61985CC0333_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
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Mr President,
Members of the Court,
1 . The applicants in these proceedings - the German steel undertakings Mannesmann-Roehrenwerke AG and Paderwerk Gebrueder Benteler GmbH & Co . - seek the annulment of Council Regulation ( EEC ) No 2355/85 of 6 August 1985 supplementing Regulation ( EEC ) No 60/85 of 9 January 1985 .
I - 2 . Both undertakings manufacture and market steel pipes and tubes, products which are not included in Annex I to the ECSC Treaty and which are therefore subject to the rules of the EEC Treaty .
3 . Between them, the applicants account for approximately 70% of German exports of those products to the United States .
4 . Furthermore, they are the largest of the six German undertakings that manufacture a special category of steel tubes known as "OCTG" ( Oil country tubular goods ) which are used in the areas in which oil is produced .
II - 5 . In view of the threat to steel exports from the Community to the United States, the Community considered itself obliged to enter into negotiations with that country culminating in the conclusion on 21 October 1982 of an arrangement restricting Community exports of a number of iron and steel products . ( 1 ) Those products did not include steel pipes and tubes .
6 . However, the arrangement was accompanied by an exchange of letters on the same date which was designed to prevent diversions of trade from products covered by the arrangement towards steel pipes and tubes, which at the time were not subject to any restrictions . In that regard, the Community considered that for the duration of the arrangement, that is to say until the end of 1985, its annual exports of steel pipes and tubes to the United States were unlikely to exceed the average percentage of Community sales on the American market during the period from 1979 to 1981, with the result that there would not be any diversions of trade . However, in the event of problems arising in that market, a consultation procedure could be set in motion enabling the parties to discuss the trend in Community exports of pipes and tubes .
7 . In the event, those exports largely exceeded the levels forecast, with the result that the United States authorities imposed, as from 29 November 1984, an absolute ban on imports of steel pipes and tubes from the Community .
8 . Once again, negotiations were initiated between the Community and the United States authorities, culminating in the conclusion on 7 January 1985 of an arrangement in the form of an exchange of letters concerning trade in steel pipes and tubes, which was approved by Regulation ( EEC ) No 59/85 of 9 January 1985 . ( 2 )
9 . The arrangement, which was to be applicable until 31 December 1986, provided essentially that :
10 . the Community was to restrain exports to the United States of steel pipes and tubes to a level of 7.6% of United States apparent consumption for 1985 and 1986; during that period, export licences would be required;
11 . within that 7.6% limit, exports of OCTG tubes were not to exceed 10% of United States apparent consumption of such products .
12 . Pursuant to that arrangement, the Council adopted Regulation ( EEC ) No 60/85 of 9 January 1985 ( 3 ) laying down various implementing measures .
13 . In Annex III to that regulation, the Commission allocated among the Member States for all the products concerned the quantities to which the Community had agreed to limit its exports, and left it to those States to share out the quantities allocated to them among undertakings in accordance with "objective criteria" ( third recital in the preamble to the regulation ).
14 . As far as OCTG tubes were concerned, however, Annex III to the regulation merely left the allocation of the Community sub-quota amongst the Member States to be decided on subsequently by the Council, acting by a qualified majority on a proposal from the Commission, before 31 January 1985 .
15 . There was a delay in the allocation of that sub-quota, which was carried out by Regulation ( EEC ) No 2355/85 of 6 August 1985 . ( 4 According to the scale for allocation included in that regulation, 43.8% of the Community quota for OCTG tubes ( representing 4.38% of United States apparent consumption ) was allocated to the Federal Republic of Germany .
III - 16 . That is the regulation contested by the applicants; they seek its annulment on the ground that the manner in which it divides the Community export quota for OCTG tubes into national sub-quotas places the German steel industry at a disadvantage and is detrimental to its interests .
IV - 17 . The Council begins by challenging the admissibility of the application, and that is undoubtedly the first question which needs to be resolved in the analysis of this case .
18 . The Council doubts whether the applicants have a genuine legal interest in bringing an action, and finds no justification for the initiation of proceedings by them on behalf of all the German pipe and tube exporters, still less on behalf of the Federal Republic of Germany which is the real beneficiary of the quota allocated under Regulation No 2355/85 .
19 . On the basis of an analysis of the requirements laid down by the second paragraph of Article 173 of the EEC Treaty for an action for annulment brought by a natural or legal person to be admissible, the Council comes to the conclusion that the action is inadmissible on the ground that, quite apart from the question whether Regulation No 2355/85 is a genuine regulation or a decision addressed to the Member States, the applicants cannot claim that it is of direct and individual concern to them .
20 . Hence, in the Council' s view, the means of redress available to the applicants is not an action under Article 173 of the EEC Treaty but an action before a national court challenging the decisions of the competent national authorities allocating the national quota amongst the undertakings concerned pursuant to Regulations No 60/85 and No 2355/85 .
21 . The question of the validity of Regulation No 2355/85 could then be referred to the Court of Justice by the national court under Article 177 of the EEC Treaty .
22 . I shall therefore start by ascertaining whether the requirements for the admissibility of this application are satisfied .
V - 23 . According to the second paragraph of Article 173 of the EEC Treaty, "any natural or legal person may ... institute proceedings ... 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 ".
24 . The admissibility of the application thus depends on whether the following requirements are satisfied :
25 . the measure in question must be a decision;
26 . it must have the appearance or be in the form of a regulation ( or a decision addressed to another person );
27 . it must be of direct concern to the applicant; and
28 . it must be of individual concern to him .
