Opinion of mr advocate-general reischl

Mr President,

Members of the Court,

The case with which we are dealing today is concerned with rules relating to the grant of subsidies, so-called production refunds, on the manufacture of a product obtained from maize, common wheat and potato starch, namely glucose with a high fructose content.

Article 11 of Council Regulation No 2727/75 on the common organization of the market in cereals (OJ L 281 of 1. 11. 1975, p. 1 ) lays down such a system of refunds; it provides that:

In view of the special situation of the market in the said starch products, and in order to keep the processing industry in the Community competitive in relation to the products of third countries and substitute products, this system of refunds seeks to ensure that the basic products used by the said industry can be obtained at prices lower than those resulting from the Community system.

Rules implementing this regulation were adopted by Council Regulation No 2742/75 of 29 October 1975 (OJ L 281 of 1. 11. 1975, p. 57). Moreover, Regulation No 2742/75 fixed the amounts of the refunds. They were between 10 and 16.30 units of account according to the basic product used.

This regulation was amended by Council Regulation No 1862/76 of 27 July 1976 (OJ L 206 of 31. 7. 1976, p. 3). On the one hand, having regard to the new cereal prices, the amounts of the refunds were increased to between 14 and 20 units of account. On the other hand, Article 2 of Regulation No 1862/76 provides however that the refund for the 1976/77 marketing year is to remain unchanged in respect of the abovementioned product, namely the manufacture of glucose having a high fructose content. Moreover it is provided that this refund shall no longer be granted as from the 1977/78 marketing year. In practice this is so arranged that although the starch manufacturers receive the refunds generally laid down, the Member States, as provided for in Article 5a (3) of Regulation No 2742/75 as amended, recover from manufacturers of glucose having a high fructose content such part of the refund which relates to the subsidized basic products used for the manufacture of glucose having a high fructose content and exceeds the rates in Regulation No 2742/75. As from the 1977/78 marketing year the whole of the refund granted is to be recovered from the abovementioned producers in accordance with Article 5a (1) (b) of Regulation No 2742/75.

On 31 August 1976 the Commission adopted Regulation No 2158/76 (OJ L 241 of 2. 9. 1976, p. 21) laying down rules for the application of Regulation No 2742/75. This provides that the manufacturers of glucose with a high fructose content must give regular information about their production and produce specific documents to the competent authorities of the Member States. Moreover the regulation lays down when the competent authorities of the Member States must fix the total amounts to be recovered from the individual manufacturers and the latest dates on which this repayment must be made.

The Koninklijke Scholten Honig undertaking which, with its subsidiaries, is a manufacturer of glucose with a high fructose content, considers the new system illegal for various reasons. On 20 October 1976 it accordingly brought the matter before the Court and claimed that Article 2 of Regulation No 1862/76 and Regulation No 2158/76 should be declared null and void.

Both the Council and the Commission have applied under Article 91 of the Rules of Procedure for a decision on a preliminary objection concerning the admissibility of these proceedings, which they consider as inadmissible.

Since as a result of these applications only the admissibility of the proceedings was dealt with on 1 March 1977, I have to give my opinion today on this question alone.

Since in the oral procedure the Council has dropped its obviously unjustified objections that the application was lodged out of time which were raised with regard to the contested regulation of the Council, there remain two objections. They originate essentially from the Council, because the Commission has on the whole referred to the Council's submissions in defence since no special arguments have been put forward in respect of the implementing regulation issued by the Commission. On the one hand the application is accordingly alleged to be inadmissible under Article 173 of the EEC Treaty because the contested measures are genuine regulations which cannot be said to be of individual concern to the applicant. On the other hand it is impossible to accept that they are of direct concern to the applicant.

I have the following particular observations on this:

1 Translated from the German.