C-100/74

JUDGMENT OF 18. 11. 1975 — CASE 100/74 CAM. v COMMISSION

CELEX: 61974CJ0100
Datum: 1975-11-18
Källa: eur-lex.europa.eu

THE COURT composed of: R. Lecourt, President, A. M. Donner, J. Mertens de Wilmars, P. Pescatore, M. Sørensen, Lord Mackenzie Stuart and A. O'Keeffe, Judges, Advocate-General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

Law

Admissibility

The substance of the case

Costs

I —. Facts and procedure

1. Article 16 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. 2276) governs the fixing and the payment of export refunds on certain of these products, including barley.

II —. Conclusions of the parties

a). declare its application for the annulment of the Community measure entitled Regulation (EEC) No 2546/74 of the Commission of 4 October 1974 to be admissible and well founded;

b). annul the said measure in its entirety, or, in the alternative, annul it at least to the extent to which it decided that, as regards the products coming under Regulation No 120/67, the export refunds which were the subject of advance fixing and in respect of which the application was lodged prior to 7 October 1974, should not be adjusted in relation to that part of the increase in the threshold price which resulted from the increase in agricultural prices on 7 October 1974;

c). order the European Economic Community appearing through the Council of the European Community and the Commission of the European Community to pay all costs.

III —. Submissions and arguments of the parties

1. The applicant considers its application to be admissible because Regulation No 2546/74 of the Commission does not amount to a provision having general application within the meaning of the second paragraph of Article 189 of the Treaty, but constitutes a group of individual decisions in the form of a regulation, directly and individually concerning a limited number of addressees, including the applicant. It relies in this respect upon the judgments of the Court in Joined Cases 16 and 17/62 (Judgment of 14 December 1962, Confederation nationale des producteurs de fruits et legumes, [1962] ECR 471), and Joined Cases 41 to 44/70 (Judgment of 13 May 1971, International Fruit Company, Rec. 1971, p. 411), which stressed the distinction between decisions in the form of a regulation within the meaning of the second paragraph of Article 173 and regulations properly so called on the basis of the limited number of persons or undertakings liable to be affected by the contested measure and the fact that this number was known at the time of the adoption of the contested measure.

2. Moving to an examination of the substance of the case, the applicant claims that the contested measure infringed, on the one hand, Regulation No 120/67 of the Council and, on the other, the principle of the protection of legitimate expectation. The Commission could not of its own authority decide that certain provisions of a Council regulation, in the present case, Article 16 (4) of Regulation No 120/67, should not be applied. It is true that paragraph (6) of the same Article 16 provides that the Commission is to lay down detailed rules for the application of that article, but this conferment of authority does not authorize it to decide upon the non-application of that article to export refunds which were the subject of advance fixing before 7 October 1974.

3. In its statement of defence the Commission disputes the admissibility of the application. It considers, in the first place, that Regulation No 2546/74 constitutes a measure having a legislative function and that, in any case, the applicant is not individually concerned, within the meaning of the second paragraph of Article 173, by that measure.

4. As regards the substance of the case the Commission emphasizes in the first place that the decision to increase agricultural prices was not only exceptional but also unforeseeable at the time when the applicant obtained the licences for which the disputed refunds had been fixed in advance. Examining next the economic justification for the contested regulation, the Commission mentions that the adjustment of the refunds and levies to the increase in the threshold price, a consequence of the exceptional rise in agricultural prices, had unjustified consequences for importers and exporters with advance fixing settled prior to that increase. For importers it resulted in an unforeseeable extra charge. For exporters an extra increase in the refund would have amounted to an undue benefit. The last time refunds were fixed was in the month of July when an alteration in threshold prices was not foreseeable.

5. In its statement in reply the applicant maintains that Regulation No 2546/74 was applicable only to a fixed number of addressees perfectly known or identifiable and cannot consequently be regarded as a measure having a legislative function. It is moreover factually untrue that this regulation is closely linked to Regulations Nos 2496/74 of the Council and 2518/74 of the Commission and forms an indissoluble whole with them. According to the very wording of the recitals in the preamble to Regulation No 2546/74 its provisions had the sole purpose of preventing the adjustment of the levies on imports and refunds on exports related to the increase in threshold prices of 7 October 1974 from having the effect of increasing such levies and refunds in a manner for which there is no economic justification. The applicant considers that the provisions of Regulation No 2546/74 concern it individually since it was the holder of an export licence, valid until 16 October 1974, for which the refund had been fixed in advance, and in respect of which on 7 October it still had 3978 tons to export. It is therefore admissible for it to ask for the annulment, if not of the whole of Regulation No 2546/74, then at least of its provisions concerning export refunds which were the subject of advance fixing.

6. In its rejoinder the Commission admits that, logically, the contested regulation is not indispensable to the application of Regulations Nos 2496/74 of the Council and 2518/74 of the Commission. From the point of view of their economic objectives however, the three regulations must be regarded as a whole. The Commission relies on the judgment of the Court of 16 April 1970 (Case 64/69, Compagnie française commerciale et financière v Commission, [1970] ECR 227) in which the Court held that a transitional provision could be an integral part of the former and of the new provisions which it is designed to reconcile and consequently can partake of their general nature.

7. On the substance of the case the Commission mentions as to its powers that Regulation No 2496/74 of the Council, on which it bases its powers, although applicable as from 7 October, entered into force on the day of its publication in the Official Journal, that is on 3 October 1974. The contested Regulation No 2546/74 which was adopted on 4 October, entered into force on the day on which Regulation No 2496/74 became applicable, that is on 7 October. Further and in the alternative, the Commission claims that it had the power to adopt implementing provisions even before the entry into force of the regulation of the Council which conferred power upon it, having regard to the coincidence of the dates of implementation and the urgency of the situation. Regulation No 2546/74 certainly comes under the provisions of Article 4 of Regulation No 2496/74 of the Council, because that article was deliberately drafted widely, having regard to the unusual and exceptional nature of an alteration in prices during a marketing year, which was liable to lead to unforeseeable consequences.

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.

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 % 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.

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 w, as 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.

34. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

35. The applicant has failed in its submissions.

On those grounds, THE COURT hereby:

1 See p. 1417.