Opinion of Mr Advocate General Lenz

Mr President,

Members of the Court,

The actions before the Court, which arise out of the same facts and are therefore to be dealt with together, seek declarations that two Commission regulations adopted in connection with the sale of olive oil from stocks held by the Italian intervention agency AIMA are void.

The facts of this case have already given rise to an application for the adoption of interim measures in which the applicants in Case 232/81 sought to have the operation of those Commission regulations suspended. For a detailed description of the facts of the case, therefore, I would refer to the Order of the President of the Court of 21 August 1981 ([1981] ECR 2193) and to the two Reports for the Hearing, which are before the Court, and will restrict myself to drawing the Court's attention briefly to what appeared to me to be the essential facts.

Commission Regulation No 71/81 of 21 January 1981 (Official Journal L 11, 13.1.1981, p. 5) provided for some 33000 tonnes of virgin olive oil from intervention purchases made during the 1977/78 olive marketing year to be divided into six lots of about 5500 tonnes each and offered for sale at a fixed price of LIT 210000 per 100 kg. The Commission decided upon this procedure, which differed from the usual practice of sale by tender, because the goods in question had been put up for sale without success on several occasions, because production of olive oil in the 1980/81 marketing year was expected to be plentiful and because of the danger of deterioration due to storage. In order not to interfere with the normal sale of production from the then current marketing year, purchasers were required to put up a guarantee to ensure that the oil, which was sold as lampante grade oil, would either be refined, or be marketed outside the Italian and Greek markets.

Sale was to commence on the tenth day following the posting of notice of sale, which was to take place not later than 31 January 1981. Withdrawal of the oil was to take place over specified periods of time commencing on 15 March 1981.

The selling price which had been fixed and the conditions of payment were apparently so attractive that even on 2 February 1981, the first day on which applications could be submitted, 60 undertakings made offers, each for the purchase of all the lots available. The regulation in question provided that in such a case AIMA was to determine the purchaser by drawing lots.

However, the drawing of lots did not take place until four months later, on 1 June 1981. The reason for the delay was that some of the undertakings who had made offers contested the admissibility of offers made by other undertakings which had been created immediately before the sale procedure. After investigation by AIMA, all 60 undertakings were finally allowed to take part in the drawing of lots, as a result of which the applicants in Case 232/81 and the applicant in Case 264/81 were designated as purchasers.

The Italian intervention agency, which had informed the Commission in a letter of 16 May 1981 that because the selling price was much below the then current market price the purchasers stood to make an extraordinarily high profit, was reluctant for that reason, even after the drawing of lots, to release the oil. Several of the applicants brought proceedings before the Italian courts with a view to obtaining possession of the oil.

In a reply dated 22 June 1981 to written question No 81/81, submitted by several Members of the European Parliament, which criticized the procedure for the tender and sale, the competent Member of the Commission, Mr Dalsager, stated that the Commission considered that when the decision was adopted the conditions existed for sales in accordance with the procedure laid down in Community rules. In addition, so as to supply all traders, the Commission had subsequently decided to put up for sale, in small lots, 26000 tonnes of olive oil from intervention purchases made during recent years (Official Journal C 186, 27.7.1981, p. 12).

On 3 August 1981, the Commission adopted Regulation No 2238/81 retroactively repealing Regulation No 71/81. In the preamble to Regulation No 2238/81 it stated that the sale had been delayed because of the aforementioned complaints and that because conditions on the olive oil market had altered in the meanwhile sale on the conditions originally laid down would have resulted in serious disturbance on the market. Accordingly, the overriding general interest made it necessary to cancel the sale. Parallel measures were to be taken in order to safeguard the position of the traders affected.

Those measures were provided for in Commission Regulation No 2239/81, adopted on the same day (Official Journal L 218, p. 28), under which the same quantity of oil was once again put up for sale. The sale was restricted at the outset to those undertakings to whom lots had been allocated previously. Sale was no longer to take place at a fixed price but to the highest bidder, subject to a minimum selling price. The olive oil was to be sold not later than 10 September and was to be ready for withdrawal on 15 September 1981.

On 10 August 1981 the applicants in Case 232/81, and on 2 October 1981 the applicant in Case 264/81, brought proceedings under Article 173 of the EEC Treaty seeking a declaration that the two regulations of 3 August 1981 were void.

In the event that its action was dismissed or only part of the regulation was declared void, the applicant in Case 264/81 also brought a claim for damages, either in addition to or in the alternative to its main claim, the details of which are to be found in the Report for the Hearing.

