Order of the Court of 12 July 1993. - Asociación Española de Fabricantes de Margarina v Commission of the European Communities. - Inadmissibility. - Case C-107/93.



European Court reports 1993 Page I-03999



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

Actions for annulment ° Natural or legal persons ° Measures of direct and individual concern to them ° Regulation abolishing customs duties in trade between the Community of Ten and Spain

(EEC Treaty, Art. 173, second para.; Council Regulation (EEC) No 3830/92)

Summary

The possibility of determining more or less precisely the number or even the identity of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them, within the meaning of the second paragraph of Article 173 of the Treaty, so long as it is established that such application takes effect by virtue of an objective legal or factual situation defined by the act adopting the measure in question. In order for a measure to be of individual concern to the persons to whom it applies, it must affect their legal position because of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as a person to whom it is addressed.

A regulation providing for the abolition of customs duties in trade between the Community of Ten and Spain, on products which are subject to a common organization of the market, applies to situations determined objectively and has legal effects for categories of persons envisaged in a general and abstract way. It concerns Spanish margarine producers only in their objective capacity as producers of a commodity subject to customs duties in trade between Spain and the remainder of the Community in the same way as every other trader in the same position and neither the damage which the producers expect to suffer from the abolition of the customs duties nor the purpose alleged to be behind the regulation, namely the abolition of tariff protection, allow them to consider themselves individually concerned by the measure in question.

Parties

In Case C-107/93,

Asociación Española de Fabricantes de Margarina (AEFMA), an association governed by Spanish law, established in Madrid, represented by Diego López Garrido, of the Madrid Bar, with an address for service in Luxembourg at the Chambers of Silvia López, 26 Rue du Curé,

applicant,

v

Commission of the European Communities, represented by Francisco Santaolalla Gadea, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Nicola Annecchino, of its Legal Service, Wagner Centre,

defendant,

APPLICATION for the annulment of Commission Regulation (EEC) No 3830/92 of 28 December 1992 relative to the suppression of customs duties and fixed components to trade between the Community of Ten and Spain and to the application by Spain of the duties from the Common Customs Tariff to trade with non-member countries from 1 January 1993 (OJ 1992 L 387, p. 46), in so far as it concerns products falling under heading No 15.17 of the Common Customs Tariff,

THE COURT,

composed of: O. Due, President, C.N. Kakouris, G.C. Rodríguez Iglesias, M. Zuleeg and J.L. Murray, (Presidents of Chambers), G.F. Mancini, R. Joliet, F.A. Schockweiler, J.C. Moitinho de Almeida, F. Grévisse, M. Diez de Velasco, P.J.G. Kapteyn and D.A.O. Edward, Judges,

Advocate General: M. Darmon,

Registrar: J.-G. Giraud,

after hearing the Advocate General,

makes the following

Order

Grounds

1 By application lodged at the Court Registry on 24 March 1993, Asociación Española de Fabricantes de Margarina (AEFMA) brought an action under the second paragraph of Article 173 of the EEC Treaty for a declaration that Commission Regulation (EEC) No 3830/92 of 28 December 1992 relative to the suppression of customs duties and fixed components to trade between the Community of Ten and Spain and to the application by Spain of the duties from the Common Customs Tariff to trade with non-member countries from 1 January 1993 (OJ 1992 L 387, p. 46) was void. The declaration is requested solely in so far as concerns products falling under heading No 15.17 of the Common Customs Tariff ° "Margarine; edible mixtures or preparations of animal or vegetable fats or oils or of fractions of different fats or oils of this Chapter, other than edible fats or oils or their fractions of heading No 1516".

2 The detailed rules governing the accession of Spain to the European Communities are laid down in the Act concerning the conditions of Accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties (OJ 1985 L 302, p. 23).

3 The second sub-paragraph of Article 75(1)(d) of the Act of Accession provides that customs duties on certain oils and fats are to be progressively abolished in trade between the Kingdom of Spain and the remainder of the Community between 1 January 1991 and 1 January 1996.

4 The substances to which the system applies are listed in Article 1(2)(b) of Council Regulation No 136/66/EEC of 22 September 1966 on the establishment of a common organization of the market in oils and fats (OJ, English Special Edition 1966, p. 221); they include, inter alia,

° fats and oils of fish and marine mammals,

° fixed vegetable oils, fluid or solid, crude, refined or purified, excluding olive oil,

° animal or vegetable oils and fats, wholly or partly hydrogenated, or solidified or hardened by any other process, whether or not refined, but not further prepared and

° margarine, imitation lard and other prepared edible fats.

