OPINION OF MR ADVOCATE GENERAL

VERLOREN VAN THEMAAT

DELIVERED ON 4 FEBRUARY 1982 ( 1 )

Mr President,

Members of the Court,

1. Introduction

1.1. The principal facts and the nature of these proceedings

The applicant, Moksel, is one of the largest exporters of beef and veal in the Community. As it regularly concludes large export contracts with a time for delivery of three to four months, it also regularly avails itself of the possibility offered under Community law of having expon refunds fixed in advance.

On Friday 12 December 1980 the applicant submitted several applications for that purpose to the German intervention agency, the Bundesanstalt für landwirtschaftliche Marktordnung [Federal Office for the Organization of Agricultural Markets], (hereinafter referred to as “the Federal Office”). Under Article 5 (2) of Commission Regulation No 193/75 (Official Journal 1975, L 25, p. 10), such applications must be accompanied by the giving of security, of which the competent agency must be notified before 1300 hours on. the day on which the application is lodged. If the security is given too late, an application cannot be considered. Owing to a delay on the pan of the applicant's bank, notice of the giving of that security was not received by the Federal Office until after 1300 hours on Friday, 12 December. Although a strict application of the aūove-mentioned regulation should imply the rejection of those applications, because of practical considerations the Federal Office treated the applications, which had thus been lodged too late, as applications which had been lodged after 1300 hours and which may be considered in accordance with Article 6 (2) of the abovementioned regulation to have been lodged on the following working day. In this case that was therefore Mondav 15 December 1980.

Under Article 2 (1) of Commission Regulation No 2378/80 (Official journal 1980, L 241, p. 19), advance fixing with the grant of the expon licence may not take place until the fifth working day following the day on which the application is lodged, that is in this case not until Monday 22 December 1980. The regulation stipulates, however, that no special measures should have been taken in the meantime. Such measures were taken by the Commission in Regulation No 3318/80 of 19 December 1980 (Official Journal 1980, L 345, p. 20) which entered into force on 20 December. The advance fixing of expon refunds was suspended by that regulation during the period from 20 to 23 December 1980. That period was extended to 31 December 1980 by Commission Regulation No 3360/80 (Official Journal 1980, L 351, p. 35). The Federal Office thereupon rejected the applicant's applications by a decision of 23 December 1980.

As the reason for that decision the Federal Office referred to Regulation No 3318/80, which was brought to its attention even before publication in the Official Journal by means of an explanation contained in a telex message from the Commission of 19 December 1980. The Federal Office therefore also referred to that telex message.

By its application lodged on 23 February 1981, the applicant seeks a declaration under the second paragraph of Article 173 that the decision contained in that regulation or the telex message from the Commission, or both, are void in so far as they concern the applicant.

By a telex message dated 29 June 1981, received at the Court Registry on the same day, TIAC Handelsmaatschappij, Apeldoorn, applied to be allowed to intervene in support of the applicant. Such intervention was allowed by the Court by an order of 30 September 1981.

In view of the objection of inadmissibility of the application for a declaration of partial nullity made by the Commission on 18 March 1981 and received at the Registry on 27 March 1981, the Court decided by order of 30 September 1981 to assign the case to the Third Chamber, pursuant to Article 95 of the Rules of Procedure, and to open the oral procedure on the objection of inadmissibility.

In view of the significance of the wording of various abovementioned Community measures in the proceedings on admissibility, I shall now first of all review the provisions which are most important for the proper understanding of the case. At this stage of the proceedings, those provisions are particularly important for an answer to the question which is crucial to the admissibility of the application under the second pargraph of Article 173. whether there is in this case 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 applicant.

1.2. The principal provisions

The Moskel case is set against the background of the following Community rules concerning the common organization of the market in beef and veal. The basic rules on this subiect are contained in Regulation (EEC) No 805/68 of the Council (Official Journai. English Special Edition 1968 (I). p. 187). Article 18 of that regulation contains the basic rules on the expon of beef and veal to nonmember countries which are important in this case. Article 18 (4) authorizes the Council to adopt general rules for granting refunds on such export.

