Opinion of mr advocate general Reischl

Mr President,

Members of the Court,

The common organization of the market in beef and veal (Regulation No 805/68 of the Council, Official Journal, English Special Edition 1968 (I), p. 187), in order to ensure the competitiveness of the processing industry and to keep it supplied with frozen meat provides for a special import system — the complete or partial suspension of the levy on imports from non-member countries. The original arrangements were such that meat intended for the manufacture of tinned corned beef could be imported without any levy and any quantitative restrictions. In the case of meat intended for the manufacture of other products the levy was totally or partially suspended as respects quantities which were to be fixed in an estimate; if stocks held by the intervention agencies had reached a certain level the suspension could be made conditional on the purchase of specific quantities of the meat stored with these agencies.

In 1974 a market situation of crisis proportions — large surpluses accumulated on the Community market — necessitated the application of protective measures which were also applicable to the above-mentioned privileged imports. This was the situation until 1 April 1977.

In 1977, in order to protect the Common Market, the rules for trade with non-member countries as well as the special import system applicable to frozen meat processors was substantially altered. Article 14 of Regulation No 805/68 was amended by Council Regulation No 425/77 of 14 February 1977 (Official Journal, L 61 of 5 March 1977, p. 1) and now paragraph (1) (a) thereof provides for total suspension of the levy on meat intended for the manufacture of preserved food which does not contain characteristic components other than beef and jelly (corned beef) and paragraph 1 (b) provides for the total or partial suspension of the levy on meat intended for the manufacture of other products. For this purpose before 1 December each year the Council shall draw up an estimate of meat which may be imported under the special arrangements and this estimate shall mention separately the quantities of meat to be used for the above-mentioned purposes. Furthermore Article 14 (3) reads :

Then Article 14 (4) provides that the Management Committee in accordance with the procedure laid down in Article 27 shall determine:

Rules for the implementation of this provision have been adopted in several Commission regulations. Thus Commission Regulation No 585/77 of 18 March 1977 on the system of import and export licences for beef and veal (Official Journal 1977 L 75, p. 5), as amended by Commission Regulation No 1384/77 (Official Journal L 157 of 28 June 1977, p. 16) and Commission Regulation No 2901777 (Official Journal L 338 of 28 December 1977, p. 9), contains a description of the class of persons entitled to apply for a licence and provisions relating to the obligation to process the imported meat. In so far as Article 11a is relevant in this case it provides that:

Mention must be made of Commission Regulation No 597/77 (Official Journal L 76 of 24 March 1977, p. 1) laying down detailed rules for the application of special import arrangements for certain types of frozen beef intended for processing, Article 2 whereof provides that Article 14 (3) (b) of Regulation (EEC) No 805/68 may be applied when it is found that the quantities of frozen meat held by an intervention agency exceed or are likely to exceed 10000 tonnes. Reference must also be made to Commission Regulation No 2900/77 laying down detailed rules for the sale of beef held by the intervention agencies to enable the import with total suspension of the levy of frozen beef and veal intended for processing (Official Journal No L 338 of 28 December 1977, p. 6). Article 1 thereof provides:

Article 2 thereof provides:

According to Article 3 of this regulation tenders could be submitted only between 20 and 30 January 1978; they had to be for a total quantity of not less than five tonnes and not more than 100 tonnes. Article 4 provides that on the 18th day of each quarter (the first occasion was on 6 February 1978) the Member States shall inform the Commission of the list of tenderers and the quantities of products for which tenders have been submitted. Finally Article 5 states that different minimum prices may be fixed according to the use for which the meat is intended.

The Council estimate mentioned in Regulation No 805/68 of supply and demand for beef and veal in the processing industry for the period 1 January to 31 December 1978 was published in the Official Journal of 23 December 1977 (Official Journal L 330, p. 30). According to this estimate it was necessary to proceed on the basis of a deficit in meat for processing in 1978 of 50000 tonnes.

