61981C0250
OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN
DELIVERED ON 15 JULY 1982
My Lords,
The applicants are an association of Greek canners and two Greek companies engaged in the manufacture of tomato concentrate. They ask the Court to annul Commission Regulation No 1962/81 of 10 July 1981 (OJ 1981, L 192, p. 11) in so far as it fixes for the 1981-1982 marketing year the coefficients to be applied in Greece to production aid for tomato concentrate. The Commission raises a preliminary objection to the admissibility of the application and it is with that objection alone that the Court is concerned at this stage.
A system of production aid for tomato concentrate, among other products, is established by Articles 2 (a), 3 (a), 3 (b) and 3 (c) of Council Regulation No 516/77 of 14 March 1977 (OJ 1977, L 73, p. 1) as amended by Council Regulation No 1152/78 of 30 May 1978 (OJ 1978, L 144, p. 1). The system is concerned with contracts under which a processor engages with the producer for the purchase of specified quantities of tomatoes, over a specified period at an agreed price. For deliveries made under such contracts a “minimum price”, which processors must pay to producers, calculated as laid down in paragraph 3 of Article 3 (a), is fixed before the beginning of each marketing year. Under the system set up, the processor receives production aid to make up the difference between the prices of Community products and those of products of nonmember countries. The prices of Community products are established having regard to the minimum price and the processing costs, disregarding those undertakings with the highest costs.
For the 1981-1982 marketing year, the minimum price to be paid to producers of tomatoes intended for the manufacture of tomato concentrate and the production aid to be paid to processors of tomato concentrates were fixed by Article 1 of Commission Regulation No 1963/81 of 10 July 1981 (OJ 1981, L 192, p. 16). A lower price was fixed for Greece than for other Member States. That Article also specified that the production aid referred to in Article 3 (a) of Regulation No 516/77 should be for tomato concentrate of a specified quality (or percentage of dry extract content) and a specified presentation (namely immediate packing of 1 5 kilogrammes or more).
Commission Regulation (EEC) No 1962/81 of 10 July 1981 (OJ 1981, L 192, p. 13) recited that “for tomato concentrates, the use of coefficients to be applied to the aid for a product with defined commercial characteristics had shown the need, in the case of the lowest and the highest concentrations, to fix coefficients which are more closely related to the dry extract content of the products concerned”, and that “in applying the ... coefficients ... a maximum ratio should be laid down between the net weight and the net weight with immediate packaging according to the various forms of packaging”.
The amount of production aid for other qualities and sizes of packaging was to be adjusted by a coefficient set out in a table in Annex I to Regulation No 1962/81. Both regulations were stated to be binding in their entirety and directly applicable in all Member States.
In their application to the Court all the applicants complain that Regulation No 1962/81 is illegal or defective in that it does not take into account the processing costs in respect of small packages weighing less than 1-5 kilogrammes. Nor does it have proper regard to the difference between the processing costs incurred in Greece and those incurred in other Member States in respect of small packages. They maintain that the failure to do this constitutes a breach of Article 103 of the Act concerning the accession of Greece to the European Communities (OJ 1979, L 291, p. 17). That Article provides that during the first six marketing years following accession special rules are to be applied in calculating the rates of production aid for Greek products processed from fruit and vegetables. The amount of aid is to be fixed in such fashion as to compensate the difference between the level of prices of products of third countries and the level of prices of Greek products established taking into account the minimum price, fixed as provided, and the processing costs obtaining in Greece, without taking into consideration those undertakings which have the highest costs.
The applicants thus maintain that it is not sufficient to take account of Greek processing costs only once (in establishing the rate for tomato concentrates of standard quality and presentation). The Commission should have taken account of Greek processing costs also in drawing up the table of coefficients: in particular, it should have taken into account costs for presentation of tomato concentrate in packages smaller than the standard size. The second and third applicants claim to be processors in Greece who are affected by this failure on the part of the Commission while the first states that it is a trade association seeking to protect the interests of Greek canners as a whole.
In the application it was not sought to annul Regulation No 1963/81. At the hearing counsel for the applicants appeared at times to be asking the Court to annul this regulation also. In my view it was not open to him at that stage to seek to do so. His alternative claim is that if Regulation No 1962/81 is annulled, since it is inextricably linked with Regulation No 1963/81, the latter in effect falls to the ground also. He thus bases his attack on what is in effect the consequential rather than the primary regulation.