In addition to their main claim the applicants in Case 232/81 sought immediate suspension of the operation of the aforementioned regulations by way of an application for interim measures. The President of the Court of Justice granted part of that application and, inter alia suspended operation of Regulation No 2239/81 inasmuch as the applicants were required to pay, in respect of the lot allocated to them, only so much of the price tendered as was equal to the amount which they would have had to pay under the terms of the sale obtaining under Regulation No 71/81. Payment of the remainder was suspended until judgment had been given in the main action.

I — Admissibility of the application for annulment

My opinion on those claims is as follows :

I — Admissibility of the application for annulment

Without expressly raising a formal objection, the defendant submits that the actions are inadmissible because the two regulations are not of direct and individual concern to the applicants within the meaning of the second paragraph of Article 173 of the EEC Treaty. Regulation No 2238/81 repealed Regulation No 71/81, which was of general measure which does not cease to be a regulation by virtue of the fact that the number and the names of the undertakings which had been drawn by lot could be determined.

Like the applicants, I cannot agree with those objections. The second paragraph of Article 173 of the EEC Treaty makes the admissibility of an application by an individual for the annulment of a measure dependent upon the fact that the contested measure, although in the form of a regulation, is in reality a decision which is of direct and individual concern to the applicant. As this Court has emphasized, inter alia in the Alusuisse case, the primary purpose of the provision is to prevent the Community institutions from being able, merely by choosing the form of a regulation, to exclude an application by an individual challenging a decision of direct and individual concern to him. In other words, legal protection is also given, as the court recently decided in the Differdange case, to a person who, although not a person to whom the contested measure is addressed, is in fact affected by it in the same way as if he were the person to whom it is addressed. Thus, the decisive element is not the form of the contested measure but rather its content and, in particular, the legal effects that it produces or is intended to produce.

It is clear from the preambles to the regulations in question that their sole and exclusive purpose was to set aside the legal effects of the sale of a certain quantity of olive oil which had been allocated to the applicants on the basis of the drawing of lots carried out pursuant to Regulation No 71/81. The preamble to Regulation No 2238/81 states that quantities could be sold by those operators at prices which would shut other operators out of the market. Accordingly, it is ... necessary to cancel the sale in question; ... in order to take account of the situation of these operators, measures are to be taken in parallel. That the regulations in question were of direct and individual concern to the applicant can also be seen from Regulation No 2239/81 which reserves the sale of the quantities of oil in question exclusively for tenderers who have been individualized by the drawing of lots carried out pursuant to Regulation No 71/81.

Since for those reasons I am of the opinion that there can be no doubt that the contested measures are of direct and individual concern to the applicants, their applications must be regarded as admissible.

II — Substance of the applications for annulment

As I have said, the contested regulations are concrete and individual measures: they are in reality individual acts which are merely in the form of a regulation and whose purpose is, as may be seen from the preamble to Regulation No 2283/81, to set aside the sale to be carried out on the conditions laid down in Regulation No 71/81 because of a fear of disturbance on the market. In the view of the applicants, the two measures must be declared void essentially on the grounds of failure to respect essential requirements of form, infringement of the general principles of law and misuse of discretion.

I consider it right that, in examining in detail the grounds for this application, I should first turn my attention to the criticisms based on substantive law, and deal with the alleged defects of form and procedure thereafter.

1. Misuse of discretion and insufficient grounds for the decision

2. Infringement of the general principles of the law.

3. Procedural defects

Since the substantive complaints have been shown to be well founded, I can deal briefly with the applicant's further complaint regarding defects. The applicants take the view that the provisions in question should also be declared void on the ground that they infringe essential requirements of form in that the procedure laid down in Article 38 of Regulation No 136/66 was not followed. That provision requires that the Management Committee for Oils and Fats should deliver its opinion before any measures are adopted. If the measures proposed by the Commission are not in accordance with the opinion of the committee, they are to be forthwith communicated to the Council.

However, that complaint is based, as the Commission has rightly pointed out, on an erroneous interpretation of the provision in question. That the Committee was consulted is clear from the last recital in the preambles to both regulations, in which it was stated that the Management Committee for Oils and Fats had not delivered an opinion within the time-limit set by its chairman. That means that there was neither a majority for nor a majority against the regulations.

