1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 10 AUGUST 1981 , AGRICOLA COMMERCIALE OLIO SRL , ASTOLIO SRL , AZIENDA AGRICOLA BELLARIA SPA , ITALIANA OLII E RISI SPA AND SAN GIORGIO SEZIONE AGRICOLTURA SPA BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT COMMISSION REGULATION NO 2238/81 OF 3 AUGUST 1981 REPEALING REGULATION NO 71/81 ON THE SALE OF OLIVE OIL HELD BY THE ITALIAN INTERVENTION AGENCY ( OFFICIAL JOURNAL L 218 , P . 27 ), AND COMMISSION REGULATION NO 2239/81 OF 3 AUGUST 1981 RE-OPENING THE SALE BY TENDER OF OLIVE OIL HELD BY THE ITALIAN INTERVENTION AGENCY ( OFFICIAL JOURNAL L 218 , P . 28 ), ARE VOID .
2 ARTICLE 12 OF REGULATION NO 136/66 ON THE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN OILS AND FATS ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1965-1966 , P . 221 ), AS AMENDED BY COUNCIL REGULATION NO 1562/78 OF 29 JUNE 1978 ( OFFICIAL JOURNAL L 185 , P . 1 ), OBLIGES THE INTERVENTION AGENCIES DESIGNATED BY THE PRODUCER MEMBER STATES , AS A MEANS OF STABILIZING THE OLIVE OIL MARKET , TO BUY IN , UNDER CERTAIN CONDITIONS AND AT THE INTERVENTION PRICE FIXED FOR THE MARKETING YEAR INVOLVED , OLIVE OIL OF COMMUNITY ORIGIN WHICH IS OFFERED TO THEM BY PRODUCERS . ACCORDING TO THE SECOND PARAGRAPH OF THAT ARTICLE , THE INTERVENTION AGENCIES ARE TO SELL WITHIN THE COMMUNITY THE OLIVE OIL BOUGHT IN BY THEM UNDER CONDITIONS SUCH THAT THE MARKET AT THE PRODUCTION STAGE IS NOT DISTURBED .
3 THE SALE OF THE OLIVE OIL HELD BY THE INTERVENTION AGENCIES WAS GOVERNED BY COMMISSION REGULATION NO 2960/77 OF 23 DECEMBER 1977 ON DETAILED RULES FOR THE SALE OF OLIVE OIL HELD BY INTERVENTION AGENCIES ( OFFICIAL JOURNAL L 348 , P . 46 ) AND COUNCIL REGULATION NO 2754/78 OF 23 NOVEMBER 1978 ON INTERVENTION IN THE OLIVE OIL SECTOR ( OFFICIAL JOURNAL L 331 , P . 13 ). THE PREAMBLES TO THOSE TWO REGULATIONS EMPHASIZE THAT THE SALE IS TO TAKE PLACE WITHOUT ANY DISCRIMINATION BETWEEN COMMUNITY PURCHASERS AND ON THE MOST FAVOURABLE ECONOMIC TERMS , AND THAT SALE BY TENDER APPEARS TO BE THE MOST APPROPRIATE SYSTEM FOR THAT PURPOSE . FOR THAT REASON , ARTICLE 2 ( 1 ) OF BOTH REGULATIONS PROVIDES THAT ANOTHER SELLING PROCEDURE MAY BE USED ONLY WHERE SPECIAL CONDITIONS SO WARRANT . FINALLY , THE PREAMBLE TO REGULATION NO 2960/77 EXPRESSLY DECLARES THAT WHERE THERE IS A RISK OF MARKET DISTURBANCE , PROVISION IS TO BE MADE FOR LIMITING THE QUANTITY WHICH MAY BE AWARDED TO ANY ONE TENDERER .
