1 THE APPLICATION, WHICH WAS LODGED AT THE COURT REGISTRY ON 19 DECEMBER 1974, IS FOR THE ANNULMENT OF REGULATION NO 2546/74 OF THE COMMISSION OF 4 OCTOBER 1974 CONCERNING CERTAIN MEASURES TO BE TAKEN, FOLLOWING THE RAISING WITH EFFECT FROM 7 OCTOBER 1974 OF THE THRESHOLD PRICES FOR CEREALS AND RICE, AS REGARDS LICENCES FOR THOSE PRODUCTS WHERE THE IMPORT LEVY OR EXPORT REFUND IS FIXED IN ADVANCE ( OJ L 271 OF 5 . 10 . 1974, P . 77 ).
2 THIS REGULATION CONSISTS OF TWO ARTICLES OF WHICH THE FIRST PROVIDES THAT : 'WHERE AN IMPORT LEVY OR AN EXPORT REFUND ON A PRODUCT COMING UNDER REGULATION NO 120/67/EEC OR UNDER REGULATION NO 359/67/EEC HAS BEEN FIXED IN ADVANCE AND THE DAY ON WHICH THE LICENCE WAS APPLIED OR, AS DEFINED IN ARTICLE 6 OF REGULATION ( EEC ) NO 1373/70 IS A DAY PRIOR TO 7 OCTOBER 1974, SUCH LEVY OR REFUND SHALL NOT BE ADJUSTED AS REGARDS THAT PART OF THE INCREASE IN THE THRESHOLD PRICE WHICH RESULTS FROM THE INCREASE IN AGRICULTURAL PRICES TAKING EFFECT ON 7 OCTOBER 1974 '. ADMISSIBILITY
3 ACCORDING TO THE COMMISSION, THE CONTESTED MEASURE BEING A REGULATION, THE APPLICATION MUST, SINCE IT COMES FROM A PRIVATE PERSON, BE REJECTED AS INADMISSIBLE AS ARTICLE 173 OF THE TREATY DOES NOT ENTITLE NATURAL OR LEGAL PERSONS OTHER THAN THE MEMBER STATES, THE COUNCIL OR THE COMMISSION TO SEEK THE ANNULMENT OF SUCH MEASURES .
4 THE APPLICANT DISPUTES THAT THIS MEASURE HAS THE CHARACTER OF A REGULATION AND MAINTAINS THAT IT IS A DECISION WHICH ALTHOUGH IN THE FORM OF A REGULATION IS OF DIRECT AND INDIVIDUAL CONCERN TO IT .
5 IT IS CONSEQUENTLY NECESSARY TO DECIDE UPON THE CHARACTER AND THE SCOPE OF THE CONTESTED MEASURE IN RELATION TO THE REQUIREMENTS OF ARTICLE 173 IN RESPECT OF THE ADMISSIBILITY OF APPLICATIONS FOR ANNULMENT .
6 UNDER ARTICLE 16 ( 4 ) OF REGULATION NO 120/67/EEC OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OJ OF 19 . 6 . 1967, P . 2269 ) AS AMENDED BY ARTICLE 6 ( 3 ) OF REGULATION NO 2429/72 OF THE COUNCIL OF 21 NOVEMBER 1972 ( OJ L 264 OF 23 . 11 . 1972 ) THE EXPORTERS OF CERTAIN CEREALS ARE AUTHORIZED TO REQUEST ADVANCE FIXING OF THE REFUNDS TO WHICH ARTICLE 16 ( 1 ) ENTITLES THEM .
7 UNDER THIS SAME PROVISION THE REFUNDS THUS FIXED IN ADVANCE AT THE AMOUNT IN FORCE ON THE DAY OF THE APPLICATION, ARE NEVERTHELESS SUBJECT TO MONTHLY ADJUSTMENTS IN ACCORDANCE WITH THE THRESHOLD PRICE IN FORCE DURING THE MONTH OF EXPORTATION .
