Roquette Frères v Council
In Case 179/80
THE COURT composed of: J. Mertens de Wilmars, President, A. O'Keeffe, U. Everling and A. Chloros (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, G. Bosco, T. Koopmans and O. Due, Judges, Advocate General: G. Reischl Registrar: P. Heim
gives the following
JUDGMENT
Facts and Issues
I — Facts and procedure
A — Background to the dispute
ANNEX II
B — Course of the procedure and related events
II — Conclusion of the parties
III — Submissions and arguments of the parties
IV — Oral procedure
Decision
Costs
I —. Facts and procedure
A —. Background to the dispute
1. By a preliminary ruling of 25 October 1978 in Joined Cases 103 and 145/77, Royal Scbolten-Honig (Holdings) Ltd v Intervention Board for Agricultural Produce and Tunnel Refineries Ltd v Intervention Board for Agricultural Produce [1978] ECR 2037, the Court of Justice held that Council Regulation No 1111/77 of 17 May 1977 laying down common provisions for isoglucose was invalid in so far as Articles 8 and 9 thereof imposed a production levy on isoglucose of five units of account per 100 kg of dry matter for the period corresponding to the sugar marketing year 1977/78. The Court found that the system established by the aforesaid articles offended against the general principle of equality (in those cases between sugar producers and isoglucose producers). However, it added that its judgment left the Council free to take any necessary measures compatible with Comunity law for ensuring the proper functioning of the market in sweeteners.
2. Following that judgment, on the basis of the proposal for a regulation by the Commission on which the Parliament had been consulted on 19 March 1979 but had not given its formal opinion, the Council adopted on 25 June 1979 Regulation (EEC) No 1293/79 (Official Journal 1979, L 162, p. 10, as rectified in Official Journal 1979, L 176, p. 37) amending Regulation No 1111/77. However, the preamble to Regulation No 1293/79 contains the reference having regard to the fact that the European Parliament has been consulted. Pursuant to Article 5 thereof, the regulation entered into force on 1 July 1979.
3. Regulation No 1293/79 amended Regulation No 1111/77 in the light of the Court's judgment of 25 October 1978. Stating in its preamble that the most appropriate means for avoiding any inequality of treatment between sugar and isoglucose producers was to subject isoglucose production to rules analogous to those applying to sugar production until 30 June 1980, Regulation No 1293/79 introduced inter alia, as a transitional measure until that date, a temporary system of production quotas for isoglucose (see the sixth recital). The reasons for the adoption of detailed rules governing the allocation and determination of quotas are set out in the seventh recital. The eighth recital deals with the need to fix the specific amount of the production levy applicable to isoglucose production.
4. By separate judgments delivered on 29 October 1980 in Case 138/79 Roquette v Council [1980 ] ECR 3333 and in Case 139/79 Maizena v Council [1980] ECR 3393, the Court declared Regulation No 1293/79 void for infringement of essential procedural requirements on the ground that it had been adopted without the European Parliament's being consulted, as required by Article 43 of the EEC Treaty. In its decision in the aforesaid cases, however, the Court dismissed all the substantive arguments directed against the system ot production quotas established by the said regulation and, in particular, against the fixing of basic quotas for the applicants in both cases.
5. By Regulation No 1592/80 of 24 June 1980 — adopted, that is to say, while Cases 138 and 139/79 were pending — the Council declared that the system of isoglucose production quotas established by Article 9 of Regulation No 1111/77 (as amended by Regulation No 1293/79) was to be applicable to the period between 1 July 1980 and 30 June 1981 and added that the basic quota of each isoglucose-producing enterprise for that period was to be that applied between 1 July 1979 and 30 June 1980 (Article 2).
B —. Course of the procedure and related events
1. By application lodged at the Court Registry on 21 August 1980, Roquette Frères, a company incorporated under French law which manufactures inter alia isoglucose products at its factory in Lestrem (Pas-de-Calais), requested the Court to declare invalid the provision of Regulation No 1592/80 which extends the validity of the system of quotas established by Regulation No 1111/77, as amended, and by Annex II thereto, which sets out the applicant's production quota for the period between 1 July 1980 and 30 June 1981.
2. By a document headed: Addendum to the application instituting the proceedings, lodged at the Court Registry on 8 November 1980, the applicant claims that the Council should be ordered to pay the costs.
3. By order of 17 December 1980, the Court allowed the Commission to intervene in support of the conclusion of the Council. However, for the reasons set out below, the Commission declined to submit any observations on the substance of the case.
4. Fearing, it would appear, that the production quotas for the 1980/81 marketing year would be declared void by the Court because they had been fixed by reference to Regulation No 1293/79 (see the first recital in the preamble to Regulation No 1592/80), which had been declared void by the aforesaid judgments of 29 October 1980, the Council adopted on 10 February 1981 the following two regulations:
5. In its rejoinder, lodged at the Court Registry on 10 March 1981, the Council raised a fresh issue within the meaning of Article 42 (2) of the Rules of Procedure. It contended that as a result of the publication of Regulations Nos 387 and 388/81 in the Official Journal, it was pointless for the applicant to proceed with its application for a declaration of nullity.
6. By an additional statement lodged at the Court Registry on 13 April 1981, the applicant replied to the fresh issue raised by the Council in its rejoinder.
