JUDGMENT OF 1. 4. 1965 — CASE 40/64 SGARLATA v COMMISSION

In Case 40/64

THE COURT composed of: Ch. L. Hammes, President, A. M. Donner and R. Lecourt, Presidents of Chambers, L. Delvaux (Rapporteur), A. Trabucchi, W. Strauß and R. Monaco, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties on the objection of inadmissibility

Grounds of judgment

I — Admissibility

II — Costs

I —. Facts and procedure

II —. Conclusions of the parties

III —. Submissions and arguments of the parties on the objection of inadmissibility

A —. The applicant asserts in their request that since the contested measures were adopted in the form of regulations the application seems at first sight inadmissible, but that the soundness of an objection of inadmissibility may only be apparent.

B —. 1. The defendant, in its objection of inadmissibility, embarks on a refutation of the arguments advanced by the applicants which attempt to show that their application is admissible. (a) According to the applicants the provisions which they dispute cannot be general and abstract in scope because they are limited to stating reference prices by means of a simple practical calculation to be made on the basis of criteria in Regulation No 100. It is said that they consist of merely taking practical steps towards implementation in order to make applicable other general and abstract rules contained either in Regulation No 23 or in Regulation No 100. The defendant does not agree that something merely practical is involved. In the first place it is not correct to say that the Commission must undertake with the help of the Management Committee a simple practical calculation in accordance with the requirements of the two Regulations; these leave a considerable margin of discretion in assessing the situation on the market and determining the reference price. But even if it had to follow rigid criteria which did not permit any freedom of judgment, the measure of the Community body would still remain a legal measure producing compulsory effects for the Community bodies, Member States, and those concerned with the economy. In fact it determines the nature of the further measure whereby the Commission, after consulting the Management Committee, or possibly the Council in cases of conflict between the Commission and the Committee, decides to suspend imports or to introduce the countervailing charge. Furthermore it subjects Member States (including those which otherwise would have no intention at all of applying the safeguard measures on imports entering from third countries) and private importers to the Community power to order that imports be suspended or that the countervailing charge be levied when entry prices fall below the reference price so determined. Thus the disputed acts have nothing to do with non-compulsory statements such as for example an expert's report or the recommendation of a technical body, which a public authority takes note of before taking a given measure. Such fact-finding reports or recommendations do not have any compulsory effect, whereas on the contrary the Regulations at issue do have such an effect. Besides if the measures in question really consisted of merely taking practical steps towards implementation not only would they not be regulations, but they would not be decisions within the meaning of Article 189 of the Treaty either. They would not be subject to the requirements that they be published and that they should state the reasons on which they are based or to review by the Court etc.; and it does not seem that the applicants wish to arrive at such a conclusion. (b) According to the applicants the EEC Treaty gives originating legislative power to the Council alone, which means that it gives to it alone authority to put the principles which are embodied in the Treaty into effect by means of general and abstract provisions. Apart from the exceptional case of Article 91 (1) the Treaty only gives the Commission delegated legislative power, which by virtue of the last part of Article 155 can be exercised only within the limits and according to the rules fixed by the Council in each individual case. Thus it is argued that this power is by its very nature of an exceptional character and that it should be excluded when it is not explicitly or implicitly conferred by the provisions which assign to the Commission the task of putting regulations adopted by the Council into effect. If this reasoning be correct it clearly follows that the measures adopted by the Commission for putting the Regulation in question into effect are not themselves of the nature of regulations despite the nomenclature adopted, but are only of the nature of concrete administrative acts. The defendant cannot admit that the Treaty denied the Commission originating legislative power. It says that this power is also conferred by provisions of the Treaty other than Article 91 (2), for example in Article 10 (2), the first paragraph of Article 22 and in Article 48 (3) (d). However it does admit that in accordance with Article 43 (2) of the Treaty legislative provisions for introducing the common agricultural policy, including the creation of a common organization of the markets, are adopted by the Council (on a proposal from the Commission and after consulting the European Parliament). The defendant moreover observes that the regulations on agriculture have given powers to the Commission which are themselves in the nature of powers to make regulations. This leads the defendant to say that even if it be admitted that in the present case we are concerned with a delegated power (in the sense that it is not based directly on the Treaty but on regulations based in their turn on Article 43 of the Treaty) there is nothing to show why the provision creating this power must be considered as exceptional and must be interpreted restrictively. Article 43, which provides for the creation of a common organization of agricultural markets, requires not only that a set of legal provisions be prepared, but also that institutions be designated and given the task of putting the provisions into effect; this involves giving very wide powers to them, particularly to the Commission, including the power to draw up the. necessary implementing regulations. This authority is not an exceptional one but an ordinary one when it is remembered that it is the last indent of Article 155 which makes it possible for the Council to confer unlimited powers on the Commission