4 BY REGULATION NO 71/81 OF 12 JANUARY 1981 ( OFFICIAL JOURNAL L 11 , P . 5 ), THE COMMISSION DECIDED THAT THE ITALIAN INTERVENTION AGENCY ( AIMA ) SHOULD PUT UP FOR SALE SOME 33 000 TONNES OF VIRGIN OLIVE OIL FROM INTERVENTION PURCHASES MADE DURING THE 1977-78 OLIVE MARKETING YEAR , DIVIDED INTO SIX LOTS OF ABOUT 5 500 TONNES EACH , AT A FIXED PRICE OF LIT 210 000 PER 100 KG . IT WAS STATED IN THE PREAMBLE TO THE REGULATION THAT THE OLIVE OIL PURCHASED BY THE ITALIAN INTERVENTION AGENCY DURING THE SAID MARKETING YEAR HAD BEEN PUT UP FOR SALE BY TENDER ON SEVERAL OCCASIONS BUT IT HAD ONLY BEEN POSSIBLE TO SELL A SMALL PROPORTION OF THAT OIL . THE PREAMBLE ALSO STATED THAT THE EXISTING MARKET SITUATION WAS SUITABLE FOR PUTTING THE OIL UP FOR SALE AGAIN AND THAT PRODUCTION OF OLIVE OIL IN THE 1980/71 MARKETING YEAR WAS EXPECTED TO BE PLENTIFUL . HOWEVER , SO AS NOT TO INTERFERE WITH THE NORMAL SALE OF PRODUCTION FROM THAT MARKETING YEAR , IT WAS STATED THAT THE PURCHASERS OF THE OIL SHOULD BE OBLIGED TO REFINE IT OR MARKET IT OUTSIDE THE ITALIAN AND GREEK MARKETS .
5 THE REGULATION PROVIDED THAT SALES WERE TO COMMENCE ON THE TENTH DAY FOLLOWING POSTING OF THE NOTICE OF SALE AND THAT LOTS WERE TO BE AWARDED IN THE ORDER OF SUBMISSION OF APPLICATIONS TO PURCHASE , UNTIL THE LOTS PUT UP FOR SALE HAD ALL BEEN DISPOSED OF . IF APPLICATIONS TO PURCHASE WERE SUBMITTED ON THE SAME DAY FOR THE SAME LOT , AIMA WAS TO DESIGNATE AS PURCHASER THE APPLICANT WHO SUBMITTED APPLICATIONS TO PURCHASE SEVERAL LOTS OR , WHERE THAT WAS IMPOSSIBLE , AIMA WAS TO DETERMINE THE PURCHASER BY DRAWING LOTS . FINALLY , THE OIL WAS TO BE WITHDRAWN EVERY 30 DAYS FROM 15 MARCH 1981 , IN QUANTITIES EQUAL TO AT LEAST 10% AND AT MOST 20% OF THE PURCHASED QUANTITY . THE PURCHASER WAS TO PAY THE PURCHASE PRICE FOR EACH LOT OF OIL WITHDRAWN NOT LATER THAN THE END OF THE FIFTH MONTH FOLLOWING THAT IN WHICH THE QUANTITY CONCERNED WAS WITHDRAWN .
6 ON 2 FEBRUARY 1981 , THE FIRST DAY ON WHICH APPLICATIONS TO PURCHASE COULD BE SUBMITTED , 60 UNDERTAKINGS SUBMITTED SUCH APPLICATIONS , EACH BEING FOR ALL OF THE LOTS PUT UP FOR SALE . THE AWARD OF LOTS WAS DELAYED , WITH THE AGREEMENT OF THE COMMISSION , BECAUSE CERTAIN TRADERS CONTESTED THE ADMISSIBILITY OF APPLICATIONS SUBMITTED BY OTHER UNDERTAKINGS . THE DRAWING OF LOTS PROVIDED FOR IN THE REGULATION DID NOT TAKE PLACE THEREFORE UNTIL 1 JUNE 1981 , AND DESIGNATED THE APPLICANTS IN THE PRESENT CASE , AS WELL AS ANOTHER UNDERTAKING ( THE APPLICANT IN CASE 264/81 ), AS PURCHASERS OF ONE LOT EACH .
