JUDGMENT OF 20. 11. 1979 — CASE 162/78 WAGNER v COMMISSION

In Case 162/78

THE COURT composed of: H. Kutscher, President, A. O'Keeffe and A. Touffait (Presidents of Chambers), J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart and G. Bosco, Judges, Advocate General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

A — Admissibility

B — The economic context which has to be taken into consideration

C — The substance

IV — Oral procedure

Decision

Admissibility

Costs

I —. Facts and written procedure

1. Hans-Otto Wagner GmbH Agrarhandel KG (hereinafter referred to as Wagner) is the plaintiff in the action which is still pending before the Finanzgericht [Finance Court] Hamburg. The latter court made an order referring certain questions to the Court for a preliminary ruling which resulted in the judgment of the Court of 24 May 1978 in Case 108/77 (Wagner v Hauptzollamt Hamburg-Jonas [1978] ECR 1187).

2. It should be borne in mind that Article 4 (3) of Regulation No 1380/75 provides that:

3. The Court in its judgment of 24 May 1978 held that:

4. The Commission subsequently adopted the following regulations:

5. Since the applicants consider that Regulations No 1182/78 and No 1392/78 in fact applied the monetary coefficient retroactively to the refunds which had been irrevocably awarded to them before those regulations were adopted, they decided to institute proceedings under the second paragraph of Article 173 of the Treaty.

6. The Commission by means of an application registered at the Court on 25 August 1978 raised a preliminary objection of inadmissibility in accordance with Article 91 of the Rules of Procedure of the Court of Justice of the European Communities.

II —. Conclusions of the parties

1. The applicants claim that the Court should:

2. The Commission contends that the Court should:

III —. Submissions and arguments of the parties

A —. Admissibility

1. The Commission submits in its plea that Regulation No 1837/78, which was drawn up in an abstract and general way and affects an unspecified number of traders, is of direct but not of individual concern to the applicants. The fact that the applicants belong to a group of exporters whose tenders were successful before a specified date does not mean that they were to that extent distinguished individually by the regulation itself, which does not distinguish between traders who participated in the invitations to tender, traders who were stated to be successful tenderers and traders who had already made arrangements for the purpose of their commercial operations.

2. The applicants in their submissions on the plea of inadmissibility state that the fact that they were awarded refunds in national currency before the dates at issue in this case distinguishes them sufficiently as individuals for their application to be admissible under the second paragraph of Article 173 of the Treaty. To accept the defendant's view would be tantamount to allowing it to bar actions brought under that provision by deciding not to distinguish individually and specifically in a regulation the persons affected.

3. The Commission in its defence points out that the plaintiffs' explanation of the retroactivity of the disputed provisions is not in any way connected with the admissibility of the action but rather goes to the substance of the case.

B —. The economic context which has to be taken into consideration

1. The Commission expresses the opinion in its defence that to hold, as the Court did in Case 108/77, that a provision is not in breach of the principle of non-discrimination is by no means the same as asserting that it is economically justified but even admits of the conclusion that it leads to unacceptable economic consequences. The non-application of the coefficient to the refunds in question would cause considerable distortion of competition between exporters from countries with strong currencies and exporters from countries with weak currencies, as well as considerable deflection of trade and disruption of the system of invitations to tender.

2. The plaintiffs in their reply deny that the present proceedings are concerned with the application of the monetary coefficient to refunds, the amount of which has been set in a national currency in the statement of award following an invitation to tender; they are only concerned with the question whether the Commission could act retroactively.

3. The Commission in its rejoinder argues that, if it had wished to avoid the consequences of the Court's argument it would have given the new regulation general retroactive effect and not limited the retroactivity merely to the parties concerned. It nevertheless has good grounds for limiting the financial damage borne by the Community tax payer to the extent to which that is permissible in law. The financial consequences are taken into account when the public interest is taken into consideration.

