Opinion of Mr Advocate General Mischo delivered on 6 February 1990. - Cargill BV and others v Commission of the European Communities. - Agriculture - Regulation suspending advance fixing of a subsidy - Admissibility of an action for annulment. - Case C-229/88.



European Court reports 1990 Page I-01303



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . On 7 June 1988 the Commission adopted Regulation ( EEC ) No 1587/88 suspending advance fixing of the subsidy for colza, rape and sunflower seed ( Official Journal L 141, 8.6.1988, p . 55 ) "in the case of certificates the application for which is lodged from 7 to 11 June 1988 ". The applicants seek a declaration that that regulation is void in so far as it applies to applications for advance fixing lodged on 7 June 1988 .

2 . In support of their application they refer to Article 8 of Council Regulation ( EEC ) No 1594/83 of 14 June 1983 on the subsidy for oilseeds, as subsequently amended, ( 1 ) which constitutes the legal basis for the contested regulation .

3 . That article provides as follows :

"1 . In the case of an abnormal situation which results or could result in a disturbance on the Community market for oilseeds, it may be decided to suspend the advance fixing of the subsidy for the period necessary to re-establish the balance in the market .

2 . The suspension referred to in paragraph 1 may be extended to the advance-fixing parts of the certificate referred to in Article 4 which have been requested and have not yet been issued in the case :

( a ) where there is a material error in the amount of the subsidy which is published,

( b ) where certain factors may create a monetary distortion between Member States,

and when these cases may create a discrimination between interested parties .

3 . Suspension of advance fixing shall be decided in accordance with the procedure laid down in Article 38 of Regulation No 136/66/EEC .

However, in case of emergency, the Commission may decide on the suspension; in such a case, the period of suspension shall not exceed five days ."

4 . The Commission raised an objection of inadmissiblity, claiming that under the second paragraph of Article 173 of the Treaty private persons can institute proceedings only if the contested measure, although adopted in the form of a regulation, in fact constitutes a decision which is of direct and individual concern to them . It relies on well-known decisions of this Court ( 2 ) and more particularly the judgments of 25 March 1982 in Case 45/81 Moksel v Commission (( 1982 )) ECR 1129, of 27 October 1983 in Case 276/82 De Beste Boter v Produktschap voor Zuivel (( 1983 )) ECR 3331, and of 21 November 1989 in Case 244/88 Les usines coopératives de déshydratation du Vexin and Others v Commission (( 1989 )) ECR 0000 ( hereinafter referred to as "UCDV "). In those judgments, the Court held that Commission regulations suspending the advance fixing of a certain type of refund or aid constituted acts of general application within the meaning of the second paragraph of Article 189 of the Treaty, which could not be of individual concern to those persons who had lodged an application for advance fixing before the adoption of those regulations .

5 . At first sight it might therefore be considered sufficient to refer to those judgments in order to reach the conclusion that the present application is inadmissible .

6 . The fact is, however, that the provisions at issue in the three cases to which I have just referred differed substantially from the provision which served as a legal basis for the contested decision in this case .

7 . In Case 45/81 Moksel, the provision at issue was Article 5 of Regulation ( EEC ) No 885/68 of the Council of 28 June 1968 laying down general rules for granting export refunds on beef and veal and criteria for fixing the amount of such refunds, as amended by Council Regulation ( EEC ) No 1504/76 of 21 June 1976 ( Official Journal L 168, 28.6.1976, p . 7 ). Paragraph 4 provides as follows :

"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 ."

8 . In the De Beste Boter case, the provision in question was framed in identical terms to the provision just cited ( see Article 9(2 ) of Regulation ( EEC ) No 2429/72 of the Council of 21 November 1972 concerning the suspension of the application of the provisions for the advance fixing of levies and export refunds in different sectors of the common organization of the market ( Official Journal, English Special Edition 1972 ( November ), p . 48 ).