5 In the light of the completion of the internal market, on 28 December 1992 the Commission adopted the contested Regulation, under which all customs duties on agricultural products which are covered by a common organization of the market must be abolished on 1 January 1993. The abolition of duties is provided for by Article 1(1) of the regulation, which reads:

"1. From 1 January 1993:

° Spain suppresses [in] trade with the Community of Ten for products subject to common organization of the market, customs duties and fixed components intended to ensure protection of the processing industry,

° customs duties and fixed components intended to ensure protection of the processing industry applicable by the Community of Ten on imports from Spain are suppressed.

..."

6 The result of the Regulation has been that duties on oils and fats, which are covered by an organization of the market within the Community (see paragraph 4 above), have had to be abolished more rapidly than was provided for in Article 75(1) of the Act of Accession and that Spanish producers of margarine have therefore had to face an increase in competition from undertakings in the remainder of the Community, in a way which they consider unexpected.

7 The Regulation is based on Article 75(4) of the Act of Accession, which provides that customs duties on agricultural products subject to a common organization of the market may be abolished at a more rapid rate than the Act provides. The provision in question reads as follows:

"4. For products subject to the common organization of markets, it may be decided, following the procedure laid down in Article 38 of Regulation No 136/66/EEC or, as the case may be, in the corresponding Articles of other Regulations setting up the common organization of agricultural markets, that:

a) the Kingdom of Spain, at its request, shall:

° abolish the customs duties referred to in paragraph 1 ... at a more rapid rate than laid down there,

..."

8 Royal Decree No 1626/1992 of 29 December 1992 was adopted on the basis of this Regulation. That decree, which contains the tariff nomenclature and the customs duties applicable in Spain for 1993, provides that duties levied on imports from the remainder of the Community are to be abolished from 1 January 1993.

9 AEFMA sought the annulment of the Regulation by application of 24 March 1993; by a separate document of 24 March 1993, it further sought suspension of the operation of the Regulation as an interim measure.

10 On 12 May 1993, the Commission raised a plea of inadmissibility in respect of the action for annulment, to which the defendant replied in writing on 24 June 1993.

11 In accordance with Article 91(4) of the Rules of Procedure, the Court may, after hearing the Advocate General, decide on a preliminary objection or other preliminary plea raised before it not going to the substance of the case.

12 Moreover, since the Court has in the documents before it all the information it needs to reach a decision, it has decided, pursuant to Article 91(3) of the Rules of Procedure, to give its decision without hearing oral argument from the parties.

13 Under the second paragraph of Article 173 of the 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.

14 As to whether the applicant is individually concerned, it is to be noted that the Court has consistently held that the possibility of determining more or less precisely the number or even the identity of the persons to whom a measure applies in no way implies that those persons must be regarded as individually concerned by the measure as long as it is established that such application takes effect by virtue of an objective legal or factual situation defined by the measure in question.

15 For persons to be considered individually concerned, their legal position must be affected by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as a person to whom the measure is addressed (see Case C-131/92 Arnaud v Council [1993] ECR I-2573, paragraphs 13 and 14).

16 Under Article 1(1) of the contested Regulation, the abolition of customs duties has effects for all agricultural products subject to an organization of the market within the Community and thus affects all those who are engaged in business within the framework of such an organization.

17 It follows that the contested measure applies to objectively determined situations and produces legal effects with respect to categories of persons who are envisaged in a general and abstract manner.

18 The measure in question therefore concerns the members of the applicant association only in their objective capacity as producers of a commodity which is subject to customs duty in trade between Spain and the remainder of the Community, in the same way as any other trader in the same situation.

19 The applicant maintains that Spanish margarine producers will suffer considerable damage as a result of the abolition of the customs duties and that the magnitude of the loss, which it estimates at PTA 6 000 000 000, concerns it individually to a sufficient degree for the purposes of bringing proceedings under the second paragraph of Article 173 of the Treaty.

20 In this respect, it is to be noted that the damage which the applicant claims does not distinguish its members from other present or future traders whose position will also be changed as a result of the abolition of the tariff protection from which they previously benefited under the customs duties; the applicant cannot claim that its members are individually concerned in this case because of the damage which it claims they have sustained.

21 AEFMA also claims that the Regulation was adopted for the sole purpose of removing the tariff protection which the Spanish margarine producers formerly enjoyed and that such a purpose shows that there is an individual link between these producers and the contested measure.

22 In that regard it is enough to note that the aim which the applicant claims to lie behind the Regulation in no way shows that those producers are individually affected; on the contrary it shows that their position is no different from that of all traders who, as a result of the adoption of the regulation, have lost the benefit of the tariff protection which the customs duties gave.

23 In those circumstances the application must be dismissed as inadmissible.

Decision on costs

Costs

24 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the applicant has been unsuccessful, it must be ordered to pay the costs.

Operative part

On those grounds,

THE COURT

hereby orders:

1. The application is dismissed as inadmissible.

2. The applicant shall bear the costs.

Luxembourg, 12 July 1993.