C —. The substance

1. The applicants in their amended application (see letter of 8 August 1978) develop the following submissions:

2. The Commission replies that the choice of the date 24 June in Regulation No 1837/78 does not imply any retroactivity since an identical rule had already entered into force on 24 June by virtue of Regulation No 1392/78. The regulation which is the subject-matter of these proceedings did not introduce any new factor but restated the provision which was already in force in a provision of more general application. Similarly, the regulation in question does not apply with retroactive effect in the sugar sector since Regulation No 1182/78 provided that the coefficient should apply to that sector as from 1 June 1978. Consequently the claims in paragraphs (1), (2) and (4) of the application are unfounded.

3. The applicants state in their reply that the Commission cannot, on the one hand, assert that the claim contained in paragraph (4) of their application is clearly unfounded and, on the other hand, concede that only the claim under parargraph (3) can be considered. The claim under paragraph (4) is in fact subsidiary to that under paragraph (3).

4. The Commission in its rejoinder continues to believe that as from the date of publication of Regulation No 1182/78 the parties concerned could not have been unaware that the coefficient would in any case be applied as from 1 June 1978 to all exports in the sugar sector.

IV —. Oral procedure

1. By an application of 26 July 1978 received at the Court Registry on 28 July 1978 the applicants requested the Court to declare invalid Commission Regulation (EEC) No 1182/78 supplementing Regulations (EEC) No 1634/77 and (EEC) No 1790/77 on standing invitations to tender to determine export refunds on sugar (Official Journal 1978 L 145, p. 46) and Commission Regulation (EEC) No 1392/78 of 23 June 1978 amending Regulation (EEC) No 1380/75 laying down detailed rules for the application of monetary compensatory amounts (Official Journal 1978 L 167, p. 53) to the extent to which those regulations provide that the coefficient referred to in Article 4 (3) of Regulation No 1380/75, where it amounts to less than 1, shall apply to refunds, the amount of which has been set in a national currency in the statement of award following an invitation to tender, and in the alternative, to the extent to which those regulations provide that that coefficient, where it amounts to less than 1, shall apply to refunds, the amount of, which has been set in a national currency in the statement of award following an invitation to tender, in transactions for which the customs formalities were completed before 1 June 1978.

2. Following the adoption of Commission Regulation (EEC) No 1837/78 of 31 July 1978 defining the scope of Article 4 (5) of Regulation (EEC) No 1380/75 laying down detailed rules for the application of monetary compensatory amounts (Official Journal 1978 L 210, p. 51) the applicants amended their conclusions in the manner described below.

3. The applicants are sugar exporters who had been granted before 1 June 1978, following a partial invitation to tender, licences to export sugar in which the refunds had been set in a national currency and who consider that they have suffered damage as a result of the provisions of the disputed regulations.

4. It should be recalled that the Finanzgericht [Finance Court] Hamburg had, by an order of 19 August 1977 pursuant to Article 177 of the EEC Treaty, referred to the Court, inter alia, a question on the interpretation of Article 4 (3) of Regulation (EEC) No 1380/75 of the Commission of 29 May 1975 laying down detailed rules for the application of monetary compensatory amounts (Official Journal L 139, p. 37), in conjunction with Regulation (EEC) No 2101/75 of the Commission of 11 August 1975 on a standing invitation to tender in order to determine a levy and/or refund on exports of white sugar (Official Journal L 214, p. 5). The question was worded as follows :

5. The main action in which this question arose was concerned with the calculation of export refunds granted, following an invitation to tender, to the German firm Wagner, one of the applicants in these proceedings, in connexion with the export by it to Bulgaria of 4000000 kilograms of undenatured white sugar. The customs office which was responsible had granted the plaintiff firm monetary compensation amounting to DM 10.90 per 100 kg. It also granted export refunds but reduced the amounts resulting from the rates of refund indicated in the export licences by applying the coefficient of 0.9 to those amounts.