29 . As those requirements are cumulative the application will not be admissible unless they are all satisfied .
30 . However, the applicants do not consider it necessary to determine whether or not the contested Community measure constitutes a "genuine" regulation since in their view it is sufficient to demonstrate that the measure is of direct and individual concern to them for the application to be admissible .
31 . That is not in my view the best approach and it seems, moreover, to be based on an interpretation of previous decisions of the Court which the latter clearly do not support .
32 . The Court has in the past declared an application inadmissible where one of the requirements of Article 173 was not satisfied, thereby releasing itself from the obligation to consider the others .
33 . In that regard the Court has already stated quite clearly that applications "should be dismissed as inadmissible if the measure in dispute constitutes a regulation ". ( 5 )
34 . That is why the Court has on several occasions begun by examining the nature of the measure in question, and has dismissed the application without considering whether or not the measure was of direct and individual concern to the applicant once it had come to the conclusion that the measure was in the nature of a regulation . ( 6 )
35 . On other occasions, the Court has preferred not to state its views on the question whether or not the contested measure is a genuine regulation and has merely held that the measure was not of direct and individual concern to the applicant . ( 7 )
36 . It is quite clear that the requirement that the contested measure must be of individual concern to the applicant is closely connected with the requirement that the measure must be in the nature of a decision; it is only in exceptional cases that a measure which satisfies the criteria of direct and individual concern is not at the same time in the nature of a decision .
37 . However, that has to be established in every individual case . Moreover, as Mr Advocate General Warner pointed out in his Opinion in Calpak ( at pp . 1970 and 1971 ), there is abundant authority in the decisions of the Court "to the effect that, in the correct analysis, the requirement that the provision in question should be, by its nature, a decision and not a legislative act is independent of the requirements that it should be of direct and individual concern to the applicant ".
38 . I propose therefore to begin my examination of the issue of admissibility by determining the nature of the measure in question .
VI - 39 . The aim of the second paragraph of Article 173, so far as it concerns us here, is to prevent a Community institution, by choosing the form of a regulation, from concealing a decision addressed to an individual, thereby precluding the latter from exercising the right of action available to him under the first part of the second paragraph of Article 173 . The choice of form cannot change the nature of the measure . ( 8 )
40 . Hence it is not the "official title of a measure" that matters, but rather its purpose and content . According to Article 189 of the EEC Treaty, a regulation has general application and is directly applicable in all Member States . Accordingly, as the Court has held, ( 9 ) a regulation is essentially a measure of a legislative nature which is applicable to objectively determined situations and which involves immediate legal consequences for categories of persons viewed in a general and abstract manner .
41 . The disputed measure in this case is unequivocally in the form of a regulation - Regulation No 2355/85 - and its purpose is to fill a space left in another regulation, namely the OCTG entry in Annex III to Regulation No 60/85 . Accordingly, an examination of the nature of Regulation No 2355/85 cannot be dissociated from Regulation No 60/85 which preceded it and of which it became part .
42 . It is indisputable that Regulation No 60/85 contains essentially provisions of a legislative nature whose purpose is to regulate the conditions for the application of the arrangement on voluntary restraint concluded with the United States of America in January 1985 .
43 . It remains to be seen, however, whether those combined legislative measures include provisions which are of individual concern to the applicants and thus, by their very nature, fall outside the overall classification of those measures .
44 . The Court has already acknowledged ( 10 ) that a measure which is considered a regulation in its entirety may contain provisions which are of individual concern to certain persons and are not therefore in the nature of a regulation .
45 . This problem may arise precisely in relation to Annex III to Regulation No 60/85 . That, in any event, is what the applicants maintain in relation to Regulation No 2355/85 . I shall therefore focus my attention on that contested regulation .
46 . The applicants maintain that Regulations Nos . 2355/85 and 60/85 are independent of one another, with the result that it makes no difference, for the purposes of its classification, whether Regulation No 60/85 is considered a "genuine" or a "false" regulation .
47 . That approach strikes me as excessively formal . As we have seen and, moreover, as is clear from its title, Regulation No 2355/85 was intended to supplement Regulation No 60/85 . The new regulation designed to supply the missing table was adopted only because, for some time, the Council was unable to reach agreement, and therefore the treatment accorded to that measure cannot be different from that which would be accorded to it if the provisions adopted had been included in Annex III to Regulation No 60/85 from the outset .
48 . In any event, the applicants maintain that Regulation No 2355/85 is not of a legislative nature but is rather in the nature of a decision addressed to the six undertakings which are the sole exporters of OCTG tubes in Germany and whose names were known from the outset .
49 . In my view, however, that fact is not, in itself, sufficient to deprive the measure in question of its status as a regulation .
50 . As the Court has already emphasized on several occasions, ( 11 ) "... the nature of a measure as a regulation is not called in question by the possibility of determining more or less precisely the number or even the identity of the persons to whom it applies at a given moment as long as it is established that it is applied by virtue of an objective legal or factual situation defined by the measure in relation to the objective of the latter ".
51 . The contested regulation appears to satisfy that requirement . It applies ( like Regulation No 60/85 ) to exports to the United States of certain categories of pipes and tubes from all the Member States of the Community and, throughout the period in which it is to remain in force, it affects all exporters from those States, who are defined in general and abstract terms by reference to their objective situation .