A General notice of periodic invitations to tender for the sale of frozen beef held by the intervention agencies to enable the import with total suspension of the levy of frozen beef and veal intended for processing was published in the Official Journal of 13 January 1978 (No C 11, p. 16). It quotes The regulations on which the sale is based and states that The goods will be sold to the highest bidders. Furthermore Section 6 (b) of this estimate provides:

and Section 6 (d) provides:

Page 34 of the same number of the Official Journal contains Notice of invitation to tender No It. P 1 — Regulation (EEC) No 2900/77 — for the sale of certain frozen unboned (bone-in) beef held in stock by the Italian intervention agency. It states inter alia the quantity of beef to be sold by the Italian intervention agency.

The applicant, the Simmenthal firm, which has since 1923, owned a canning factory specializing in the production of corned beef and — according to particulars which it supplied itself — processes annually about 20000 tonnes of beef and veal, also participated in this invitation to tender. However it had no chance of being awarded a contract because the price it tendered was lower than the minimum price fixed by the Commission in a Decision of 15 February 1978 (Official Journal L 69 of 11 March 1978, p. 36), in which the maximum quantities of beef for importation in the first quarter of 1978 were also given. The Italian intervention agency AIMA informed the applicant of this in a letter of 23 February 1978.

Since the applicant was convinced that the Commission decision and the system upon which it is based were from several points of view objectionable it brought an application before the Court of Justice on 13 April 1978. Its statement of claim in its original form asked for a large number of acts to be annulled, namely:

A few days after the application was lodged the applicant amended its statement of claim thereby requesting the Court to annul the said acts or to declare them to be inapplicable; the statement of claim was further clarified in the reply to the effect that it only asked for the annulment of the Commission Decision of 15 February 1978 and consequently for a declaration that the acts set out in the statement of claim are inapplicable.

My opinion on these claims is as follows:

I — Admissibility

As your Lordships are aware the Commission has raised various objections to the admissibility of the application.

1. In so far as the statement of claim in its original form requests the Court not only to annul Commission Decision of 15 February 1978 but also a number of other acts of general application, it would, as the Commission rightly points out, have to be held to be inadmissible for the very simple reason that — apart from the legal nature of the acts in question — as far as this aspect of the matter is concerned, the periods within which proceedings are to be instituted would have expired even if the periods by which they could be extended on account of distance had been added to them.

2. This is certainly not the case with reference to the claim that Commission Decision of 15 February 1978 should be annulled, at all events provided that the examination is confined to the question of keeping within the period for filing an application and also to the question whether the said decision was of direct and individual concern to the applicant.

3. The Commission's plea that the application is inadmissible in fact also has another objective. It is of the opinion that the applicant does not have an interest in the annulment of Commission Decision of 15 February 1978. The applicant, the Commission claims, would in fact derive no advantages from this because the award of a contract to tenderers who were successful at that time and have already concluded their business transactions cannot be retroactively withdrawn and because the tenders which were not considered for an award at the conclusion of the tendering procedure have become devoid of purpose. Furthermore the Commission stresses that the applicant is in the main only interested in challenging the general acts to which it has referred, that is to say, in changing the special import system. On this point it must be noted, on the one hand, that there are no circumstances in which the applicant could obtain a declaration of the inapplicability of the provisions quoted in the operative part of a judgment; for Article 184 of the EEC Treaty does not afford the opportunity to bring a separate action but merely permits and additional claim challenging the general acts which form the basis of an individual decision. On the other hand, there is a definite misuse of the procedure, because the applicant, by by-passing Article 173 which precludes a direct attack by it on general regulations, intended to use Article 184 for a similar attack, and in so doing, it in any case to all intents and purposes furthered the interests of the processing industry more than its own. Finally — quite apart from the opportunity of locking for judicial protection in the national courts from which an extensive and more effective examination of Community legal provisions can be obtained through the medium of Article 177 of the EEC Treaty — the applicant can also be said to have no legal interest to protect in relation to the general acts referred to which it has challenged. For no advantage accrues to the applicant from the discontinuation of the special import system and, since in Court proceedings specific directions cannot be given for the framing of politico-economic decisions, it also has no guarantee that it will be able in the future to import free of the levy.