8 THE THRESHOLD PRICES, LAID DOWN IN RELATION TO THE TARGET PRICES WHICH ARE UNDER ARTICLE 2 OF REGULATION NO 120/67 FIXED FOR A COMPLETE MARKETING YEAR, ARE, IN THEIR TURN, UNDER ARTICLE 6 OF THAT REGULATION, SUBJECT TO MONTHLY ALTERATIONS JUSTIFIED, ACCORDING TO THE EIGHTH RECITAL IN THE PREAMBLE TO THE SAME REGULATION, BY THE NECESSITY TO TAKE ACCOUNT, AMONG OTHER THINGS, OF STORAGE COSTS AND INTEREST CHARGES FOR STORING CEREALS IN THE COMMUNITY AND OF THE NEED TO ENSURE THAT THE DISPOSAL OF STOCKS CONFORMS TO MARKET REQUIREMENTS .
9 THUS THESE MONTHLY ALTERATIONS IN THE THRESHOLD PRICE HAVE REPERCUSSIONS ON THE AMOUNT OF THE REFUNDS EVEN IN CASES WHERE THESE ARE FIXED IN ADVANCE .
10 DURING THE YEAR 1974, TO TAKE ACCOUNT OF THE EFFECTS OF GENERAL INFLATION ON AGRICULTURE, THE COUNCIL BY REGULATION NO 2496/74 OF 2 OCTOBER 1974 ( OJ L 268 OF 3 . 10 . 1974 ) BY DEROGATION FROM THE RULE CONCERNING THE FIXING OF TARGET PRICES AND INTERVENTION PRICES FOR A COMPLETE MARKETING YEAR, DECIDED UPON A SINGLE AND EXCEPTIONAL INCREASE OF APPROXIMATELY 5 PER CENT IN THOSE PRICES DURING THE MARKETING YEAR AS CONCERNS CERTAIN PRODUCTS INCLUDING CEREALS . THIS TOOK EFFECT ON 7 OCTOBER 1974 .
11 AS FROM THE SAME DATE THAT INCREASE AFFECTED THE THRESHOLD PRICES AND CONSEQUENTLY THE AMOUNT OF THE REFUNDS .
12 THE COMMISSION HOWEVER, ENTRUSTED BY ARTICLE 4 OF REGULATION NO 2496/74 WITH ADOPTING THE DETAILED RULES FOR THE APPLICATION OF THE REGULATION 'WHERE APPROPRIATE BY DEROGATION FROM THE RULES FOR FIXING CONTAINED IN THE REGULATIONS CONCERNED', DECIDED IN THE CONTESTED REGULATION THAT THIS INCREASE IN THE THRESHOLD PRICES SHOULD NOT BE FOLLOWED BY A CORRESPONDING INCREASE IN EXPORT REFUNDS FOR EXPORTS WHICH WERE THE SUBJECT OF ADVANCE FIXING WHERE THE APPLICATION WAS LODGED PRIOR TO 7 OCTOBER 1974 .
13 ACCORDING TO THE THIRD RECITAL IN THE PREAMBLE TO THE CONTESTED REGULATION THAT EXCLUSION IS JUSTIFIED ON THE GROUND THAT BECAUSE OF THE ABOLITION, ESPECIALLY SINCE 26 JULY 1974 AS CONCERNS THE CEREALS EXPORTED BY THE APPLICANT, OF ANY REFUND, THE DURATION OF VALIDITY OF THE LICENCES INVOLVING ADVANCE FIXING OF THE REFUND AND NOT YET USED BY 7 OCTOBER WAS TO EXPIRE SHORTLY SO THAT IT MIGHT THEREFORE BE ASSUMED THAT THE PRODUCTS TO BE EXPORTED 'UNDER SUCH LICENCES HAVE ALREADY BEEN SOLD ON THE COMMUNITY MARKET AT PRICES DETERMINED BY THE COMMON PRICE LEVEL OBTAINING BEFORE 7 OCTOBER 1974 '.