7 ON 3 AUGUST 1981 , THE COMMISSION ADOPTED THE FIRST OF THE REGULATIONS WHICH THE APPLICANT SEEKS TO HAVE DECLARED VOID , NAMELY REGULATION NO 2238/81 REPEALING , WITH EFFECT FROM 13 JANUARY 1981 , THE AFOREMENTIONED REGULATION NO 71/81 . IN THE PREAMBLE TO REGULATION NO 2238/81 THE COMMISSION STATED THAT THE SALE HAD BEEN DELAYED AS A RESULT OF THE INQUIRY UNDERTAKEN INTO THE ABOVE-MENTIONED COMPLAINTS , BUT THAT THE CONSIGNMENTS PUT UP FOR SALE HAD FINALLY BEEN ALLOTTED TO TENDERERS IN ACCORDANCE WITH THE PROVISIONS OF REGULATION NO 71/81 . THE COMMISSION WENT ON TO SAY : ' ' . . . MEANWHILE , THE CONDITIONS ON THE OLIVE OIL MARKET HAVE ALTERED SO THAT TO MAKE THE SALE ON THE CONDITIONS ORIGINALLY LAID DOWN WOULD RESULT IN SERIOUS DISTURBANCE ON THE MARKET ; . . . IN PARTICULAR , QUANTITIES COULD BE SOLD BY THESE OPERATORS AT PRICES WHICH WOULD SHUT OTHER OPERATORS OUT OF THE MARKET ' ' , AND ACCORDINGLY ' ' IT IS NECESSARY , IN THE OVERRIDING GENERAL INTEREST , TO CANCEL THE SALE IN QUESTION ' ' . FINALLY , MEASURES WERE TO BE TAKEN IN PARALLEL IN ORDER TO TAKE ACCOUNT OF THE SITUATION OF THE OPERATORS TO WHOM LOTS HAD BEEN ALLOCATED .
8 THOSE MEASURES WERE THE SUBJECT OF REGULATION NO 2239/81 OF THE SAME DATE , WHICH IS THE SECOND OF THE REGULATIONS AT ISSUE , AND BY VIRTUE OF WHICH THE OLIVE OIL REFERRED TO IN REGULATION NO 71/81 WAS TO BE PUT UP FOR SALE BY TENDER IN SIX LOTS , THE SALE BEING ' ' RESERVED FOR TENDERERS DESIGNATED PURSUANT TO . . . REGULATION ( EEC ) NO 71/81 ' ' . THE OIL WAS TO BE SOLD NOT LATER THAN 10 SEPTEMBER 1981 AND WITHDRAWN IN LOTS COMMENCING ON 15 SEPTEMBER 1981 . THE PURCHASER WAS TO PAY THE PURCHASE PRICE FOR EACH OF THOSE LOTS AT THE TIME OF WITHDRAWAL .
9 AT THE REQUEST OF THE APPLICANTS THE PRESIDENT OF THE COURT MADE AN ORDER ON 21 AUGUST 1981 (( 1981 ) ECR 2193 ) PARTIALLY SUSPENDING THE APPLICATION OF REGULATION NO 2239/81 INASMUCH AS THE APPLICANTS WERE , IN RESPECT OF THE LOT WHICH HAD BEEN ALLOCATED TO EACH OF THEM ON THE BASIS OF THEIR TENDERS , TO BE REQUIRED TO PAY ONLY SO MUCH OF THE PRICE TENDERED AS WAS EQUAL TO THE AMOUNT WHICH THEY WOULD HAVE HAD TO PAY UNDER THE TERMS OF THE SALE UNDERTAKEN UNDER REGULATION NO 71/81 . PAYMENT OF THE REMAINDER WAS SUSPENDED UNTIL THE COURT HAD GIVEN JUDGMENT IN THE MAIN ACTION . ADMISSIBILITY
10 THE COMMISSION EXPRESSES DOUBT AS TO THE ADMISSIBILITY OF THE ACTION . IT POINTS OUT THAT THE PROVISIONS IN THE REGULATIONS AT ISSUE ARE OF A GENERAL AND ABSTRACT CHARACTER AND THAT THEY ARE THEREFORE NOT OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANTS WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY . THE COMMISSION STATES THAT WHEN THOSE REGULATIONS WERE ADOPTED , AIMA HAD NOT YET SENT LETTERS TO THE APPLICANTS ALLOCATING THE LOTS AT ISSUE TO THEM . IT IS THOSE LETTERS OF ALLOCATION WHICH CLOSED THE SALE PROCEDURE AND DECLARED THE APPLICANTS OWNERS OF THE LOTS .