9 . In the Court' s most recent judgment, in Case 244/89 UCDV, cited above, the essential passage of the text on which the Commission relied for suspension of the advance fixing was worded as follows :

"1 . If the situation on the Community dried-fodder market is abnormal, and in particular if the volume of applications for advance fixing of the aid bears no relation to the normal sale pattern for such products, a decision may be taken, for certificates not already issued, to suspend advance fixings for the period necessary to re-establish market stability ". ( 3 )

10 . It is interesting to note that, before being amended in 1986, Article 8 of Regulation No 1594/83 had essentially the same wording as that of the provision in question in the UCDV case . As appears from the last recital in the preamble to Regulation No 935/86, Article 8 was amended because :

"experience has shown, in the case of an abnormal situation on the Community market for oilseeds, that it is necessary to clarify the conditions for the suspension of the advance fixing of the subsidy ".

11 . It is undeniable that the new wording of Article 8 subjects the extension of the suspension to certificates already applied for to criteria different from those which allow suspension of advance fixing only as regards the future . The applicants are therefore right to emphasize that a regulation which covers both hypotheses at the same time in fact constitutes a measure made up of two distinct parts : one part relates to applications pending and another to applications yet to be made .

12 . Such information should normally appear in the preamble . But even if the preamble lacks clarity in that respect, it is clearly apparent from the wording of Article 8 of Regulation No 1594/83, which is the legal basis for the contested regulation, that it is not possible to conclude here, as the Court was able to do in the Moksel and UCDV judgments, that the suspension of the advance fixing affected without distinction pending applications and those which might have been lodged at a later stage if the suspending measure had not been adopted .

13 . The question remains whether the contested regulation in fact constitutes, in so far as it covers applications lodged on 7 June 1988, a decision which is of direct and individual concern to the persons who lodged the applications .

14 . As far as precedents are concerned, three cases display rather marked similarities to the present one . They are Joined Cases 41 to 44/70 International Fruit Company (( 1971 )) ECR 411 ( judgment of 13 May 1971 ), Joined Cases 106 and 107/63 Toepfer (( 1965 )) ECR 405 ( judgment of 1 July 1965 ) and Case 62/70 Bock (( 1971 )) ECR 897 ( judgment of 23 November 1971 ), in which the Court held the applications to be admissible .

15 . However, the International Fruit Company judgment differs fundamentally from the present case . Under the system at issue in that case, the Member State was obliged to inform the Commission at the end of each week of the quantities for which import licences had been applied for and it was then for the Commission to assess the situation and to decide on the issue of licences, in particular on the basis of the information communicated to it . The Court stated, in paragraph 20 of that judgment, that the Commission "decided ... on the subsequent fate of each application which had been lodged ". That was certainly not the case here .

16 . As for the Toepfer and Bock judgments, a superficial reading of them might give the impression that they relate to a situation identical to the one at issue here . However, that similarity is no more than apparent . In those cases the Member States, as a first step, adopted a precautionary measure or refused to issue an import licence and thereafter, but not for several days, the Commission retroactively confirmed those measures .

17 . In Toepfer the Court stated that

"the number and identity of these importers had already become fixed and ascertainable before 4 October, when the contested decision was made ".

In the Bock judgment, the Court noted that it was

"the German authorities ... had requested (( the )) authorization with particular reference to the applications already before them at that time" ( paragraph 7 ).

In both cases, the Court emphasized that the Commission was therefore in a position to appreciate that the contested provision affected the interests and circumstances of those importers alone .

18 . The regulation in question in the present case was adopted during the course of 7 June 1988 and was published in the Official Journal on 8 June 1988 . It did not come to the notice of the traders until the latter date and it is probable that when the contested regulation was being signed by the Vice-President of the Commission applications were still pouring into the offices of the competent authorities of the Member States and that the Commission did not know the exact number or identity of the traders affected by its decision . But, even if that is assumed to be the case, there would not be sufficient grounds for concluding that the regulation at issue constituted, at least in part, a package of decisions of individual concern to the applicants . Like Mr Advocate General Tesauro, I am of the opinion that although the existence of a numerus clausus, is

"a necessary condition for the measure to be recognized as not constituting a regulation, it is not sufficient in itself ". ( 4 )

19 . It must be recalled that in its judgment of 11 July 1968 in Case 6/68 Zuckerfabrik Watenstedt GmbH v Council (( 1968 )) ECR 409, and on innumerable occasions thereafter, the Court has held that :

"A measure does not lose its character as a regulation simply because it may be possible to ascertain with a greater or lesser degree of accuracy the number or even the identity of the persons to which it applies at any given time as long as there is no doubt that the measure is applicable as the result of an objective situation of law or of fact which it specifies and which is in harmony with its ultimate objective ."