However, pursuant to Article 38 of Regulation No 136/66, the only measures that the Commission must communicate to the Council are those which are not in accordance with the opinion of the Committee. The absence of an opinion by the Committee, as the Court ruled in Schouten and Dulciera with regard to a similarly worded provision in the regulation establishing a common market organization in wheat, in no way affects the validity of the measures adopted by the Commission. This complaint must therefore be rejected as unfounded.

4. The consequences of unlawfulness

Since the action is generally well founded, the Court, in accordance with Article 174 of the EEC Treaty, must declare the contested regulations void. The nullity of Regulation No 2239/81 derives in particular from the close material connection between it and Regulation No 2238/81, which is itself defective.

The Commission proposed that in that case, in accordance with the second paragraph of Article 174 of the EEC Treaty, at least that part of the contested regulations which provided for the abrogation of the facilities for payment be upheld. Those facilities, provided for in Regulation No 71/81, would have the effect of reducing the price that the undertakings concerned would have had to pay per 100 kg of olive oil from LIT 210000 to LIT 189000.

In view of my earlier remarks, I do not believe there is any necessity to decide that the contested regulations are to continue in force to the extent that they abolish the facilities for payment contained in Regulation No 71/80. Those facilities for payment are in fact part of the property rights acquired by the applicants as a result of the drawing of lots and their abrogation would therefore constitute an interference with those vested rights.

The second paragraph of Article 174 must be regarded as a special rule which makes it possible to take account of the normative consequences of instruments such as regulations. As has been shown, the contested regulations, have, however, the effect of individual decisions, so that there is no justification on that ground for regarding individual parts of them as definitive.

III — The claim for damages brought by the applicant in Case 264/81

The effect of the declaration that Regulations Nos 2238/81 and 2239/81 are void is that Regulation No 71/81 remains in force and the sales must take place on the basis of that regulation.

Therefore the claim for damages, brought in the alternative by the applicant in Case 264/81 for the case iñ which the contested regulations were not declared void, is without purpose.

In reply to a question posed by the Court that applicant expressly explained during the oral procedure that the claim for damages it brought in addition to the main application had been brought merely as a precaution against the possibility that the judgment in the main claim might not lead to its being fully compensated. It explained that the sole purpose of that claim was to keep open the possibility of bringing a claim for damages. No decision can or need therefore be taken at the present stage of the proceedings on that conditional application.

In conclusion, I propose that the Court declare that Commission Regulations Nos 2238/81 and 2239/81 of 3 August 1981 are void and that it dismiss the supplementary claim for damages brought in Case 264/81. If such is the Court's decision, the Commission should also be ordered to pay the costs, as has been asked for in the applicants' pleadings.

As the Commission has also failed in its essential submissions in the proceedings for interim measures, it should also be ordered to pay the costs both of those proceedings and of the intervention.

1 Translated from the German.

2 Judgment of 6.10.1982 in Case 307/81 Alumine Italia SpA v Coimai and Commission o/the European Communities [1982] ECR 3463, at p. 3170.

3 Judgment of 11.7.1984 in Case 222/83, Municipality o/Differdange and Others v Commission of the European Communities [1984] ECR 2889.

4 Judgment of 12.7.1979 in Case 166/78, Government of the Itahan Republic v Contiti/ of the European Communities [1979] ECR 2575.

5 Judgment of 1.6.1981 ¡n Case 15/60, Gabriel Simonv Court of Justice of the European Communities [1961] ECR 115.

6 Judgment of 1.2.1978 ¡n Case 78/77, Firma Johann Liihrs v Hauptzollamt Hamburg-Jonas [1978] ECR 169.

7 Judgment of 22.3.1961 in Joined Cases 42 and 49/59, Société Nouvelle des Usines de Pontheue — Aciéries du Temple v High Authority of the ECSC [1961] ECR 53; Judgment of 22.9.1983 in Case 159/82, Angélique Verli-Wallace v Commission of the European Communities [1983] ECR 2711.

8 Judgment of 13.12.1979 in Case 44/79 Liselotte Hauerv Land Rheinland-Pfalz [1979 ECR 3727; Judgment of 19.6.1980 in Joined Cases 41, 121 and 796/79 Vittorio Testa and Others v Bundesanstalt für Arbeit [1980] ECR 1979.

9 Judgment of 14.12.1978 in Case 35/78, N.G.J. Schauten BV v Hoofdproduktschap voor Akkerbouw- pwdukten [1978] ECR 2543; Judgment of 5.4.1979 in Case 95/78, Dulciora SpA v Amministrazione delle Finanze dello Stato [1979] ECR 1549.