11 IN THAT CONNECTION , IT SHOULD BE EMPHASIZED THAT REGULATION NO 71/81 FIXES UNCONDITIONALLY NOT ONLY THE PRICE AND THE QUANTITIES OF OIL PUT UP FOR SALE , BUT ALSO ALL THE OTHER CONDITIONS OF SALE , LEAVING NO PLACE FOR ADDITIONAL CONTRACTUAL STIPULATIONS . THE APPLICATIONS TO PURCHASE COULD NOT BE WITHDRAWN AND THE REGULATION PROVIDED THAT DESIGNATION OF THE PURCHASERS FROM AMONG THOSE WHO SUBMITTED APPLICATIONS WAS TO BE BY THE DRAWING OF LOTS , WITHOUT THE EFFECT OF THE LATTER BEING SUBJECT TO ANY ' ' LETTER OF ALLOCATION ' ' BEING SENT . THUS FROM THE TIME WHEN LOTS WERE DRAWN , AT THE VERY LATEST , THE SITUATION AS BETWEEN THE PARTIES TO THE SALE WAS DETERMINED . REGARDLESS OF WHEN OWNERSHIP WAS TRANSFERRED , IT FOLLOWS THAT ANY INTERVENTION ON THE PART OF THE COMMUNITY INSTITUTIONS PREVENTING AIMA FROM CARRYING OUT ITS OBLIGATIONS TO THE TENDERERS DESIGNATED BY THE DRAWING OF LOTS NECESSARILY CONSTITUTES A MEASURE OF DIRECT AND INDIVIDUAL CONCERN TO THEM . CONSEQUENTLY , THE APPLICATION IS ADMISSIBLE . SUBSTANCE
12 THE APPLICANTS ' PRINCIPAL SUBMISSION IS THAT REGULATION NO 2238/81 INFRINGES THE GENERAL PRINCIPLE THAT A MEASURE CANNOT BE REPEALED IF THAT WOULD PREJUDICE THE ACQUIRED RIGHTS OF THIRD PARTIES . THEY CONTEND THAT EVEN IF IT IS REGARDED AS AN EXPROPRIATION MEASURE , THE REGULATION IS UNLAWFUL BY REASON OF THE FACT THAT THE COMPENSATION OFFERED IS INADEQUATE . MOREOVER , THE APPLICANTS CONTEST THE COMMISSION ' S STATEMENTS IN THE PREAMBLE TO THE REGULATION REGARDING THE DEVELOPMENT OF THE OLIVE OIL MARKET AND THE EFFECT ON THAT MARKET OF THE SALE WHICH HAD BEEN CONTRACTED FOR . IN THE APPLICANT ' S VIEW , THE COMMISSION TOOK FALSE PREMISES AND MADE MANIFEST ERRORS OF FACT . MOREOVER , THERE WAS A MISUSE OF POWERS , SINCE THE PURPOSE OF THE REGULATIONS WAS NOT TO PROTECT THE MARKET BUT TO DEPRIVE THE APPLICANTS OF THEIR PROFITS .