20 . It is also necessary, as Mr Tesauro also says,

"for the circumstance which enables the addressees of the measure to be identified to have in some way prompted the intervention of the institution and therefore to form part of the raison d' être of the measure itself ".

21 . According to Article 8 of Regulation No 1594/83, the extension of the suspension of advance fixing to applications already lodged is possible only if certain objective circumstances arise, which are wholly unrelated to the identity and even to the number of the traders concerned . Such an extension is possible only in the case :

"( a ) where there is a material error in the amount of the subsidy which is published;

( b ) where certain factors may create a monetary distortion between Member States and when these cases may create a discrimination between interested parties ".

22 . Even the latter criterion cannot be regarded as a reference to the identity of the traders who lodged an application . In my opinion, it is intended merely to ensure that that category of traders could not benefit from an undeserved advantage if the suspension of advance fixing did not affect it .

23 . It is true that, in the contested regulation, the Commission made no reference to criteria ( a ) and ( b ) and that it merely stated that

"Under Article 8 of Regulation ( EEC ) No 1594/83, the application of the provisions concerning advance fixing may be suspended if certain factors may create a discrimination between interested parties and if the certificate applied for has not yet been issued"

and that

"in view of the uncertainty reigning on the markets, there is a danger that a continuation of the present system could give rise to speculative operations ".

24 . If the Court decides to examine the substance of the present applications and in any event when the Court answers the questions referred to it for a preliminary ruling by several national courts concerning the validity of Regulation No 1587/88, it will have to decide whether, in the circumstances, the conditions laid down in Article 8 of Regulation No 1594/83 were in fact fulfilled .

25 . As regards the admissibility of the present applications, it is possible, however, to conclude that the suspension of the advance fixing, with respect to the applications lodged on 7 June 1988, did not take place by reason of the individual applications submitted on that day but by virtue of an objective legal and factual situation defined by the contested measure in relation to its aim . The purpose of the contested regulation was in fact to ensure that the persons who lodged those applications, whoever they might be, were not able to receive a subsidy of an excessive amount in relation to the purposes of the system and thus that there was no discrimination against those traders who subsequently lodged applications for advance fixing after the expiry of the regulation suspending advance fixing ( 11 June 1988 ) since in the meantime a regulation also adopted on 7 June, which entered into force on 8 June 1988, had reduced the level of the subsidy .

26 . We are therefore entitled to conclude that the contested regulation applies to an objectively determined situation and that it produces legal effects with respect to a category of persons defined in the abstract . It is therefore of general application within the meaning of the second paragraph of Article 189 of the Treaty and cannot be of direct and individual concern to the applicants within the meaning of the second paragraph of Article 173 of the Treaty .

27 . In conclusion, I propose that the Court dismiss the applications as inadmissible and order the applicant companies to pay the costs, including those relating to the application for interim relief .

(*) Original language : French .

( 1 ) Council Regulation ( EEC ) No 935/86 of 25 March 1986, amending Regulation ( EEC ) No 1594/83 on the subsidy for oilseeds ( OJ 1986, L 87, p . 5 ).

( 2)2 See in particular the judgments of 6 October 1982 in Case 307/81 Alusuisse (( 1982 )) ECR 1987, paragraphs 8 and 11, of 24 February 1987 in Case 26/86 Deutz and Geldermann (( 1987 )) ECR 941, paragraphs 7 and 8 and, lastly, of 29 June 1989 in Joined Cases 250/86 and 11/87 RAR (( 1989 )) ECR 2045, paragraphs 8 and 9 .

( 3 ) Article 12 of Regulation ( EEC ) No 1417/78 of 19 June 1978 on the aid system for dried fodder ( OJ 1978, L 171, p . 1 ).

( 4 ) Opinion of Mr Advocate General Tesauro of 26 September 1989 in Case C-244/88 UCDV and Others v Commission (( 1989 )) ECR 3811, at p . 3819, paragraph 4 .