52 . Clearly, the very nature of the table contained in Regulation No 2355/85 ( and of the one in the first part of Annex III to Regulation No 60/85 ) supports the view that the requirements laid down therein could quite conceivably constitute a decision, without there being any need to adopt them in the form of a regulation .
53 . In my view, however, the context in which those tables are set is unequivocal . The general rules for implementing the voluntary-restraint arrangement on the exportation of pipes and tubes to the United States were laid down by Regulation No 60/85 and the tables in question constitute a natural complement to Article 3 ( 1 ) thereof for the implementation of which they are essential . For that reason they may be regarded as being in the nature of a regulation in the same way as the body of measures within which they are included and of which they are an essential component . In taking that view, I am merely following the guidance provided by the Court in various judgments in which it attaches considerable significance, for purposes of interpretation, to the legislative context of the provisions whose nature is under consideration . ( 12 )
54 . The applicants themselves ultimately had to admit for the purposes of their argument, either expressly or by implication, during the written procedure or at the hearing, that Regulation No 2355/85 and Regulation No 60/85 form part of the same legislative whole . When confronted with the apparent contradiction between them, they finally accepted the view that Regulation No 2355/85 was of a composite nature, applicable partly to the past and partly to the future .
55 . It must be recognized that this will make examination of the problem more complicated .
56 . The number and identity of the undertakings exporting OCTG tubes to the United States in the first seven months of 1985 were definitively established and could have been ascertained by the Council .
57 . Therefore the same reasoning could be applied to those undertakings as that which formed the basis of the Court' s judgment in Alusuisse Italia, ( 13 ) by recognizing, so far as concerns them, that the measure in question was in the nature not of a legislative measure but of an individual decision or a set of individual decisions .
58 . I shall return to that question in connection with the requirement of individual concern .
59 . I must say, however, even at this stage, that I do not consider it necessary to deny the legislative character of Regulation No 2355/85, even as regards the past .
60 . That is so because that regulation was to remain in force for almost another 17 months and the period to which the percentages laid down in the regulation refer and over which the issue of licences was to be spread was not due to expire for some considerable time .
61 . In those circumstances, it is even questionable whether this is a case of genuine retroactivity . The situation is similar to that in which a tax measure is adopted by altering, midway through the year, either the rate of tax or the relief available in respect of any income received during that year .
62 . Even so, it may be argued that, as regards the past, the manner in which the regulation applies to the applicants differs from that in which it will affect, in the future, any undertakings already in existence or yet to be set up .
63 . However, as the Court has already held, ( 14 ) "the fact that a general provision does not have the same effect on all those subject to it is not in itself capable of depriving it of its character of a regulation ".
64 . It must be acknowledged, however, that the position is not absolutely clear in this case and that it has not been established beyond doubt, in spite of everything, that the provisions under consideration are in the nature of a regulation .
65 . The Council itself shares those doubts, as is clear from its reply, in acknowledging that Annex III might be regarded as an autonomous provision and the allocation among the Member States which that provision entails might be regarded as a decision addressed to certain specific undertakings and adopted in the form of a regulation .
66 . However, the Council maintains that, if that is the case, the real addressees are the Member States and not the applicants .
67 . In the light of the considerations which I have put forward concerning the nature of the provisions in question, I do not believe that it is necessary to see the problem in those terms .
68 . Should a different view be taken, the measure in question would be a "decision addressed to another person", adopted in the form of a regulation, to which the second paragraph of Article 173 of the EEC Treaty would, in my view, be applicable, thereby enabling any natural or legal person to whom that decision is of direct and individual concern to bring an action .
69 . Undeniably, the Court has already held ( 15 ) that the expression "a decision addressed to another person" must be deemed to include the Member States in the same way as any other person governed by private law .
70 . It remains to be seen, therefore, whether the two remaining requirements for admissibility laid down by the second paragraph of Article 173, namely that the decision, although addressed to another person, is of direct and individual concern to the applicants, are satisfied .
VII - 71 . I shall begin by considering whether or not the contested measure is of individual concern to the applicants .
72 . In Plaumann ( 16 ) the Court defined the general concept of individual concern in terms that have been consistently reaffirmed in subsequent decisions ( 17 ): "Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them, or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the person addressed ".
73 . As we have seen, the applicants take the view that the Council measure at issue is of individual concern to them inasmuch as it represents ultimately a collective decision addressed to six undertakings whose names were known from the outset and it is not a measure couched in general and abstract terms which, in accordance with objective criteria, restricts exports effected by all the undertakings operating in a certain sector within the Community .
74 . In my view, that argument cannot stand on its own .
75 . As we know, Regulation No 2355/85 was adopted on 6 August 1985 and was to remain in force for a period ( subsequently extended ) that was due to expire on 31 December 1986 .
76 . In those circumstances, the regulation in question applies not only to existing undertakings engaged in exportation at the time of its adoption, but also to all undertakings which might be set up in the future and, in any event, might apply for the issue of export licences .
77 . Hence the Council is right in taking the view that nothing could be considered definitive nor could any natural or legal person be regarded as being individually distinguished in the same way as the addressee of the measure .
78 . The applicants contend that new producers would encounter difficulties in commencing operations and in gaining access to that market, which rules out the possibility of new undertakings entering the German market .
79 . However, Regulation No 2355/85 applies to all specialized producers throughout the Community and its nature is not affected by the unlikely possibility of new German undertakings being set up and engaging in the production and export of OCTG tubes .