II — The substance

When considering the statement of claim, to which I can now turn, it seems to me to be fitting to consider first of all the applicant's criticisms based on substantive law of the contested decision and of the system which this decision made possible, and only to deal with the alleged formal and procedural defects subsequently.

1. The applicant objects mainly to the definition of the class of persons qualified to participate in the special import system linked with the purchase of meat held by the intervention agencies. Owing to the fact that the class has not been restricted to processors, for whom the special import system was intended, and because it has not been laid down that the meat to be bought from the intervention agencies must be processed, the processors, who were in principle the intended beneficiaries, have been discriminated against. This extension of the category of participants has also led to each tenderer's only being awarded very limited quantities. In the applicant's view it would be more appropriate to restrict the class to processors or at least to give them preferential treatment and then apportion the meat according to the processing capacities and patterns of trade existing hitherto. The applicant is also of the opinion, which too is to be viewed against the background of the criticism concerning the class of participants, that the Commission was wrong to be guided mainly by tenders from traders who, to some extent, only participated in the invitations to tender for speculative reasons, and that as a result it fixed minimum prices which were too high. In this way it has disregarded the aim of the special import system which is to supply processors with meat from non-member countries on favourable terms. It is necessary to proceed on the basis that the advantage of being exempted from the levy is as good as offset by minimum prices which were far too high; at least the aim of giving preferential treatment to processors has been neglected to an inadmissible extent in favour of endeavours to relieve the intervention agencies of stocks, and thus burdens have been imposed on processors which strictly speaking should have been borne by the general public. Finally the Commission must also be blamed for having fixed differing minimum prices for the different Member States and by so doing offending against the concept that Community law must be applied uniformly.

2. I now come to the applicant's criticism of the procedure adopted. It takes the view that a necessary condition of compliance with the principle that the administration must be impartial is that the anonymity of the tenders must be preserved; that the same procedure as that prescribed in Directive No 71/305 concerning the award of public works contracts ought to have been adopted. Instead the names of the tenders and their tenderers came to the knowledge of the national authorities, whose representatives also sit on the Management Committee, and also of the Commission, and this made it possible for the minimum prices and quantities to be fixed in such a way that unwanted tenderers were excluded.

3. After dealing with that issue there now only remains for consideration the applicant's objection that the statements of the reasons upon which both the regulations and general acts underlying the contested decision and the decision itself are based are inadequate. In its view, since the basic Regulation No 805/68 only mentions the possibility of making imports exempted from the levy conditional upon purchases from the intervention agencies without laying down any determinative criteria for this, and since only a minimum quantity of the stocks held by the intervention agencies has been specified for the said linking, further particulars ought to have been given in the Community act in which arrangements for linking for 1978 were made for the first time. In particular the volume of the stocks held by the intervention agencies and the quantities suitable for industrial processing within the meaning of Article 9 of Regulation No 1896/73 (Official Journal L 193 of 14 July 1973, p. 18) ought to have been explained and there should have been some detailed indication of the relationship between the quantities to be imported and purchases from the intervention agencies which is set out in the annex to Commission Regulation No 2901/77. Furthermore the applicant takes the view that in the contested decision, in which the quantities to be imported and the minimum prices have been fixed, there should have been guiding principles for determining the minimum prices, which should have been given according to the different processing systems and the different Member States. Last but not least, in the opinion of the applicant, the fixing of the quantities to be imported during the different periods as well as their apportionment between the different Member States and the processing system to be taken into consideration ought to have been explained.

III —. In conclusion therefore I submit that Simmenthal's application, in so far as it asks for the annulment of Commission Decision of 15 February 1978 and in substantiation thereof claims that certain regulations and general acts are illegal, is certainly to be regarded as admissible but must be dismissed as unfounded. If this is

1 Translated from the German.