The general implementing provisions were adopted in Regulation (EEC) No 885/68 (Official Journal, English Special Edition 1968 (I), p. 237) Article 5 of which, as amended bv Regulation No 1504/76 (Official Journal 1970 L 168, p. 7) is relevant in this case and provides as follows:

“(1) For products referred to in Article 1 the list of products on which an export refund is granted and the amount of that refund shall be fixed at least once every three months.

(2) The amount of the refund shall be that applicable on the day of exportation.

(3) However, it may be decided that the refund shall, upon request, be fixed in advance. In that case, where the applicant so requests when lodging an application for a certificate of advance fixing as provided for in Article 5a, and before 1300 hours, the export refund applicable on the day when he lodges such application shall apply to an expon operation carried out during the period of validity of the said certificate.

(4) Where examination of the market situation shows that there are difficulties due to the application of the provisions concerning the advance fixing of the refund, or that such difficulties may occur, a decision may be taken in accordance with the procedure laid down in Article 27 of Regulation (EEC) No 805/68 to suspend, for the period strictly necessary, the application of those provisions. In cases of extreme urgency, the Commission may, after examination of the situation, decide, on the basis of all the information available to it, to suspend advance fixing for a maximum of three working days. Applications for certificates accompanied by applications for advance fixing lodged during the period of suspension shall be rejected.”

The two abovementioned general regulations of the Council formed the legal basis for the Commission's implementing Regulation No 3318/80 (Official Journal 1980, L 345, p. 20). which is important in this case and Article 1 of which provides as follows:

“The advance fixing of export refunds for beef meat products is suspended during the period 20 to 23 December 1980.”

That is the Commission regulation which the applicant is seeking to have declared void, in so far as it relates to the applicant, under the second paragraph of Article 173.

Finallv, although the abovementioned implementing regulation of the Commission is not also based on it, a part is also played in these proceedings by Commission Regulation No 2378/80 (Official Journal 1980, L 241, p. 19), the recitals in the preamble to which inter alia provide as follows :

“... the trend of the market in beef and veal continues to show that the Commission needs to be better informed as regards in particular the quantities and destinations of fresh, chilled or torzen meat, in respect of which applications for export licences have been lodged;... it is necessary, moreover, to provide for the issue of expon licences with advance fixing of refunds after a period of five working days, in order to enable the Commission to assess the market situation and, if necessary, to take appropriate measures relating to the application in question, which may even involve rejection of such applications”.

Article 2 (1) of the same regulation provides as follows:

“For products falling within subheading 02.01 A II of the Common Customs Tariff, the expon licence with advance fixing of the refund referred to in Article 3 (a) of Regulation (EEC) No 2377/80, shall be issued on the fifth working day following the day on which the application is lodged, unless special measures have been taken during that period.”

Article 2 (3) provides:

“Notwithstanding the provisions in Article 16 of Regulation (EEC) No 2377/80 the Member States shall communicate, by telex, to the Commission on the Monday and Thursday of each week, before 4 p.m., for the products falling within subheading 02.01 A II of the Common Customs Tariff, and specifying by product, the quantities and the countries of destination:

A list of expon licences with advance fixing of refunds applied for since the previous communication, and

A list of export licences issued since the previous communication.”

However, that regulation does not concern export refunds as such, but the indissolubly-linkéd issue of export licences. The Commission relies on that regulation as well in its objection of inadmissibility.

In addition or in the alternative, as has already been noted, the applicant is also seeking a declaration of the nullity, in so far as it concerns him, of a telex message of 19 December 1980 from the Commission to the Federal Office, which reads as follows:

“With regard to the consequences of the suspension from 20 to 23 December 1980 of the advance fixing of export refunds for products within tariff subheading 02.01 (a) II, the Member States are expressly informed that the pending applications for export certificates with advance fixing of refunds which would have been dealt with on 20 December 1980 or thereafter, have lost their purpose as a result of Article 2 (1) of Regulation No 2378/80. These applications must be refused and the securities lodged must be released. In accordance with the third paragraph of.Article 5 (4) of Regulation No 885/68, the applications lodged during the period of suspension must be rejected.” ( 2 )

The abovementioned passage corresponds with the relevant pan of the complete text of the said telex message, which was produced by the Commission during the proceedings. In that complete text, the provisions of the regulation are reproduced first, followed by a clearly distinct “N.B.”, and by the passage I have quoted. The message is not signed but clearly emanates from the telex depanment of the Commission. In my opinion, therefore, those who received the message and the third panies who learned of its contents would therefore be entitled or obliged confidently to assume that it was sent on the full responsibility of the Commission.

