Opinion of Mr Advocate General Mischo delivered on 10 December 1986. - Deutz und Geldermann, Sektkellerei Breisach (Baden) GmbH v Council of the European Communities. - Ban on referring to the method of production known as "methode champenoise" - Application for a declaration that a measure is void - Natural or legal persons - Admissibility. - Case 26/86.



European Court reports 1987 Page 00941



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

According to previous decisions of the Court, ( 1 ) "the second paragraph of Article 173 of the Treaty makes the admissibility of proceedings instituted by an individual for a declaration that a measure is void dependent on fulfilment of the condition that the contested measure, although in the form of a regulation, in fact constitutes a decision which is of direct and individual concern to him . The objective of that provision is in particular to prevent the Community institutions, merely by choosing the form of a regulation, from being able to exclude an application by an individual against a decision of direct and individual concern to him and thus to make clear that the choice of form may not alter the nature of a measure .

"Nevertheless an action brought by an individual is not admissible in so far as it is directed against a regulation having general application within the meaning of the second paragraph of Article 189 of the Treaty, the test for distinguishing between a regulation and a decision, according to the settled case-law of the Court, being whether or not the measure in question has general application . It is therefore necessary to appraise the nature of the contested measures and in particular the legal effects which they are intended to produce or in fact produce ."

According to the same decision, measures are of general application where they "apply to objectively determined situations and entail legal effects for categories of persons regarded generally and in the abstract ."

In raising this objection of inadmissibility the Council - whose conclusions are supported by the Commission, which has intervened in these proceedings - asks the Court to declare, in application of those principles, that Article 6 ( 5 ) of Council Regulation ( EEC ) No 3309/85 of 18 November 1985, laying down general rules for the description and presentation of sparkling wines and aerated sparkling wines, ( 2 ) is of just such general application, so that the German undertaking Deutz und Geldermann, a producer and merchant of sparkling wines, cannot be regarded as being individually concerned by that provision .

It should be observed first of all that Article 6 ( 5 ) contains two distinct provisions, namely a general rule and a temporary derogation .

The general rule, contained in the first and second subparagraphs, consists in a prohibition on the use, for the purposes of describing a quality sparkling wine, of any reference to a method of production containing a geographical name if the product in question may not be given the designation of origin concerned .

That rule constitutes without doubt a provision having general application as defined by the Court in the judgment I have cited .

As the Council points out in its written observations, that prohibition of indeterminate duration is applicable to all producers and "merchants of sparkling wines, present and future, whether they market sparkling wines produced in the Community or imported sparkling wines . That general and abstract rule is therefore applicable to an indeterminate category of persons and concerns the applicant only as a present sparkling-wine merchant . That character, however, may be acquired by any other person wishing to engage in that business . Therefore the prohibition certainly does not concern a closed and limited group of affected traders which may not alter in the future ".

Yet the action brought by Deutz und Geldermann is not in fact directed against the general prohibition contained in the first and second subparagraphs . The applicant asks the Court to "declare that Council Regulation No 3309/85 is void in so far as Article 6 ( 5 ) provides that reference to the method of production known as 'méthode champenoise' may be used, if such a usage was traditional, only for eight more wine-growing years ".

The essential aim of the action is therefore to secure the removal of the words "for eight wine-growing years" from the third subparagraph of Article 6 ( 5 ).

That being so, it must be examined whether the transitional provision in question is of direct and individual concern to the applicant .

It should be said at once that the provision in question is undeniably of direct concern to the applicant as a user of the "méthode champenoise ".

The provision in question is in fact contained in a regulation which is by definition directly applicable, does not require any implementing measures on the part of the Community administration or the national administrations and leaves them no margin of discretion .

The issue therefore boils down to the question whether the third subparagraph of Article 6 ( 5 ), although contained in a regulation, may be considered to be an individual decision or a bundle of individual decisions because it is based on the criterion of "traditional usage" and therefore seems capable of affecting only a limited number of traders whose identity is ascertainable .

1 . The Council relies on an extremely broad interpretation of the concept of "traditional usage" which would preclude Deutz und Geldermann from being individually concerned .

In the Council' s view, that condition does not apply individually to each producer or merchant but to a specific country or a specific region . Therefore not only producers and merchants who traditionally used that reference may continue to do so for a further eight years; any producer or merchant, present or future, established in a Member State or region in which that reference is traditional could engage for the first time in the production of sparkling wines using the "méthode champenoise" at any time in the transitional period .

The group of traders concerned is therefore by no means fixed .

However, the broad interpretation suggested by the Council does not appear convincing to me .

Transitional provisions usually have the purpose of enabling traders who, at the time of the adoption of new rules, have actually benefited from a particular régime to adjust gradually to the new system .

I am unable to find anything in either the wording of Council Regulation No 3309/85 or its preamble which might show that that is not the case here .

2 . The applicant maintains that in reality the transitional measure concerns only present producers of sparkling wines and not traders because it relates to the traditional use of a method of production which only producers may have used .

A trader may use the words "méthode champenoise" on the bottles he sells only if the producer gives him an assurance that the sparkling wine was produced according to that method .

That reasoning is certainly not without its merits .

It is none the less true that the third subparagraph of Article 6*(5 ) provides that "reference to the method of production known as 'méthode champenoise' may, if such a usage were traditional, be used .... for eight wine-growing years ...".

It follows that all merchants satisfying the prescribed condition, and in particular importers who have traditionally sold sparkling wines produced in non-member countries according to the "méthode champenoise", will be able to continue to refer to that method .