13 THE ONLY REASON GIVEN BY THE COMMISSION TO JUSTIFY THE RETROACTIVE REPEAL OF REGULATION NO 71/81 IS THAT CARRYING OUT THE SALE ON THE CONDITIONS ORIGINALLY LAID DOWN WOUD HAVE RESULTED IN SERIOUS DISTURBANCE OF THE OLIVE OIL MARKET . IT STATES THAT DURING THE PERIOD WHICH ELAPSED BETWEEN THE ADOPTION OF THE FIRST REGULATION AND THAT OF THE SECOND THE CONDITIONS ON THAT MARKET HAD RADICALLY ALTERED . ON THE ONE HAND , THE 1980/81 HARVEST WAS MUCH BELOW WHAT HAD BEEN PREDICTED , AND ON THE OTHER , PRICES HAD INCREASED BEYOND WHAT HAD BEEN PREDICTED BECAUSE OF THE FALL IN PRODUCTION AND THE LIMITED QUANTITIES OF LAMPANTE GRADE OIL AVAILABLE ON THE WORLD MARKET , AS WELL AS THE DEVALUATION OF THE GREEN LIRA .
14 IN THOSE CIRCUMSTANCES , THE CONDITIONS OF SALE , WHICH WERE ALREADY FAVOURABLE , BECAME UNREASONABLY SO AND WOULD HAVE PERMITTED A LIMITED NUMBER OF TRADERS NOT ONLY TO MAKE ENORMOUS PROFITS AT THE EXPENSE OF THE EUROPEAN TAXPAYER BUT ALSO TO DOMINATE THE OLIVE OIL MARKET IN ITALY BY EXCLUDING FROM THAT MARKET ALL THE OTHER TRADERS , WHO COULD ONLY OBTAIN THAT TYPE OF OIL ON MUCH LESS FAVOURABLE CONDITIONS .
15 WITH REGARD TO THOSE ARGUMENTS , IT SHOULD FIRST BE EMPHASIZED THAT THE VERY NUMBER OF APPLICATIONS TO PURCHASE SUBMITTED ON THE FIRST DAY OF THE SALE SHOULD HAVE MADE THE COMMISSION REALIZE THAT THE CONDITIONS OF SALE WERE , EVEN THEN , EXTREMELY FAVOURABLE COMPARED TO NORMAL MARKET CONDITIONS . MOREOVER , THE MEANS OF OBSERVING MARKET CONDITIONS AT THE DISPOSAL OF THE COMMISSION SHOULD HAVE PERMITTED IT TO REVISE ITS FORECASTS REGARDING THE 1980/81 HARVEST LONG BEFORE THE CONTESTED REGULATIONS WERE ADOPTED .
16 FURTHERMORE , THE INFORMATION WHICH THE COURT HAS OBTAINED IN NO WAY CONFIRMS THE PROPOSITION THAT THE CHANGES RELIED UPON WERE OF AS RADICAL A NATURE AS THE COMMISSION STATES . THUS , A WITNESS WHOSE COMPETENCE WAS RECOGNIZED BY ALL THE PARTIES STATED THAT IT WOULD BE WRONG TO SAY THAT DURING THE PERIOD IN QUESTION THERE WAS A REAL SHORTAGE , AND THAT HE WAS NOT AWARE THAT THE REFINERIES HAD HAD ANY DIFFICULTY IN OBTAINING SUPPLIES OF LAMPANTE GRADE OIL . AS REGARDS PRICES , THE WITNESS DECLARED THAT THERE HAD BEEN AN INCREASE OF ABOUT 15% IN THE PRICE OF LAMPANTE GRADE OIL BETWEEN OCTOBER 1980 AND OCTOBER 1981 , AND THAT THAT DEVELOPMENT SHOULD BE REGARDED AS NORMAL HAVING REGARD TO SEASONAL FLUCTUATIONS , THE MONTHLY INCREASES IN THE INTERVENTION PRICE , THE DEVALUATION OF THE GREEN LIRA AND THE RATE OF INFLATION IN ITALY .