7. The written procedure came to an end without the Commission's having submitted, in its capacity as intervener, any written observations on the substance of the case. The Commission stated by letter of 16 March 1981 that it was wholly in agreement with the arguments adduced by the Council and reserved the right to submit observations solely at the hearing.
8. On hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.
II —. Conclusion of the parties
III —. Submissions and arguments of the parties
I —. The communication from the Commission of the European Communities to the Council concerning changes in the common agricultural policy to help balance the markets and streamline expenditure
II —. The proposals from the Commission of the European Communities to the Council on the fixing of prices of certain agricultural products and on certain related measures
IV —. Oral procedure
1. By application lodged at the Court Registry on 21 August 1980, Roquette Frères, a company incorporated under French law, instituted proceedings under the second paragraph of Article 173 of the EEC Treaty for a declaration that Council Regulation (EEC) No 1592/80 of 24 June 1980 on the application of the system of production quotas in the sugar and isoglucose sectors during the period 1 July 1980 to 30 June 1981 (Official Journal 1980, L 160, p. 12) was partially void. More precisely, the applicant asked the Court to declare invalid Article 2 of the said regulation as well as Annex II thereto. Article 2 (1) extends the validity of the system of production quotas for isoglucose which was incorporated, for the period betwen 1 July 1979 and 30 June 1980, in Council Regulation (EEC) No 1111/77 of 17 May 1977 laying down common provisions for isoglucose (Official Journal 1977 L 134, p. 4) by Regulation (EEC) No 1293/79 of 25 June 1979 (Official Journal 1979, 162, p. 10, as rectified by a corrigendum in Official Journal 1979, L 176, p. 37). Under Article 2 (2), the basic quota for each isoglucose producing enterprise for the period from 1 July 1980 to 30 June 1981 was to be that applicable during the period from 1 July 1979 to 30 June 1980.
2. It should be noted that Council Regulation No 1592/80 was adopted while the proceedings were pending which led to the Court's declaration, in its judgments of 29 October 1980 in Case 138/79 Roquette v Council [1980] ECR 3333 and in Case 139/79 Maizena v Council [1980] ECR 3393, that Regulation No 1293/79 was void on the ground that it had been adopted without the European Parliament's being consulted, as required by Article 43 of the EEC Treaty. In its decision in the aforesaid cases, however, the Court rejected all the substantive arguments directed against the system of production quotas established for isoglucose by the said regulation and, in particular, against the fixing of basic quotas for the applicants in both cases.
3. In its application, the applicant contends that the Council adopted Regulation No 1592/80 without awaiting the Parliament's opinion. As regards the substance of the case, the applicant merely restates the arguments which it put forward in Case 138/79 and which were rejected by the Court in its aforementioned jugdment in that case. In its reply, it also contends that Regulation No 1592/80, in so far as it merely extends the validity of Regulation No 1293/79, is void for the same reasons as the latter. The unlawfulness of Regulation No 1592/80 is, it maintains, a necessary consequence of the Court's finding in its abovementioned jugdment that Regulation No 1293/79 was unlawful. Finally, it states that it no longer relies on the substantive arguments which it put forward in its application.
4. It should be noted that on 10 February 1981, while this case was pending before the Court, the Council, after obtaining the Parliament's opinion on 4 February 1981, adopted the following two regulations:
5. In its rejoinder, the Council raised a fresh issue, within the meaning of Article 42 of the Rules of Procedure, by contending that the action has become pointless as a result of the adoption of the two aforesaid regulations. The Council considers, moreover, that the applicant no longer has any interest in proceeding with its application and that to do so may be regarded as an abuse of process.
6. In an additional statement submitted in reply to the fresh issue raised by the Council, the applicant points out that it has no intention of withdrawing its application but leaves to the Court the question whether or not it is necessary to give a decision on the point at issue.
7. Whilst proceeding with its action in this case, the applicant instituted proceedings, by application lodged at the Court Registry on 7 May 1981, for a declaration that Council Regulations Nos 387 and 388/81 were void. By judgment of 30 September 1982, the Court dismissed that application as unfounded.
8. In the light of all the foregoing considerations, it must be stated that a declaration that Regulation No 1592/80 is void is no longer of any interest to the applicant in view of the fact that the provisions which it seeks to have declared void have, in the meantime, been confirmed by a regulation against which an application for a declaration of nullity brought by the applicant was dismissed by the Court as unfounded in its aforementioned judgment.
9. Consequently, it is unnecessary for the Court to give a decision on the point at issue.
10. Under Article 69 (5) of the Rules of Procedure, where a case does not proceed to judgment, the costs shall be in the discretion of the Court.
11. If the applicant had withdrawn its application after it became aware of the amendment made to the contested regulation by the two regulations of 10 February 1981, there would have been grounds for finding that its withdrawal was justified by the attitude of the Council and for ordering the latter to pay the costs.
12. However, it is clear from the Court's judgment in Case 110/81 that the unlawfulness relied upon by the applicant in support of this application, even on the assumption that it has been demonstrated, was remedied by the adoption of Regulation No 388/81 and that thereafter the applicant no longer had any interest in the prosecution of the action.
13. In the light of all those considerations, it is equitable for the parties to bear their own costs.
On those grounds, THE COURT hereby:
1 Declares that it is unnecessary for it to give a decision on the point at issue;
2 Orders the parties to bear their own costs.