6. At that time Article 4 of Regulation No 1380/75 read as follows:

7. The Court for the reasons given in its judgment of 24 May 1978 in Case 108/77 (Hans-Otto Wagner GmbH Agrarhandel KG v Hauptzollamt Hamburg-Jonas [1978] ECR 1187) answered the question as follows:

8. Subsequent to the Court's judgment the Commission adopted the abovementioned Regulation No 1182/78 which provides that The coefficient referred to in Article 4 (3) of Regulation (EEC) No 1380/75 shall apply equally to refunds awarded in national currency for the purposes of this invitation to tender. Regulation No 1182/78 which entered into force on 1 June 1978 applies to refunds awarded under the regulations which it supplements with the exception of those for which offers were accepted after 24 May 1978 and before 1 June 1978. The Commission then adopted the above-mentioned Regulation No 1392/78 which provided for the addition to Article 4 of Regulation No 1380/75 of a paragraph (5) which states that: The coefficient referred to in paragraph (3) shall also be applied to refunds and levies, the amount of which has been set in a national currency in the statement of award following an invitation to tender. Regulation No 1392/78 applies to operations for which the customs formalities have been completed on or after the date of its entry into force (24 June 1978), subject to the existing provisions in the sugar sector and to the provisions to be adopted before 1 August 1978.

9. Since the applicants are of the opinion that Regulations Nos 1182/78 and 1392/78 in fact applied the monetary coefficient retroactively to the refunds which had been definitively awarded to them before those regulations were adopted they have instituted these proceedings for annulment under the second paragraph of Article 173 of the EEC Treaty.

10. The Commission adopted on 31 July 1978, that is to say three days after these proceedings were instituted, the above-mentioned Regulation No 1837/78, Article 1 whereof (as amended by Commission Regulation (EEC) No 1907/78 of 7 August 1978, Official Journal 1978 L 217, p. 13) provides that Article 4 (5) of Regulation No 1308/75 shall apply to operations for which completion of the customs formalities occurs:

11. The applicants stated in a letter of 8 August 1978 that it was no longer necessary for the Court to give a decision on the various principal submissions in their application of 26 July 1978, which they amended having regard to the situation created by the adoption of Regulation No 1837/78. In their new conclusions they claim that the Court should:

12. The applicants consider that the conditions laid down by the second paragraph of Article 173 are present. They claim that the disputed regulation is of direct and individual concern to them and that the issue in this case is that refunds which they had been definitively awarded were subsequently reduced and not merely that monetary compensatory amounts were altered. Moreover, the fact that Regulation No 1837/78, like Regulations Nos 1182/78 and 1392/78, as far as the future is concerned, constitute general measures and that in consequence the Commission chose the legal form of a regulation does not prevent those regulations, to the extent to which they provide for the retroactive application of the monetary coefficient to refunds which have already been awarded, from being in the nature of decisions addressed to specified persons which may be challenged by those persons as provided for in the second paragraph of Article 173 of the Treaty. The three regulations contain provisions which have genuine retroactive effect. They are intended to govern a specific situation in that they apply to certain operations which had already been concluded when the regulations entered into force.

13. The applicants take the view that, to the extent to which the regulations deal with refunds awarded before 1 June 1978, they are of concern to a small number of exporters who were definitively ascertained on the date mentioned. Since those exporters were awarded refunds in a national currency before 1 June 1978 they are differentiated from all other addressees of the general provision and may consequently be distinguished individually. The applicants belong to that category of exporters and the factors establishing that they are individually concerned are therefore present.

14. Although the Commission has not opposed the amendment to the subjectmatter of the application it has disputed its admissibility. It takes the view that although the regulation which is challenged is of direct concern to the applicants it is not of individual concern to them. Regulation No 1837/78 in conjunction with Regulation No 1392/78 is drafted in an abstract and general way and applies to an indefinite number of traders, not to a welldefined group thereof. It contains an amendment to the provisions relating to the application of monetary compensatory amounts. From the very beginning that amendment applied in principle to all operations for which the customs formalities were completed on or after the date of entry into force of Regulation No 1392/78, that is to say 24 June 1978. Regulation No 1837/78 did not amend that principle in any way which could be relevant to the case in point. It stated that the relevant date for the completion of customs formalities for operations in the sugar sector was 1 June 1978, since in the case of that sector the new system had already been introduced on that date by Regulation No 1182/78.

