Roquette Frères v Ministre de l'Agriculture, de l'Alimentation, de la Pêche et de la Ruralité.
Date: 2007-03-08
35. By its first question, the national court asks essentially whether a natural or legal person such as Roquette, in factual and legal circumstances such as those of the main proceedings, could undoubtedly have brought an admissible action, on the basis of Article 230 EC, to annul the provisions referred to in the question (‘the contested provisions’).
36. For the national court, it is in fact a matter of being sure, having regard to the case-law resulting, inter alia, from the judgment in Nachi Europe , that Roquette may plead the illegality of the contested provisions before the court, even though it has not brought an action for annulment of those provisions before the Community Courts within the time‑limit laid down in Article 230 EC.
37. In that connection, the French Government and the Commission of the European Communities argue that Roquette could without any doubt have brought an action for annulment of the contested provisions, in so far as they were of direct and individual concern to it, particularly on account of the fact that it was the sole producer of isoglucose in France and, on that basis, it was assigned all the basic quantities allocated to metropolitan France.
38. Conversely, Roquette and the Council of the European Union take the view that the contested provisions were not of direct and individual concern to the applicant in the main proceedings and that, in any event, there is still some doubt as to whether it had locus standi  to bring an action for annulment of those provisions. Therefore, the case-law deriving from the judgment in Nachi Europe  is not applicable in this case, so that the applicant in the main proceedings is able to rely on the invalidity of the contested provisions and, therefore, it is necessary for the Court to make an assessment of their validity.
39. It must be recalled, first of all, that Article 241 EC expresses a general principle of law under which an applicant must, in proceedings brought under national law against the rejection of his application, be able to plead the illegality of a Community measure on which the national decision adopted in his regard is based, and the question of the validity of that Community measure may thus be referred to the Court in proceedings for a preliminary ruling ( Nachi Europe , paragraph 35, and the case-law cited).
40. However, this general principle, which has the effect of ensuring that every person has or will have had the opportunity to challenge a Community measure which forms the basis of a decision adversely affecting him, does not in any way preclude a regulation from becoming definitive as against an individual in regard to whom it must be considered to be an individual decision and who could undoubtedly have sought its annulment under Article 230 EC, a fact which prevents that individual from pleading the illegality of that regulation before the national court ( Nachi Europe , paragraph 37).
41. Therefore, the question arises as to whether an action by Roquette challenging the contested provisions under the fourth paragraph of Article 230 EC would undoubtedly have been admissible, since they are of direct and individual concern to it (see, to that effect, Case C-241/95 Accrington Beef and Others  [1996] ECR I‑6699, paragraph 15).
42. In that connection, it must be held that the regulations from which those provisions derive put in place, inter alia, a scheme for basic production quantities allocated to the Member States, which are responsible for distributing them among the various producers established on their territory.
43. In such a scheme, in which it is for the Member States to distribute the basic production quantities allocated to them among producers, with the possibility to transfer quotas between them, it must be stated that each producer has its quotas directly and definitively set by decision of the Member State in which it is established.
44. Furthermore, it must be recalled that, under that scheme, the Member States had some room for manoeuvre, since they were able, under the conditions laid down by the Community rules, to redistribute the quotas among producers in order, in particular, to enable new entrants to commence isoglucose production.
45. Therefore, a producer cannot, in principle, be directly concerned, for the purpose of the fourth paragraph of Article 230 EC, by the allocation of basic production quantities to the Member States as effected at Community level by the contested provisions.
46. Finally, the fact that Roquette was the only isoglucose producer established in metropolitan France and, on that basis, it was assigned the entire basic production quantity allocated to the latter, does nothing to change that finding since, in the absence of a national decision to that effect, nothing actually guaranteed that undertaking such a level of quotas solely on the basis of the Community regulations, since part of its quotas could have been reallocated by the Member State concerned, in particular to any new isoglucose producer.
47. It follows from the foregoing that an undertaking such as Roquette was not able to be regarded as directly concerned, for the purpose of the fourth paragraph of Article 230 EC, by the contested provisions. Consequently, it cannot be argued that it could undoubtedly have brought an admissible action to annul those provisions before the Community Courts.
48. Therefore, the answer to the first question must be that a natural or legal person such as Roquette, in factual and legal circumstances such as those of the main proceedings, could not undoubtedly have brought an admissible action, on the basis of Article 230 EC, to annul the contested provisions. Therefore, such a person may, in proceedings brought under national law, plead the illegality of those provisions, even though it has not brought an action for annulment of those provisions before the Community Courts within the time‑limit laid down in Article 230 EC.
The second question