It cannot therefore be easy to identify all the traders who might rely on the derogation .

3 . However that may be, the decisive argument in this case is the following .

It is clear from a line of consistent decisions of the Court that even if the view were taken that the derogation applies only to sparkling-wine producers established in the Community who have traditionally used the "méthode champenoise" prior to the entry into force of the regulation, Deutz und Geldermann cannot be regarded as being individually concerned .

The Court has held on several occasions that "a measure does not cease to be a regulation because it is possible to determine the number or even the identity of the persons to whom it applies at any given time 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 relation to its purpose ". ( 3 ) At all events, it seems to me that that is the position in this case because the temporary derogation created by the third subparagraph applies to the persons concerned by reason only of their objective status as sparkling-wine producers and not "because of a factual situation which differentiates them from all other persons and distinguishes them individually just as in the case of the person addressed ". ( 4 )

Thus the Court has held that, even if an applicant is in fact the only importer of a particular product, it is nevertheless not individually concerned by a decision relating to that activity which is addressed to a Member State provided that that measure concerns the applicant merely by virtue of its objective capacity as an importer of the goods in question in the same manner as any other trader who is, or might be in the future, in the same situation . ( 5 )

In those cases in which the Court has accepted the admissibility of an action brought by an individual against a regulation, the persons to whom the regulation applied were known individually, not because they belonged to a particular category which was more or less defined, but because they had actually carried out before a given date a quite specific formality such as requesting an import or export licence or advance fixing ( 6 ) which only certain members of that category had carried out .

In other cases the natural or legal persons concerned were in fact named addressees ( 7 ) or could be identified indirectly in the legal measures of the Commission or the Council and had been particularly concerned by the preparatory investigations . ( 8 )

In view of all the foregoing considerations, the third subparagraph of Article 6 ( 5 ) of Council Regulation No 3309/85 must therefore be regarded as a legislative provision of general application within the meaning of the second paragraph of Article 189 of the EEC Treaty and not as a decision of individual concern to the applicant .

Consequently, I can only propose that the Court should dismiss this application as inadmissible and order the applicant to pay the costs .

(*) Translated from the French .

( 1 ) - See in particular the judgment of 29 January 1985 in Case 147/83 Muenchener Import-Weinkellerei Herold Binderer GmbH v Commission (( 1985 )) ECR 257 and the judgment of 6 October 1982 in Case 307/81 Alusuisse Italia SpA v Council and Commission (( 1982 )) ECR 3463 .

( 2 ) - Official Journal 1985, L 320, p.*9 .

( 3 ) - See the judgment in Alusuisse v Council and Commission, cited above, at paragraph 11 of the decision .

( 4 ) - Judgment of 18 November 1975 in Case 100/74 Société C.A.M . SA v Commission (( 1975 )) ECR 1393, paragraph 19 at p . 1403 .

( 5 ) - Judgment of 14 July 1983 in Case 231/82 Spijker Kwasten BV v Commission (( 1983 )) ECR 2559, paragraphs 8 to 10 at p . 2566 .

( 6 ) - Judgment of 13 May 1971 in Joined Cases 41 to 44/70 International Fruit Company NV and Others v Commission (( 1971 )) ECR 411, paragraphs 16 to 21; judgment in Société C.A.M . SA v Commission cited above, paragraphs 14 to 19; judgment of 31 March 1977 in Case 88/76 Société pour l' exportation des sucres v Commission (( 1977 )) ECR 709, paragraphs 9 to 11; judgment of 3 May 1978 in Case 112/77 August Toepfer & Co . GmbH v Commission (( 1978 )) ECR 1019, paragraph 9; judgments of 27 November 1984 in Case 232/81 Agricola Commerciale Olio Srl and Others v Commission (( 1984 )) ECR 3881, and Case 264/81 SpA Savma v Commission (( 1984 )) ECR 3915, paragraph 11 .

( 7 ) - Judgments of 29 March 1979 in Case 113/77 NTN Toyo Bearing Company Ltd and Others v Council (( 1979 )) ECR 1185, paragraph 11; Case 119/77, Nippon Seiko KK and Others v Council and Commission (( 1979 )) ECR 1303, paragraph 14; Case 120/77, Koyo Seiko Co . Ltd and Others v Council and Commission (( 1979 )) ECR 1337, paragraph 23; Case 121/77 Nachi Fujikoshi Corporation and Others v Council (( 1979 )) ECR 1363, paragraph 11; judgments of 29 October 1980 in Case 138/79 Roquette Frères SA v Council (( 1980 )) ECR 3333 and Case 139/79 Maizena GmbH v Council (( 1980 )) ECR 3393, paragraphs 14 to 16 .

( 8 ) - That may be the case in particular with regulations imposing anti-dumping duties : see the judgment of 29 March 1979 in Case 118/77 Import Standard Office ( ISO ) v Council (( 1979 )) ECR 1277, paragraphs 19 to 22; the judgment in Nippon Seiko, cited above, paragraph 13, in Koyo Seiko, cited above, paragraphs 18 to 21 and in Nachi Fujikoshi, cited above, paragraphs 8 and 9; the judgment of 21*February 1984 in Joined Cases 239 and 275/82 Allied Corporation v Commission (( 1984 )) ECR 1005, paragraphs 10 to 12; the judgment of 20*March 1985 in Case 264/82 Timex Corporation v Council and Commission (( 1985 )) ECR 849, paragraphs 11 to 15; and the judgment of 23 May 1985 in Case 53/83 Allied Corporation v Council (( 1985 )) ECR 1621, paragraph 4 .