80 . Moreover, the aim of that regulation was not to restrict production of OCTG tubes but merely to curtail exports thereof to the United States as opposed to other destinations . ( 18 )
81 . At the hearing the applicants finally conceded, as we have seen, that Regulation No 2355/85 is of a general and abstract nature as regards the future .
82 . However, they persisted in their view that, as regards the period prior to its publication, the regulation could not be regarded as anything other than a decision concerning the six undertakings in question .
83 . Is that view tenable?
84 . Support for that view may be found in a line of decisions in which the Court has based the admissibility of an application in particular on the fact that the contested measure applies to past or present events, in such a way that the number and identity of the addressee(s ) are firmly established . ( 19 )
85 . Are we therefore to consider that the requirement of individual concern to the applicants was satisfied as regards the period between 1 January 1985 and 20 August 1985, so that at least that aspect of the substance of the case can be considered, notwithstanding the fact that the alternative claim expressly put forward by the applicants in their reply was made out of time?
86 . I doubt whether that is the best solution .
87 . I would refer to the view I expressed earlier that the contested measure was in the nature of a regulation, even as regards the period prior to its publication .
88 . In addition, the fact that Regulation No 2355/85 was stated to be applicable from a date prior to its publication is an objectively unavoidable practical consequence of the belated agreement reached by the Council concerning OCTG tubes and that consequence naturally arises as from 1 January 1985, the date of the entry into force of the arrangement with the United States, which had already determined the duration of the period fixed in Article 1 of Regulation No 60/85 as regards the export of tubes other than OCTG tubes .
89 . Hence the "retroactivity" of Regulation No 2355/85 seems to be objectively unconnected with the existence of a given number of undertakings which had applied for and ( provisionally ) obtained export licences for the United States .
90 . Moreover, the Commission decided to authorize the Member States to issue provisional licences in the first two quarters of 1985 because it wished to prevent the United States from imposing a ban on Community exports .
91 . The situation of undertakings which, like the applicants, obtained those licences is not considered in the preamble to Regulation No 2355/85 and, although it was taken into account as a factor influencing its adoption, it was regarded at most as just one of the various factors relating to the state of the market before and after 1 January 1985 .
92 . Moreover, I believe that the emphasis which I have laid on those matters is in conformity with three criteria which may be elicited from previous decisions of the Court :
93 . the importance attached to the aim of a measure with a view to distinguishing a provision of general application from an individual decision; ( 20 )
94 . the purpose attributed to the second paragraph of Article 173, namely to prevent individuals from being deprived of their means of redress against a decision which is of direct and individual concern to them but which appears to be disguised in the form of a regulation ( or hidden behind a decision addressed to another person );
95 . the reference to a misuse of powers as a concept involving recognition of the fact that a provision which appears to be of general concern is in fact of individual concern . ( 21 )
96 . Hence there is a further element, namely a subjective relationship or a causal connection between the Community institution' s awareness of situations in which a measure is of individual concern to a person and its adoption; that element exists in certain cases decided by the Court ( to which reference has already been made in legal literature ), though not in this case .
97 . In those circumstances, it does not seem possible to state that, even as regards the period in which it was in force "retroactively", Regulation No 2355/85 was in reality a decision affecting the applicants just as if it had been addressed to them - particularly since the national quota allocated to Germany by the regulation was, in the result, higher than the quota proposed by the Commission, being raised from 3.77 to 4.38% of United States apparent consumption, and therefore it does not appear to have led to any reduction in the number of licences already issued to the applicants .
98 . However, since that is a controversial point, I propose none the less to consider the requirement of direct concern to the applicants, which is also laid down in the second paragraph of Article 173 of the Treaty .
VIII - 99 . In order to establish whether that requirement is satisfied it is essential to determine whether the contested Community measure is directly applicable, that is to say whether it automatically takes effect in relation to individuals or whether action must be taken by another entity which enjoys a discretion - namely the Member States - before it can take effect . ( 22 )
100 . At first sight, that would appear to be the case here . According to Article 3 of Regulation No 60/85, it is the Commission which allocates amongst the Member States the Community export quota for pipes and tubes fixed in Article 2 . For that purpose, however, the Commission confines itself to converting into quantities the percentages indicated in the tables set out in Annex III, as amended by Regulation No 2355/85 . It is a purely arithmetical calculation, the results can be checked objectively, and the Commission has no discretion whatsoever in the matter .
101 . Subsequently, according to the third recital in the preamble to Regulation No 60/85 and Article 5 thereof, it is for the Member States to share out the national quotas amongst the export undertakings and, consequently, to issue the requisite licences . With that end in view, Article 5 confers a discretion on the Member States .
102 . It is true that, as the third recital in the preamble states, the quota must be allocated in accordance with objective criteria, which are laid down in Article 5 ( 2 ).
103 . However, they are classification criteria and not strict parameters whose application must automatically lead to a single solution as the only possible one . Hence it is quite clear that in taking action the Member States enjoy a discretion in various areas which can be identified in certain subparagraphs of Article 5 ( 2 ) of Regulation No 60/85 . It can be identified in the reference to "traditional export patterns", which involves a number of possible choices, for instance as regards the reference period, in the need to take account of the situation of "new producers of pipes and tubes", and in the concern to ensure "optimum use and administration of the export possibilities" and "any new possibilities provided for ... by this regulation ".
104 . However, the applicants seek to demonstrate the existence of a direct interest on their part by alleging that the imposition of a national quota has a direct effect on their export possibilities inasmuch as it immediately restricts their sales to the United States . Any additional reduction in that quota, they argue, would necessarily lead to a further reduction in the selling rights of the various German undertakings .