14 THE CONTESTED MEASURE, BY DENYING TO A CLASS OF TRADERS THE BENEFIT OF AN INCREASE IN THE AMOUNT OF REFUNDS FOR SPECIFIC EXPORTS WHICH WAS ON THE CONTRARY GRANTED TO THOSE WHOSE APPLICATIONS FOR ADVANCE FIXING WERE MADE AT A LATER DATE, DIRECTLY CONCERNS THE SAID TRADERS .
15 ON THE OTHER HAND IT APPLIES TO A FIXED AND KNOWN NUMBER OF CEREAL EXPORTERS AS WELL AS, IN RESPECT OF EACH OF THEM, TO THE AMOUNT OF THE TRANSACTIONS FOR WHICH ADVANCE FIXING HAD BEEN REQUESTED .
16 THIS IS ALL THE MORE SO BECAUSE, AS REFUNDS WERE ABOLISHED AS FROM 26 JULY, THE CATEGORY OF TRADERS AFFECTED IS REDUCED TO THOSE WHO, HAVING HAD ADVANCE FIXING BEFORE 26 JULY 1974, STILL HAD CURRENT EXPORT LICENCES ON 7 OCTOBER .
17 IT APPEARS FROM THE ABOVEMENTIONED RECITAL THAT THE DISTINCTION DRAWN IN RESPECT OF THEM IS BASED ON THE PRESUMPTION THAT THEY WERE ALREADY PREVIOUSLY COVERED IN RESPECT OF EXPORTS NOT YET EFFECTED ON 7 OCTOBER AT PRICES NOT YET AFFECTED BY THE INCREASE WHICH WAS TO TAKE EFFECT ON THAT DATE .
18 BY ADOPTING THESE DISTINGUISHING CRITERIA THE CONTESTED MEASURE AFFECTS A FIXED NUMBER OF TRADERS IDENTIFIED BY REASON OF THE INDIVIDUAL COURSE OF ACTION WHICH THEY PURSUED OR ARE REGARDED AS HAVING PURSUED DURING A PARTICULAR PERIOD .
19 SUCH A MEASURE, EVEN IF IT IS ONE OF A NUMBER OF PROVISIONS HAVING A LEGISLATIVE FUNCTION, INDIVIDUALLY CONCERNS THE PERSONS TO WHOM IT APPLIES IN THAT IT AFFECTS THEIR LEGAL POSITION 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 .
20 THE APPLICATION IS ADMISSIBLE . THE SUBSTANCE OF THE CASE
21 THE APPLICANT CLAIMS FIRST THAT THE COMMISSION HAD NO POWER TO ADOPT ON 4 OCTOBER 1974 AN IMPLEMENTING MEASURE IN RESPECT OF REGULATION NO 2496/74 OF 2 OCTOBER 1974, WHILST THAT REGULATION, ACCORDING TO ARTICLE 5, WAS NOT TO BECOME APPLICABLE UNTIL 7 OCTOBER .
22 REGULATION NO 2496/74 OF THE COUNCIL, ALTHOUGH IT PROVIDED THAT THE MEASURES WHICH IT LAYS DOWN WERE ONLY TO BE APPLICABLE FROM 7 OCTOBER, PROVIDES HOWEVER THAT IT WAS TO ENTER INTO FORCE ON THE DATE OF ITS PUBLICATION IN THE OFFICIAL JOURNAL, THAT IS ON 3 OCTOBER 1974 .
23 FROM THE DATE OF ENTRY INTO FORCE THE COMMISSION WAS ENTITLED UNDER POWERS CONFERRED ON IT BY ARTICLE 4 OF THE REGULATION, TO LAY DOWN IMPLEMENTING MEASURES PROVIDED THAT THEY DID NOT VARY THE INTENDED DATE OF APPLICATION .