15. In the view of the Commission the reason for the applicants' conviction that they are individually concerned lies in the fact that they belong to a group of exporters who became successful tenderers before a specified date. However, that group of exporters forms only a part of the unspecified number of traders covered by Regulation No 1380/75, as amended by Regulation No 1392/78. The fact that the applicants belong, within the undefined group of persons affected, to a sub-group distinguished by a particular factual situation does not mean that they are to that extent distinguished individually by the regulation itself. The disputed regulation does not draw any distinction depending on whether the traders concerned participate in invitations to tender or have been stated to be successful tenderers or have already made arrangements for the purpose of their commercial operations; it applies the same treatment to all those who have engaged in operations for which the formalities have not yet been completed. If the applicants' argument were correct the result would be that it would be possible, with reference to suitable facts, to form a number of sub-groups distinguished by individual features within the unspecified number of persons affected. Such a view would make the conditions laid down by the second paragraph of Article 173 of the Treaty, which requires that the decision which a person challenges must be of individual concern to him, to a great extent ineffective.

16. Article 173 of the EEC Treaty entitles a private individual to challenge a decision addressed to him or a decision which, although adopted in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former. The specific purpose of that provision is to prevent the Community institutions from being able to bar proceedings instituted by an individual against a decision of direct and individual concern to him by simply choosing the form of a regulation.

17. In order to determine whether the application is admissible it is necessary to examine whether the measures under attack are regulations or decisions within the meaning of Article 173 of the Treaty. Under the second paragraph of Article 189 the test for distinguishing between a regulation and a decision is to ascertain whether the measure in question has general application or not.

18. It is common ground that the Commission has fixed, as from 1 March 1973, uniform basic monetary compensatory amounts calculated with reference to Community guaranteed prices. Consequently the amounts fixed in this way take account, as far as exports to non-member countries are concerned, not only of the price of the products concerned on the world market but also of the difference between that price and the Community guaranteed price which is compensated for by the export refunds. The effect of applying the coefficient to the refund is to fix a monetary compensatory amount which is calculated on the basis of the world market price.

19. As emerged in Case 108/77, offers submitted by tenderers in answer to an invitation to tender are expressed in national currency in accordance with Article 5 (2) of Regulation No 2101/75, but at the level of the Commission all calculations are effected in units of account. The tenders submitted are converted, in order to make them comparable, into units of account by applying the green rates. Awards are made only after taking into account the maximum amount fixed in units of account and by comparison therewith. The result of making awards with reference to the maximum amount fixed in units of account is that the refunds awarded, expressed in national currency by applying the green rates, already reflect the impact of the revaluation or devaluation of the currency in question which the monetary compensatory amounts are intended to offset. Thus the effect of levying or granting the whole of the monetary compensatory amount fixed for intra-Community trade would be to double the incidence of monetary compensation on that part of the Community guarantee price represented by the export refund. The application of the coefficient at the same time as the monetary compensatory amount is granted or levied makes it possible to avoid that double incidence.

20. In pursuance of the above-mentioned principles the Commission considered it necessary to adopt the regulations which are criticized in this case.

21. Those regulations do not in fact reduce the refunds awarded but, by applying the coefficient to the refunds, merely adjust the monetary compensatory amount by reducing it in the case of revalued currencies and by increasing it in the case of devalued currencies. The application of the coefficient is only a technical way of adjusting, in trade with non-member countries, the basic monetary compensatory amount which is fixed at a uniform level calculated on the basis of Community prices. The basic monetary compensatory amount has therefore to be reduced by an amount calculated by applying to the levy or refund the coefficient determined by the revaluation or devaluation, so that the reduction of the refund itself is not affected.

22. The system of applying the coefficient to refunds applies to all successful tenderers, whatever the date of the award, provided that exportation took place after 1 June 1978. The regulations in question are legislative measures. It is therefore impossible to agree with the view that they are of individual concern to the applicants within the meaning of the second paragraph of Article 173 of the Treaty and the application must therefore be dismissed as inadmissible.

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

24. The applicants have failed in their submissions.

On those grounds, THE COURT hereby:

1 Dismisses the application as inadmissible;

2 Orders the applicants to pay the costs.