1.3. The submissions on inadmissibility

The two submissions on which the Commission's objection of inadmissibility of the application is based may be summarized as follows:

(1) The telex meassage is not a decision of the Commission but is clearly only notification by the officers of the Commission of the contents of the contested regulation, followed by a reminder of the remaining Community rules relevant in that regard. Also, on the grounds given at the end of the previous paragraph, I shall not go into detail in my funher opinion on arguments invoked by the Commission in suppon of that submission, relating to its officer's lack of competence to adopt decisions. Also, in the light of the Coun's previous judgments in Joined Cases 23, 24 and 52/63 (Usines Henricot and Others v High Authority), Case 28/63 (Hoogovens v High Authority), and Joined Cases 53 and 54/63 (Lemmerz-Werke v High Authority) [1963] ECR 217, 231 and 239 respectively), and in Joined Cases 8 to 11/66 (Cimenteries and Others v Commission [1967] ECR 75), as well as in Case 133/79 (Sucrimex v Commission [1980] ECR 1299), I consider it more correct to concentrate exclusively in my further argument on the contents of the telex message. Moreover, as those contents seem to be closelv connected with the content of the Community law on the subject, I consider it appropriate not to go into the legal nature of the telex message until after a review of the Commission's arguments based on the text of the relevant regulations.

(2) It states that Regulation No 3318/80 does not have the character of a decision which, although in the form of a regulation, is of direct and individual concern to the applicant. Moreover, the legal effects contested by the applicant result not from that regulation but from Article 2 (1) of Regulation No 2378/80. I shall go into detail in the following part of my opinion on the arguments invoked in support of those two parts of this second submission, so far as is necessary in the light of the Court's decided cases.

2. The legal nature of Regulation No 3318/80 and of the telex message and their relevance for these proceedings

2.1 Regulation No 2378/80

The Commission's submission that the contested legal effects result not from Regulation No 33IS/80 but from Article 2 (1) of Regulation No 2378/80 is in my opinion untenable on the grounds of the abovementioned extracts from that regulation. The critical factor is the interpretation of the clause at the end of Article 2 (1) which reads “unless special measures have been taken during that period”. The meaning of that clause is clarified by the abovementioned extract from the recitals in the preamble to the regulation. From that it seems clear that the “special measures” are not in law required to provide for a rejection of applications lodged, but only that “if necessary... the appropriate measures”may“even involve rejection of such applications”. Thus it is a question of the contents of those special measures. The Commission's powers to take such special measures are based on Article 5 (4) of Regulation No 885/68, which I have also already quoted, as amended by Regulation No 1504/76. The second subparagraph of Article 5 (4) also makes it clear that the Commission may (and therefore is not obliged to) decide, in the stated conditions, to suspend advance fixing of expon refunds for a maximum of three working days. Thus, the applicant is right to assume that in the first instance only the legal nature of Regulation No 3318/80, which.it challenges, is decisive.

2.2. Regulation No 3318/80

The application for a declaration that this regulation is void is admissible under Article 173 only if the regulation is of direct and individual concern to the applicant.

The Commission denies that these conditions are met in this case. According to the Commission, the regulation is not of individual concern to the applicant, because Article 1 thereof is general and abstract in nature. The Commission does not and cannot know who may lodge an application for advance fixing of expon refunds during the suspension period. The suspension of applications which were already lodged at the time when the regulation was adopted, including the applicant's, is the result not of Regulation No 3318/80 but of Regulation 2378/80. The latter argument I have already found to be incorrect. What matters therefore is the question whether the group of applications which had already been lodged before the adoption of the regulation, but in relation to which the period of five working days had not yet been completed, falls within Regulation No 3318/80 and if so whether it may be regarded as “a conglomeration of individual decisions taken by the Commission” within the meaning of paragraph 21 of the judgment of the Court of 13 May 1971 in Joined Cases 41 to 44/70 NV International Fruit Company v Commission [1971] ECR 411).