105 . In their view, that consequence would follow automatically even if a discretion were conferred on national governments for the purpose of sharing out their quotas . That discretion would always have to be exercised in accordance with the criteria laid down in Article 5 ( 2 ) of Regulation No 60/85 and in compliance with the principle of equal treatment, which would rule out the possibility, in the event of a reduction of the national quota and if other factors remained constant, of placing a given undertaking at an advantage by continuing to allot to it, to the detriment of its competitors, the same quota which it would have obtained in the absence of such a reduction ( an allegedly unlawful reduction ) in the national quota . Hence a reduction by the Council in the quota allocated to Germany must, as an automatic consequence, necessarily have an adverse effect on the applicants' export quota .
106 . In my view that consideration does not provide a sufficient reason for regarding the contested measure as being of direct concern to the applicants, for the purposes of the second paragraph of Article 173 . I would recall that, as the Court held in its judgment in Eridania, ( 23 ) "the mere fact that a measure may exercise an influence on the competitive relationships existing on the market in question cannot suffice to allow any trader in any competitive relationship whatever with the addressee of the measure to be regarded as directly and individually concerned by that measure" and that "the existence of specific circumstances" is necessary in addition to the contention that the measure affects the applicant' s position on the market .
107 . Mutatis mutandis the same considerations are applicable in this case .
108 . It must be said, moreover, that the applicants subtly modified their argument in the reply . In their application, they denied that the Member States had a discretion . As they were under an obligation to share out the national quota, they had a duty to do so in accordance with "objective criteria ... which are listed exhaustively" and the applicants relied on that consideration in support of the view that "accordingly the Member States have no discretion in sharing out the quotas ".
109 . The applicants' "revised" argument is superficially more impressive than it was at the outset .
110 . However, I am not swayed by it .
111 . A decision by a Member State is needed for the legal interests of the undertakings concerned to be affected . An analogy may therefore be drawn to some extent with a situation in which a Member State is granted authorization to open a tariff quota .
112 . In the latter case, authorization granted to the Member States normally involves ( as was pointed out by the Court in the Alcan judgment at p . 394 ) recognition of a mere power, whilst in this case the question arises whether the Member States are free to choose whether or not to allocate the quotas or whether they are under a duty to do so .
113 . That, at least, is the applicants' point of view .
114 . In my view, which is consistent with the interpretation given by the Council in the reply, that point of view is not necessarily correct .
115 . By providing in Article 4 of Regulation No 60/85 for the transfer to a Community reserve of the fraction of the quota for which no licences were issued, the Commission seems to assume that the Member States may decide not to issue licences in respect of the entire national quota .
116 . It might be argued that Article 4 is intended only to ensure that the best use is made of the system when the export capacity of the undertakings of each State proves to be insufficient to fill the national quota, a matter which is not in itself within the discretion of the Member States .
117 . Clearly, however, the aforesaid provision does not distinguish between the various possible reasons for withholding licences and refers merely to the "fraction of the allocation for which they did not issue licences", without indicating that certain reasons are lawful and others are unlawful .
118 . That interpretation is supported by the fact that unissued licences are transferred to the Community reserve each quarter, with the result that it is up to the Member States ( which are instructed by Article 5 of the regulation to spread exports over the whole year ) to avoid that consequence by judiciously timing the issue of licences .
119 . In addition, the third subparagraph of Article 5 ( 1 ) provides that, within broad limits, "Member States may ... issue further licences in 1985 and 1986 respectively, in respect of the unused part of licences issued which have been returned to their competent authorities in 1985 or in 1986 ". The wording used by the legislature (" may issue ") clearly indicates that the Member States are empowered not to issue new licences to replace those which have not been used .
120 . The correctness of that view, which I share with the Council, can be verified by analogy with the Alcan judgment, ( 24 ) if we consider the hypothesis of the contested measure being declared void . In accordance with the Court' s judgment, the Council would amend the annulled regulation by adopting a new scale for allocation on the basis of which the Commission would calculate the quantities making up the national quotas . Those quotas would be shared out by the Member States in accordance with Article 5 of Regulation No 60/85 .
121 . In those circumstances, there is no guarantee that the annulment of the contested measure would give the applicants the desired advantage and place them in the position to which they consider themselves entitled . The aim they pursue could be attained only if the Member State concerned shared out the national quota and issued the corresponding export licences .
122 . Those licences could place the applicants in a less advantageous position than that which would result from the application of the criteria for which they contend . In that case, the only course of action open to them would be to challenge the decision of the national authorities in the national courts .
123 . In my view, therefore, the disputed measure does not have direct effect in relation to individuals and may not for that reason be contested before the Court of Justice .
124 . Should the contested measure not be considered a true regulation, the inescapable conclusion will be that it is a decision addressed to the Member States which is of direct and individual concern to the applicants, for the purposes of the second paragraph of Article 173 .
125 . That conclusion is not altered by the fact that the discretion conferred on the Member States for the purpose of sharing out the national quotas is subject to certain limitations . Any discretionary power is restricted, whether by the applicable general principles or by the criteria specifically laid down by the legislature . Article 5 merely lays down criteria or parameters governing the exercise of the discretion, but does not abolish it altogether .
126 . At the hearing, moreover, the applicants again shifted their ground and acknowledged that the Member States enjoy and must enjoy a degree of discretion, but that the Council did not restrict the exercise thereof to a sufficient extent since it did not provide the Member States with sufficiently objective criteria for their decisions .