for the implementation of the rules which the Council lays down. So far as applying Article 43 is concerned there was moreover an urgent and pressing need for a body capable of adopting the necessary provisions for bringing the common organization of agricultural markets into being speedily while keeping in contact with the national administrations concerned. Finally it is easy to show that it is for the Commission to fix the reference prices for fruit and vegetables after consulting the Management Committee. In the first place this power flows from the fourth subparagraph of Article 11 (2) of Regulation No 23, and is confirmed by Article 1 (1) of Regulation No 100. The Commission is not subjected to any restriction as to what form to give to the provision. And since it clearly consists of a provision which is general in scope the Commission obviously has the power to give it the form of a regulation. Thus the contested measures are regulations and as such are not open to direct challenge by individuals. (c) The efforts of the applicants to show that the Regulations which they dispute were in fact decisions addressed to Member States are of no avail because, for them to obtain the benefit of the second paragraph of Article 173, they would have had to show that they were dealing with decisions which, although made in the form of a regulation, are of direct and individual concern to them. The defendant observes that recourse to the concept of a legal interest in taking proceedings is considered unacceptable in the opinions of Mr Advocate-General Lagrange (Rec. 1962, pp. 932 et seq.) and Mr Advocate-General Roemer (Rec. 1964, p. 833). Thus the limitations prescribed by Article 173 on direct proceedings by private persons against measures of the institutions have a precise meaning, and they cannot be whittled away by interpretation, as the applicants would like. The applicants do not bring forward any fresh fact enabling their case to be distinguished from the Plaumann and Glucoseries Réunis cases. On the contrary since they are content to say that the contested provisions injure them individually, not as a class, but as individual producers, they seem to be simply unaware of the abovementioned case-law and to wish to strip the condition requiring individual concern of all effective significance. It is not enough to say that various producers of citrus fruits suffer the effects which the contested provisions may have on the situation in the market. What matters is whether they can be seen to suffer individually, because of matters appertaining to them personally, or because of their belonging to one economic sector. It cannot be said that the contested provisions were adopted with any particular producer of citrus fruits in mind. Moreover it would be wrong to think that the said provisions only concern those who fall into the class of producers of citrus fruits. In fact these Regulations concern everybody who is interested in these products (importers directly and exporters, producers and even consumers indirectly). 2. In support of its submission of inadmissibility, the defendant reminds the Court of its case-law on the interpretation of the second paragraph of Article 173 of the EEC Treaty. (a) If the contested instruments are indeed regulations the Court has decided that natural or legal persons are not entitled to make an application for the annulment of regulations adopted by the Council or the Commission (judgment of 14 December 1962Confederation nationale des producteurs de fruits et légumes v Council of the EEC, Rec. 1962, p. 917 and judgment of 14 December 1962Fédération nationale de la boucherie en gros des viandes v Council of the EEC, Rec. 1962, p. 958), According to the defendant moreover, it is not possible to dispute the general scope of the disputed Regulations which in fixing the reference price for certain agricultural products establish the conditions for a general prohibition on imports, or the fixing of one and the same countervailing charge for the whole Community, payable by any person importing these products into the Community from third countries. (b) Even if the contested instruments are decisions addressed to the Member States and of such a nature as to concern all producers of citrus fruits in the Community, the applicant must be declared inadmissible in accordance with the case-law of the Court according to which Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the person addressed (judgment of 15 July 1963, Plaumann & Co. v Commission of the EEC, Rec. 1963, p. 223 and judgment of 2 July 1964, Glucoseries Réunies v Commission of the EEC, Rec. 1964, p. 823). The defendant asserts that the contested measures are not of individual concern to the applicants. In fact, according to the defendant, apart from Member States the measures in question concern the large class of importers of citrus fruits from third countries, in so far as they are affected by a prohibition or a charge on imports, should the entry price go below the reference price. The provision indirectly affects exporters in third countries and, because of the indirect effect on prices in the market, consumers and producers of citrus fruits within the Community as well. Not only are very large classes affected but, more importantly, these classes are determined in an abstract and general way so that any particular person belonging to one of these classes cannot say that he is concerned individually. Finally neither the applicants nor any other particular persons were considered in the contested provisions in the light of a situation peculiar to them. Therefore the applicants are not affected individually, but only by reason of their membership of the group, defined in an abstract way, of all those persons who may wish to import, export, produce or consume citrus fruits in the Common Market during the 1964-1965 season.

C —. The applicants reply in their memorandum of submissions:

I —. Admissibility

II —. Costs

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to Articles 173 and 189 of the EEC Treaty; Having regard to the Protocol on the Statute of the Court of Justice of the EEC; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; Having regard to Regulation No 23 of the Council of the EEC dated 4 April 1962 and to Regulation No 100 of the Commission of the EEC dated 27 July 1962; THE COURT hereby:

1 Dismisses Application 40/64 as inadmissible;

2 Orders the applicants to pay the costs.