have called ‘privileged persons’, and that has been done in terms so precise as to leave hardly any room for interpretation. As for the associations, it is true that they will barely have any chance to act by way of a direct application, but their role will be by contrast more important within the domain of intervention, since a complaint may be laid by one of the methods of recourse remaining open to them. The case law of the Court is sufficiently liberal on this subject and intervention provides a procedure particularly well adapted to associations whose purpose it is to defend the general interests of the trades concerned and the members of those trades.
Such is the system that the jurist, for his part, might find unsatisfactory, but which the Court is bound to apply. This is not the place to justify the system. One might observe only that it is coherent and that serious arguments can be put forward to justify it.
It is coherent, for, if on the one hand it refuses in principle to private persons the right of a direct application for annulment against Community regulations it makes express provision on the other hand for the objection of illegality (Article 184) and for reference to the Court of Justice of preliminary questions concerning, in particular, the validity of regulations (Article 177), which remedy in part the inconvenience resulting from the absence of a direct action. In this respect the legal situation within the Community is undoubtedly less favourable than that which has been reached for a greater or lesser length of time by some of the Member States, but it is similar to that known in the other States.
As to the arguments in support of the system, they are concerned essentially with, first, the quasi-legislative character which the regulations normally assume (since they are adopted in implementation of a Treaty which is largely an ‘outline law’) and secondly, the extremely grave consequences that would follow from even a partial annulment of the regulations. As is well known, particularly in the case of agricultural regulations, these texts have been arrived at only after considerable difficulty, and sometimes after a compromise reached in the Council, still wedded to the rule of unanimity. One might ask, and you know that some people do ask themselves today, whether on such a matter, impinging as it does on the field of legislation, the proper counterweight to the action of governments represented in the Council ought not to be sought in a more effective participation by the parliamentary organ of the Community.
I beg to be excused for this incursion into the political arena. I have undertaken it only to show that we are presented here, by the authors of the Treaty, with a considered choice which it cannot be for the Court to correct.
To conclude, I wish to reply to the arguments put forward in Application 22/62, based on the principles of German consitutional law relating to the legal protection which has been established within the German legal system. This reply may be found in one of your judgments (Cases 36 to 38/59 and 40/59, Comptoirs de vente du charbon de la Ruhr and Nold v. High Authority, Rec. 1960, p. 857 to p. 890). ‘The Court, which judges the legality of decisions taken by the High Authority and consequently of those taken in the present case in accordance with Article 65 of the ECSC Treaty, does not have the function of ensuring respect for rules of internal law, even of consitutional law, in force in one or other of the Member States.’
In short, I consider that the objection raised by the Council in all these cases ought to be upheld and, consequently, I am of the opinion :
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that the applications should be dismissed; and
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that the costs be borne by the applicant associations, with the costs of the intervener in Cases 16 and 17/62 to be borne by the latter.
(
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