127 . It cannot be stated, either simultaneously or in succession, first that the Member States merely apply the objective and restrictive criteria listed in Article 5 and secondly that those criteria are not sufficiently objective or restrictive, without one of those statements being incorrect .
128 . The conclusion which I have reached certainly seems to me to be applicable to the period following the adoption of the contested regulation and I do not believe that it should be any different as regards the period in respect of which the regulation has retroactive effect .
129 . The provisional licences which the export undertakings were able to use during that period, on the basis of the Commission' s authorization and with reference to the percentages specified in them, were issued by the competent authorities of the Member States and were, of course, governed by the criteria laid down in Article 5 of Regulation No 60/85, which was already in force .
130 . The Commission merely fixed in advance, on a provisional basis, the percentages which it was the responsibility of the Council to fix definitively .
131 . The present action is directed not against that provisional Commission decision but against Regulation No 2355/85 which, even as regards the past, did not abolish the discretion exercised by the Member States but, at most, required it to be exercised in a different manner - or did not even go as far as that, as is clear from what I said in connection with the requirement of individual concern .
132 . One thing is certain in my view : the nature of the Member States' action ( always in connection with Regulation No 60/85 ) did not vary according to whether it was taken before or after the date on which Regulation No 2355/85 was adopted .
IX - 133 . In the light of the foregoing considerations, I have come to the conclusion that the application for the annulment of Regulation No 2355/85 is inadmissible and, consequently, I suggest that the Court should dismiss it as such .
134 . Hence I propose to consider the substance of the case only as an alternative proposition .
X - 135 . The applicants rely on two sets of submissions in support of their application .
136 . In the first place, they allege that Regulation No 2355/85 infringes essential procedural requirements as it does not contain a statement of reasons regarding the allocation of national quotas, contrary to Article 190 of the EEC Treaty .
137 . In the second place, the applicants allege a breach of the general principles of non-discrimination, proportionality and equal treatment, amounting to a misuse of powers .
138 . I propose to deal briefly with each of those submissions .
XI - 139 . With regard to the first submission, I need not add anything to the considerations which I put forward in the first part of my Opinion in support of the view that the statement of reasons in Regulation No 60/85 is also valid for Regulation No 2355/85 .
140 . The various reasons on which the provisions concerned are based are to be found in the recitals in the preamble to Regulation No 60/85 : the voluntary-restraint arrangement concluded with the United States which forms the "background" to the regulation ( first recital ); the reference to the practical reasons for allocating among the Member States the quantities allotted to the Community as a whole, in keeping with the Community nature of the limits imposed ( third and fourth recitals ); and the basic criterion used in determining the allocation, namely that the latter "should take account of traditional trade patterns" ( fifth recital ).
141 . As the Court has consistently held, ( 25 ) the preamble to a regulation may be confined to explaining "the nature of the measure in question" by indicating the "general situation" which led to its adoption and the "general objectives" which it is intended to achieve, but it is not required to set out the numerous and complex facts on the basis of which the regulation was adopted or to provide a complete evaluation of those facts or, in particular, of all the technical choices which it envisages "provided that those matters fall within the general scheme of the whole of which they form part ".
142 . A fortiori, that would also appear to be the case where a decision is addressed to Member States which were involved in its preparation and adoption .
143 . The Court has also expressly accepted a statement of reasons which refers to a previous measure . ( 26 )
144 . The argument to the effect that there is a duty to provide a statement of reasons under the quota system established pursuant to Article 58 of the ECSC Treaty is untenable, since that provision is concerned with production quotas and with a more extensive and more far-reaching intervention mechanism involving the exercise of a different set of powers by the competent Community institution .
XII - 145 . The applicants also contend that the allocation of the Community export quota among the Member States by Regulation No 2355/85 reduced the percentage allotted to the Federal Republic of Germany without justification, thereby placing the applicants at a disadvantage in relation to their competitors in other Member States .
146 . In conformity with the arrangement in the form of an exchange of letters with the United States, concluded in January 1985, Regulation No 60/85 fixed the Community export quota for steel pipes and tubes at 7.6% of United States apparent consumption and the export sub-quota for OCTG tubes at 10% of apparent consumption in that country .
147 . The sub-quota for OCTG tubes was allocated among the Member States by Regulation No 2355/85, which allotted 43.8% of the total quantity to the Federal Republic of Germany .
148 . The applicants maintain that that percentage would have been higher if, with a view to establishing the scale for allocation on the basis of traditional export patterns, the Council had adopted not the 1979-83 reference period but rather the 1979-81 period adopted in the exchange of letters of 21 October 1982 .
149 . The applicants contend that in 1983 there was a sharp increase in the volume of exports from other Member States, whereas German producers had maintained their share of the United States market in OCTG tubes at the same level as in 1979-81 .
150 . As a result of that conduct on the part of the other Community producers, the Community' s share of apparent consumption on the United States market in OCTG tubes rose to almost 20% in contrast to the 8.76% share which it had held in the 1979-81 period, which prompted the iron and steel industry in the United States to react and the United States Congress to adopt in October 1984 the Trade and Tariff Act imposing an absolute ban on imports of steel pipes and tubes from the Community .
151 . During the 1979-81 period, the German undertakings' share of apparent consumption of OCTG tubes in the United States amounted to 4.44%, corresponding to 50.96% of the total Community quota .