17 MOREOVER , THE COMMISSION HAS NOT EXPLAINED HOW A MARKET ON WHICH THERE IS A SHORTAGE AND ON WHICH PRICES ARE TENDING TO RISE COULD BE DISTURBED SOLELY BY THE ARRIVAL ON THAT MARKET , AT REGULAR INTERVALS , OF ADDITIONAL QUANTITIES OF THE PRODUCT LIKELY TO BE SOLD AT MODERATE PRICES . THE COMMISSION ADMITTED , IN PARTICULAR DURING THE ORAL PROCEDURE , THAT THE DISTURBANCE THAT IT FEARED WAS OF A MORE INDIRECT NATURE IN THE SENSE THAT THE PROFITS TO BE MADE BY THE UNDERTAKINGS WHO HAD BEEN SUCCESSFUL IN THE DRAWING OF LOTS WOULD HAVE ALLOWED THOSE UNDERTAKINGS TO OBTAIN CONTROL OF A SHARE OF THE MARKET TO WHICH THEY WERE NOT ENTITLED , THUS EXCLUDING OTHER TRADERS FROM THE SAME MARKET .
18 THE MERE FACT THAT THE CONDITIONS ON WHICH THE COMMISSION PERMITTED THE NATIONAL AGENCY TO PUT THE PRODUCTS UP FOR SALE PROVED TO BE FAVOURABLE , AND EVEN EXTREMELY FAVOURABLE , TO THE PURCHASERS , DOES NOT ENTITLE THE COMMISSION TO PREVENT THAT AGENCY FROM CARRYING OUT THE CONTRACT WHICH HAD BEEN CONCLUDED IN ACCORDANCE WITH THE SAID CONDITIONS . WITH REGARD TO THE POSSIBILITY OF AN ABUSIVE USE OF THOSE PROFITS IT SHOULD BE POINTED OUT THAT THE QUANTITY PUT UP FOR SALE WAS DIVIDED BETWEEN SIX INDEPENDENT UNDERTAKINGS . THE COMMISSION HAS NOT EVEN TRIED TO SHOW HOW AND WHY ONE OF THOSE UNDERTAKINGS WOULD HAVE USED THE PROFITS SO AS TO EXCLUDE , OR TO HAVE THE EFFECT OF EXCLUDING , OTHER TRADERS FROM THE MARKET .
19 IT APPEARS , THEREFORE , THAT THE ONLY GROUND RELIED UPON BY THE COMMISSION TO JUSTIFY THE REPEAL OF REGULATION NO 71/81 IS VITIATED BY ERRORS OF FACT . IT IS THEREFORE UNNECESSARY TO CONSIDER WHETHER , IN OTHER CIRCUMSTANCES , THE COMMISSION WOULD HAVE BEEN ENTITLED TO REPEAL THE SAID REGULATION RETROACTIVELY AND WHAT WOULD HAVE BEEN THE CONSEQUENCES OF SUCH A REPEAL AS REGARDS THE RIGHT OF THE UNDERTAKINGS TO COMPENSATION . REGULATION NO 2238/81 REPEALING REGULATION NO 71/81 MUST BE DECLARED VOID , AND CONSEQUENTLY REGULATION NO 2239/81 MUST ALSO BE DECLARED VOID .
20 WITH THAT POSSIBILITY IN MIND , THE COMMISSION ASKED THE COURT TO APPLY THE SECOND PARAGRAPH OF ARTICLE 174 AND TO DECLARE THAT THE REPEAL OF THE PERIODS OF TIME FOR PAYMENT LAID DOWN IN REGULATION NO 71/81 SHOULD BE REGARDED AS DEFINITIVE . THE COMMISSION EMPHASIZED THAT THOSE PERIODS TEND TO LOWER THE REAL PRICE EVEN FURTHER , WHEREAS THE NOMINAL PRICE IS ALREADY VERY FAVOURABLE .
21 THAT APPLICATION CANNOT BE ACCEPTED . THE SAID PERIODS FOR PAYMENT ARE PART OF THE GENERAL CONDITIONS OF SALE LAID DOWN IN REGULATION NO 71/81 . IN THE CIRCUMSTANCES OF THIS CASE , THE COURT DOES NOT CONSIDER THAT IT IS NECESSARY TO TREAT THAT CONDITION ANY DIFFERENTLY FROM THE CONDITION REGARDING PRICE .