The first part of that question should in my view be answered in the affirmative, on the grounds of the wording and aim of Regulation No 3318/80. The suspension should certainly be regarded as applying to all applications on which a decision had not yet been reached on the day of the regulation's entry into force. I consider the Commission's arguments on that point during the oral procedure to be convincing. So far as the second part of the question is concerned, during the oral procedure the Commission admitted, in spite of its evasive written reply to the question put by the Court before the hearing, that at that time the number of applications lodged before the adoption of the regulation was definitively established. There might be an essential difference here from the International Fruit cases, however, in so far as this fixed group of cases in the present case, unlike the International Fruit cases, is merged in the theoreti- callv-fixed total group of cases not established in advance, to which Regulation No 3318/80 relates. I do not consider this argument convincing, as the Court's judgment of 18 November 1975 in Case 100/74 (CAM v Commission [1975] ECR 1393) also concerned a theoretically-defined number of cases of this kind which was partly ascertained at the time of the adoption of the regulation in question but partly not yet ascertained. Nevertheless, in that case the Court recognized the first group as a fixed and known number of cereal exporters, whereof the amount of the transactions for which advance fixing had been requested was also established and which was therefore individually concerned. The Court's view, laid down in the International Fruit cases, was once again confirmed and explained in other words its judgment of 3 March 1977 in Case 88/76 (Société pour l'Exportation des Sucres v Commission [1977] ECR 709) and in its judgment of 3 May 1978 in Case 112/77 (Töpfer v Commission [1978] ECR 1019). On the basis of the Court's abovementioned earlier decisions it must in my opinion be accepted in this case as well that the contested regulation is of individual concern to the applicant.

The requirement that the regulation must also be of direct concern to the applicant is met, according to the well-established case-law of the Court, whenever the Community provisions leave no discretion to the Member States in the execution of the Community measures in question. In addition to the abovementioned case-law of the Court, I also refer in this connection to the case cited bv the applicant in this regard, the fourth Simmenthal judgment, Case 92/78 (Simmenthal v Commission [1979] ECR 777). It seems obvious to me that the wording of Article 1 of the contested Regulation No 3318/80 leaves no discretion at all to the national intervention agencies. The telex message is also absolutely clear in this respect. The applicant, who belonged to a restricted and, on 20 December 1980, ascertained group of undertakings, was therefore not only individually but also directly concerned by the regulation adopted on that date.

2.3. The telex menage

It is intended only in so far as the application is directed against the telex message of 19 December 1980 that I consider it to be inadmissible. The contested pan of the text clearly has no aim other than to summarize the legal consequences resulting under Community law from the entry into force of Regulation No 3318/8C, with regard to both pending and new applications for advance fixing of export refunds for beef and veal. The telex message was clearly neither intended to produce independent legal consequences nor capable of doing so. That is true even in so far as the message is alleged to have contained an incorrect interpretation of Community law, in particular of Regulation No 2378/80. So far as is necessary, I refer in this connection to the judgment of the Court in Case 20/58 (Phoenix-Rheinrohr v High Authority [1959] ECR 75), and in particular to page 82 thereof.

3. Conclusion

My opinion therefore is that the application made is admissible in so far as it relates to Regulation No 3318/80 (Official Journal 1980, L 345, p. 20) temporarily suspending the advance fixing of export refunds for beef meat products and that the Commission should to that extent be ordered to pay the costs of the proceedings.

( 1 ) Translated írom inc Dutch.

( 2 ) “Hinsichtlich der Folgen, die sich aus der Aussetzung der Vorausfestsetzung der Erstattungen für die Erzeugnisse der Tarifstelle 02.01 a II vom 20. bis 23. 12. 1980 ergeben, werden die Mitgliedstaaten ausdrücklich darauf hingewiesen, daß die noch anhängigen Anträge auf Ausfuhrlizenzen mit Vorausfestsetzung der Erstattung, denen am 20. 12. 1980 oder später stattgegeben worden wäre, gemäß Artikel 2 Absatz 1 der Verordnung Nr. 2378 gegenstandslos geworden sind. Diese Anträge sind abzulehnen und die gestellten Kautionen freizugeben. Die während des Aussetzungszeitraums eingereichten Anträge können gemäß Artikel 5 Absatz 4 dritter Unterabsatz der Verordnung (EWG) Nr. 885/68 nicht angenommen werden.”