152 . The applicants consider that the allocation of the quota under Regulation No 2355/85 should reflect their relative position on the market, having regard to the principles of the "freezing of market shares" and of neutrality of competition elicited from the system established by the ECSC Treaty and the Court' s decisions thereon, and from certain provisions of the EEC Treaty .
153 . The applicants maintain that, in view of the increase in the Community quota from 8.76 to 10% of apparent consumption of OCTG tubes in the United States, the German manufacturers' share of the quota should have risen from 4.44 to 5.07% ( that is to say, in both cases, corresponding to 50.69% of Community exports ), instead of the 4.38% share allotted to them by Regulation No 2355/85 .
154 . In addition, according to the applicants, a part of Germany' s quota for OCTG tubes is reserved for one undertaking, namely Hoesch AG, in order to enable it to supply its Texan subsidiary, HTP . The quantity has been fixed at 10 000 tonnes, to be deducted from the 4.38% share of the quota reserved for German producers, with the result that their real share is reduced to 3.95 %.
155 . Moreover, they maintain that the Council has not always adhered to its basic criterion and has departed to a greater or lesser extent from the figures which would have been applicable if the 1979-83 reference period had been adopted .
156 . In my view, the applicants' argument is not sufficiently strong to substantiate their claim .
157 . In the first place, it seems to me that the Council was under no obligation to take 1979-81 as the reference period for the calculation of the national quotas .
158 . The Commission justified the adoption of 1979-83 as the reference period, which it proposed and the Council accepted, on the ground that the length of that period was sufficient to reflect traditional export patterns .
159 . Naturally, that period could not be taken into account in 1982 when the first voluntary-restraint arrangement was concluded and an exchange of letters took place concerning trade in steel tubes .
160 . It is clear from the text of those letters that the exchange of letters did not constitute an arrangement setting quantitative limits on exports of the products in question to the United States, giving rise to corresponding obligations on the part of the undertakings concerned . Nor was it an integral part of the arrangement relating to steel, since the two documents were not published together .
161 . Instead, it was a document designed to allay the United States' concern by setting out the Communities' forecasts concerning market trends and introducing a consultation procedure to be followed if there should be an increase in Community exports that was likely to cause disturbances in trade between the two parties .
162 . As for the arrangement concluded in January 1985 concerning the export of steel pipes and tubes to the United States, it does not specify any reference period which the Council had to comply with in allocating the quota among the Member States, with the result that the choice of 1979-83 as the reference period in no way constitutes a breach of an international agreement . In any event, the applicants have furnished no proof that 1979-81 was taken as the reference period for the arrangement . For its part, the Council has stated that the negotiating brief which it transmitted to the Commission does not contain any indications in that regard and that the results obtained concerning the sub-quota for OCTG tubes corresponded to the guidelines laid down in that brief .
163 . Moreover, it is difficult to believe that the volume of Community exports in 1972 and 1973 ( and even in 1974 in so far as any figures were available ) was neither known nor taken into account in fixing the Community quota of 7.6% and the sub-quota for OCTG tubes of 10%, since it was the volume of those exports which led to the need for negotiations .
164 . It is therefore quite understandable that the Community should have secured an increase of its quotas for the American market for 1979-81 .
165 . In choosing 1979-83 as the reference period, the Council exercised the discretion conferred upon it under the common commercial policy . Moreover, Regulations No 60/85 and No 2355/85, being measures which are essential for the implementation of the common commercial policy, and in particular the export policy, were adopted under Article 113 of the EEC Treaty .
166 . It is true that the Council adjusted "on grounds of fairness" the figures resulting from an allocation of the quotas based exclusively on traditional patterns of trade established by reference to 1979-83 .
167 . That was almost inevitable in a field where the reconciliation of different interests is an extremely delicate matter; and downward adjustments should not be regarded as contravening any higher principles of Community law, such as the principles of proportionality or non-discrimination .
168 . Admittedly, there was a decrease in the German undertakings' percentage share of Community exports, which fell from 50.69% in 1979-81 to 43.8 %.
169 . Hence there was a reduction of 6.9 percentage points ( representing a 13.6% decrease ) and not of 11.9 percentage points as the applicants contend on the basis of the table set out in their application . The calculation of Germany' s quota cannot exclude any sub-quota which may have been reserved for a particular undertaking . The regulation makes no reference to it and it can only have come into existence, as a result of a political compromise, when the national quota was shared out by Germany; consequently, it can be challenged only in the national courts .
170 . In any event, the downward adjustment of Germany' s share of apparent consumption in the United States in 1979-81 - from 4.44 to 4.38% - was only 0.06 %.
171 . As for the other countries, the table produced by the applicants shows a maximum upward adjustment of 4.2% - the percentage by which Italy increased its share of Community exports in 1979-81 .
172 . In any event, whatever the significance of those adjustments, I believe that they could be annulled only if they were arbitrary, which is not the case here because they were based on an objective reference period ( export patterns in 1979-83 ) selected by the competent Community institution in the exercise of its discretion and not arbitrarily .
XIII - 173 . In the light of the foregoing considerations, I consider that this application must be dismissed as inadmissible .
174 . Should the Court take a different view, I suggest that it dismiss the application as unfounded .
175 . In accordance with Article 69 ( 2 ) of the Rules of Procedure, the applicants should be ordered to pay the costs since they have failed in their submissions .