For this application to be admissible Regulation No 1962/81 must be categorized as a decision, which although in the form of a regulation, is of direct and individual concern to the applicants.
On the face of it this is a general legislative provision fixing the coefficients for all tomato paste processed in the Community. Ex facie it seems to be clearly a regulation rather than a “decision” in any real sense. Accepting, as is contemplated, that a decision may be “wrapped up” in the form of a regulation, can it be said here that what is laid down can be of “direct and individual concern” to the applicants?
So far as the two canning companies are concerned, the provisions of the “regulation” are clearly of direct concern since they affect the business and rights of those two companies.
Can it be said to be of “individual concern” to these two companies? This phrase has been considered in a number of cases which have come before the Court. As I read those cases the question is answered by considering whether in any real sense it can be said that the “decision” relates to a specific individual or a specific group of individuals which exist and can be identified and, so far as a group is concerned, which is limited at the time the regulation comes into force. Such a group must (in a real sense) be a specific group which is differentiated from the generality of persons or even of traders in a particular field. The wider the category covered the more likely the instrument is to be a regulation, the less likely to be a decision of “individual” concern, even though the group is “directly” concerned as a whole. On the other hand, where the individual's or group's legal position is affected “because of a factual situation which differentiates them from all other persons and distinguishes them individually”, it is a decision (see Case 100/74 CAM. v Commission [1975] ECR 1393 at p. 1403 and at p. 1411; and also Joined Cases 103 to 109/78 Société des Usines de Beauport v Council [1979] ECR 17 at p. 30). The test is analogous to that adopted in respect of a decision addressed to one person which is said to be of direct and individual concern to another (see e.g. Case 62/70 Bock v Commission [1971] ECR 897 at p. 908; Case 88/76 Société pour l'Exportation des Sucres SA v Commission [1977] ECR 709 at p. 725; Case 40/64 Sgarlala v Commission [1965] ECR 215 at p. 226).
A regulation which applies to all traders, or to all traders in a particular field, throughout the Community does not, it seems to me, in the ordinary way, constitute a decision which is of individual concern for the purposes of Article 173 of the Treaty (Case 30/67 Molitoria Imolese v Council [1968] ECR 115 at p. 121).
In the present case all traders in this field are affected by the coefficients laid down even though different rates are fixed in Regulation No 1963/81 for Greece than for other Member States. Moreover, the present regulation does not deal only with a specific class limited to those in existence at the time it was made. It would apply equally to anyone who began business in producing or processing tomatoes in the ways specified during the relevant period after the regulation came into force. That is true for the Community as a whole or for Greek traders seen as a separate group. Even the fact that it may be possible at any time to ascertain the number and identity of producers does not seem to me to convert this general provision into a decision of individual concern within the meaning of Article 173.
Accordingly the claim of the two canning companies is in my view inadmissible.
The first applicant does not identify precisely how it is affected by the contested regulation, save by asserting that it is engaged in “the protection of the interests of the Greek canners”. The Court has not been told how many Greek canners are represented by the first applicant. In a previous decision, however, this Court has rejected the principle that an association, in its capacity as the representative of a category of traders, can be individually concerned by a measure affecting the general interests of that category. As was said in Joined Cases 16 and 17/62 Confédération nationale des producteurs de fruits et légumes and Others v Council [1962] ECR 471 at p. 480“such a principle would result in the grouping, under the heading of a single legal person, of the interests properly attributed to the members of a category, who have been affected as individuals by genuine regulations, and would derogate from the system of the Treaty which allows applications for annulment by private individuals only of decisions which have been addressed to them, or of acts which affect them in a similar manner”. (See also Case 72/74 Union Syndicale v Council [1975] ECR 401 at p. 410). In any event, it has not been argued on behalf of the first applicant that its members are concerned by the contested regulation other than in the manner in which the second and third applicants are concerned by it. Since the contested regulation is not, for the reasons given, of individual concern to the second and third applicants, it is not open to the first applicant to contend that the same regulation is of individual concern to it, on the ground that it represents interested traders.
If Regulation No 1962/81 were annulled, no coefficients could be applied to the aid provided for in Regulation No 1963/81. It does not, however, follow that Regulation No 1963/81 would itself automatically become unlawful. It is not necessary to pursue this point if the claim in respect of Regulation No 1962/81 is, as I consider, inadmissible.
For these reasons I am of the opinion that the application should be declared inadmissible and that the applicants should bear the costs.