24 SUCH IS NOT THE CASE AS THE CONTESTED MEASURE PROVIDES THAT IT SHOULD ENTER INTO FORCE ON 7 OCTOBER 1974 .
25 THIS SUBMISSION MUST BE REJECTED .
26 THE APPLICANT CLAIMS IN THE SECOND PLACE THAT THE COMMISSION, BY ADOPTING THE CONTESTED MEASURE, EXCEEDED THE LIMITS OF THE POWERS WHICH THE COUNCIL HAD CONFERRED UPON IT BY ARTICLE 4 OF REGULATION NO 2496/74 .
27 ARTICLE 4 OF REGULATION NO 2496/74 BY CONFERRING ON THE COMMISSION UNDER ARTICLE 155 OF THE TREATY THE POWERS NECESSARY FOR THE IMPLEMENTATION OF THE RULES WHICH IT LAYS DOWN, PROVIDES THAT THAT INSTITUTION MAY AT THE SAME TIME AS IT ADOPTS DETAILED RULES FOR THE APPLICATION OF THE REGULATION, MAKE ALTERATIONS TO THE PRICES AND AMOUNTS FIXED WITHIN THE CONTEXT OF THE COMMON AGRICULTURAL POLICY AND THAT IT MAY DO SO 'WHERE APPROPRIATE BY DEROGATION FROM THE RULES FOR FIXING CONTAINED IN THE REGULATIONS CONCERNED TO THE EXTENT AND FOR THE DURATIONS STRICTLY NECESSARY TO TAKE INTO ACCOUNT THIS REGULATION .
28 THAT PROVISION EXPRESSLY CONFERS ON THE COMMISSION POWER TO MODIFY THE RULES FOR FIXING THE AMOUNTS PAYABLE AS REFUNDS, SO THAT IN DECIDING THAT THE TRADERS WHO HAD ADVANCE FIXING ARRANGED BEFORE A CERTAIN DATE WOULD BE EXCLUDED FROM THE BENEFIT OF THE SUPPLEMENTARY REFUND, THE COMMISSION DID NOT EXCEED ITS POWERS .
29 THIS SUBMISSION MUST ALSO BE DISMISSED .
30 THE APPLICANT LASTLY CLAIMS THAT THE CONTESTED PROVISION INFRINGES THE VESTED RIGHTS WHICH IT POSSESSES UNDER ARTICLE 16 OF REGULATION NO 120/67 ACCORDING TO WHICH 'THE EXPORT REFUND APPLICABLE ON THE DAY ON WHICH THE APPLICATION FOR THE LICENCE IS LODGED, ( IS ) ADJUSTED ON THE BASIS OF THE THRESHOLD PRICE VALID IN THE MONTH OF EXPORTATION' OR AT LEAST THE LEGITIMATE EXPECTATION WHICH IT WAS ENTITLED TO HAVE IN THE CONTINUANCE OF THESE RULES FOR THE FUTURE .
31 EVEN IF THE APPLICANT WAS ENTITLED TO RELY UPON VESTED RIGHTS OR A LEGITIMATE EXPECTATION IN THE CONTINUATION OF INCREASES IN THE AMOUNT OF THE REFUND, LAID DOWN BY ARTICLE 16 OF REGULATION NO 120/67 AS IT APPLIED AT THE TIME OF THE REQUEST FOR ADVANCE FIXING, IT CANNOT TAKE ADVANTAGE OF SUCH A RIGHT OR SUCH A PROSPECT AS REGARDS THAT PART OF THE REFUND WHICH CORRESPONDS TO INCREASES IN THE THRESHOLD PRICE WHICH ARE ENTIRELY DIVORCED FROM THE OBJECTIVE OF ARTICLE 16, WHICH WERE UNFORESEEABLE AT THE TIME WHEN THE AMOUNT WAS FIXED IN ADVANCE AND WHICH IT IS THEREFORE CLEAR COULD NOT HAVE BEEN TAKEN INTO ACCOUNT AMONG THE REASONS WHICH IN JULY 1974 LED THE APPLICANT TO REQUEST ADVANCE FIXING .
32 THIS SUBMISSION MUST ALSO BE DISMISSED .
33 THE APPLICATION MUST BE DISMISSED .