( 5 ) See, for instance, the judgment of 14 December 1962 in Joined Cases 16 and 17/62 Confédération nationale des producteurs de fruits et légumes v Council (( 1962 )) ECR 471 at p . 478 . See also the Opinion of Mr Advocate General Lagrange in that case, p . 481 at p . 484 et seq ., and of Mr Advocate General Warner in Case 113/77 Toyo Bearing Company v Council (( 1979 )) ECR 1212 at p . 1243 and in Joined Cases 789 and 790/79 Calpak v Commission (( 1980 )) ECR 1963 at pp . 1970 and 1971 .
( 6 ) See the judgment of 13 March 1968 in Case 30/67 Imolese v Council (( 1968 )) ECR 115 at p . 121; the judgment of 11 July 1968 in Case 6/68 Zuckerfabrik Watenstedt v Council (( 1968 )) ECR 409 at p . 414; the judgments of 16 April 1970 in Case 63/69 Compagnie française commerciale v Commission (( 1970 )) ECR 205 at p . 211 and in Case 64/69 Compagnie française commerciale v Commission (( 1970 )) ECR 221 at p . 227; and the judgment of 20 November 1979 in Case 162/78 Wagner v Commission (( 1979 )) ECR 3467 at p . 3487 .
( 7 ) See, for instance, the judgment of 1 April 1965 in Case 40/65 Sgarlata v Commission (( 1965 )) ECR 215 at p . 226; and the judgment of 16 March 1978 in Case 123/77 UNICME v Council (( 1978 )) ECR 845 at pp . 851 to 853 .
( 8 ) See the judgment of 5 May 1977 in Case 101/76 Koninklijke Scholten Honig v Council and Commission (( 1977 )) ECR 797 at p . 806; the judgment of 20 November 1979 in Case 162/78 Wagner v Commission (( 1979 )) ECR 3467 at pp . 3486 and 3487; and the judgment of 17 June 1980 in Joined Cases 789 and 790/79 Calpak v Commission (( 1980 )) ECR 1949 at p . 1961 .
( 17 ) See, for instance, the judgment of 2 July 1964 in Case 1/64 Glucoseries réunies v Commission (( 1964 )) ECR 413 at p . 417; and the judgments in Bock and CAM, cited in footnote 19 .
( 18 ) See the judgment of 17 January 1985 in Case 11/82 Piraiki-Patraiki v Commission (( 1985 )) ECR 207 at pp . 242 and 243 .
( 19 ) See the judgment of 1 July 1965 in Joined Cases 106 and 107/63 Toepfer v Commission (( 1965 )) ECR 405 at p . 411; judgment of 13 May 1971 in Joined Cases 41 to 44/70 International Fruit Company v Commission (( 1971 )) ECR 411 at pp . 422 and 423; judgment of 23 November 1971 in Case 62/70 Bock v Commission (( 1971 )) ECR 897 at p . 909; judgment of 18 November 1975 in Case 100/74 CAM v Commission (( 1975 )) ECR 1393 at pp . 1402 and 1403; and judgment of 6 March 1979 in Case 92/78 Simmenthal v Commission (( 1979 )) ECR 777 at pp . 797 and 798 .
( 21 ) See the judgments of 16 April 1970 in Case 63/69 Compagnie française commerciale (( 1970 )) ECR 205 at p . 211 and in Case 64/69 Compagnie française commerciale (( 1970 )) ECR 221 at p . 227 .
( 22 ) See, for instance, the judgment of 1 July 1965 in Joined Cases 106 and 107/63 Toepfer v Commission (( 1965 )) ECR 405 at p . 411; judgment of 10 December 1969 in Joined Cases 10 and 18/68 Eridania v Commission (( 1969 )) ECR 459 at pp . 480-483; judgment of 16 June 1970 in Case 69/69 Alcan v Commission (( 1970 )) ECR 385 at p . 394; judgment of 13 May 1971 in Joined Cases 41 to 44/70 International Fruit Company v
Commission (( 1971 )) ECR 411 at pp . 422 and 423; judgment of 16 March 1978 in Case 123/77 UNICME (( 1978 )) ECR 845 at p . 852 . See also the pioneering Opinions of Mr Advocate General Roemer in Case 25/62 Plaumann (( 1963 )) ECR 95 and of Mr Advocate General Gand in Case 38/64 Getreide - Import
( 23 ) Judgment of 10 December 1969 in Joined Cases 10 and 18/68 Eridania (( 1969 )) ECR 459 at p . 481 .
( 24 ) Judgment of 16 June 1970 in Case 69/69 Alcan v Commission (( 1970 )) ECR 385 at p . 394 .
( 25 ) Judgment of 13 March 1968 in Case 5/67 Beus v Hauptzollamt Muenchen (( 1968 )) ECR 83 at p . 95; judgment of 20 June 1973 in Case 80/72 Koninklijke Lassiefabrieken v Hoofproduktschap voor Akkerbouwprodukten (( 1973 )) ECR 635 at p . 652; judgment of 30 November 1978 in Case 87/78 Welding v Hauptzollamt Hamburg (( 1978 )) ECR 2457 at p . 2468; judgment of 12 July 1979 in Case 166/78 Italy v Council (( 1979 )) ECR 2575 at p . 2597; judgment of 28 October 1982 in Joined Cases 292 and 293/81 Lion et Loiret v FIRS (( 1982 )) ECR 3887 at pp . 3909 and 3910; and judgment of 22 January 1986 in Case 250/84 Eridania (( 1986 )) ECR 117 at p . 146, paragraphs 37 to 39 of the decision .
( 26 ) Judgment of 1 December 1965 in Case 16/65 Schwarze (( 1965 )) ECR 877 at p . 888 .