JUDGMENT OF 30. 9. 1982 — CASE 110/81 ROQUETTE FRÈRES v COUNCIL

In Case 110/81

THE COURT (Second Chamber), composed of: O. Due, President of Chamber, A. Chloros and F. Grévisse, Judges, Advocate General: G. Reischl Registrar: H. A. Rühi, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

A — Background lo the dispute

ANNEX II

B — Procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

First submission: breach of the general principle that legislation may not be retroactive

Second submission as to a breach of the obligation to state the reasons upon zt-hich a measure is based

Third argument rekting to an infringement of Article 201 of the EEC Treaty and Article 2 of Council Decision of 21 April 1970 on the repkcement of financial contributions from Member States by the Communities' own resources

IV — Oral procedure

Decision

I — First submission: Breach of the principle that Community measures may not have retroactive effect

II — Second submission: Breach of the duty to state the reasons upon which a measure is based

III — Third submission: Infringement of Article 201 of the Treaty and Article 2 of the decision of 21 April 1970 on the replacement of financial contributions from Member States by the Communities' own resources

IV — Costs

I —. Facts and written procedure

A —. Background lo the dispute

1. By a preliminary ruling of 23 October 1978 given in Joined Cases 103 and 145/77 Royal Scholten- Monig (Holdings) Limited v Intervention Board for Agricultural Produces Funnel Refinences Limited v Intervention Board for Agricultural Produce [1978] ECR 2857 the Court of Justice held that Council Regulation No I 1111/77 of 17 May 1977 laying down common provision for isoglucose was invalid to the extent to which 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 Coun stated, in fact, that the system established by the abovementioned provisions offended against the general principle of equality (in that case as between sugar producers and isoglucose producers) The Coun added, however, that the ruling ieit the Council free to take anv necessarv measures compatible with Communitv law for ensuring the proper functioning of the market in sweeteners

2. Following that judgment on 25 June 1979 the Council adopted on the basis of a proposal for a regulation drawn up by tne Commission. Regulation No 1295/79 (Official Journal L 162. p. 10, with corrigendum in Official Journal amending Regulation No 1111/77. That regulation entered into force, pursuant to Article 5 thereof, on 1 July 1979.

3. Regulation No 1293/79 amended Regulation No 1111/77 in the light of the judgment of the Court of Justice of 25 October 1978. In view of the fact that the most appropriate means for avoiding inequality of treatment 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 for the same period a temporary system of isoglucose production (cf. sixth recital). The seventh recital justifies the rules for allocating and fixing the quotas. The eighth recital states that it is necessary to fix a specific amount of the production levy applicable to isoglucose production.

4. Bv separate judgments of 29 October 1980 delivered in Case 138/79 SA Roquette Frères v Councí/o/lhe European Communities [1980] ECR 3333 and Case I 39/79 Maizena GmbH v Council of the F.uropean Communities [1980] ECR 3393, the Court declared Regulation No 1293/79 to be void for infringement of essential procedural requirements on the ground that the regulation had been adopted on 23 June 1973 in the absence of the Parliament's opinion required by Article 43 of the Treaty, on the proposal which had been referred to the Parliament on 19 March 1979. However, in the statement of the grounds upon which the ludgment was based, the Court rciected all the substantive arguments adduced against the svstem of production quotas introduced by that regulation and in particular against the basic quotas fixed for the applicants in the rwo cases.

5. By Council Regulation (EEC) No 1592/80 of 24 June 1980 (Official Journal L 160, p. 12), which was adopted while Cases 138/79 and 139/79 were pending before the Court, the Council declared that the system of production quotas for isoglucose as laid down by Article 9 of Regulation No 1111/77 (as amended by Regulation No 1293/79) was to apply during the period from 1 July 1980 to 30 June 1981.

6. By an application, which was lodged at the Court Registry on 21 August 1980, Roquette Frères, a company incorporated under French law, which manufactures amongst other products isoglucose in its factory at Lestrem (Pas-de-Calais), requested the Court to declare invalid as against it Article 2 of and Annex II to 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 from 1 July 1980 to 30 June 1981.

7. A similar action was brought on 5 August 1980 against those provisions by Maizena, a company incorporated under German law.

8. Those cases were registered at the Court under Nos 179/80 for Roquriit v Council and 176/80 for Mautnj v Council.

9. On 10 January 1981. that u to six while Cases 17b and I 179/8: were pending before the Court, the Council, atter obtaining the opinion of the European Parliament which m delivered on 9 February 1981. adopted the following two regulations.

10. By order of 2 April 1981 the Court took note that Maizena GmbH wished to withdraw us action in Case 176/80 and ordered the case to be removed from the Court Register.

11. Case 179/80 is, however, still pending before the Court.

B —. Procedure

1. By an application lodged at the Court Registy on 7 May 1981 SA Roquette Freres requested the Court to declare void Council Regulations (EEC) Nos 387/81 and 388/81

2. In its defence dated 30 June 1981 the Council maintained that the application was unfounded.

3. The applicant lodged its reply at the Court Registry on 30 July 1981.

4. By an application received at the Court Registry on 29 July 1981 the Commission requested the Court to allow it to intervene in support of the Council.

5. The Council of the European Communities lodged its rejoinder on 1 October 1981.

6. On hearing the repon of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry.

7. By an order of 24 March 1982 the Court, having heard the views of the Advocate General, deciaed, pursuant to Article 93 (1) and (2) of the Rules of Procedure, io assign the case to the Second Chamber

II —. Conclusions of the parties

1. By an originating application SA Roquette Frères ciaims that the Court should

2. In its defence the Council of the European Communities contends that the Court should dismiss as unfounded the application brought by the applicant and order the applicant to pay the costs.

3. In its intervention the Commission supports the conclusions of the Council seeking.

4. In its reply the applicant maintains its conclusions.

5. In its rejoinder the Council of the European Communities maintains the conclusions which u presented in its defence. Furthermore, u requests the Court to declare the new ground invoked bv the applicant inadmissible and, in the alternative, to declare it unfounded.

III —. Submissions and arguments of the parties

1. SA Roquette Frères considers that the principle that legislation may not be retroactive finds recognition in Community lau- in the second paragraph of Article 191 of the EEC Treaty which provides that Directives and decisions shall take effect upon notification, which means that measures adopted under Community law may not have effect prior to their notification.

2. The Council of the European Communities, the defendant, considers for its part that the case-law of the Court clearlv demonstrates, in particular in its judgment in Case 98/78 Räcke [1979] ECR 69 at paragraph 20 that retroactive Community measures are by no means excluded as a matter of principle. However, the Court has sought to make retroactive Community measures subject to judicial review to ensure that they observe in particular the following conditions:

3. The Commission of the European Communities, intervening in support of the Council's conclusions, points out that:

1. The applicant considers that both Regulation* Nos 387/g I and 388/SI tnemseives and the individuai decisions * men ihrv contain lack anv statement ot the reasons tor which the Council considered it was obliged to adopt retroactive measures

2. The defendant, the Council of the European Communities, considers for its part that those allegations are unfounded.

3. The Commission of the European Communities considers that the claim relaung to a breach of the duty to give the reasons on which a measure is based does not sund up to a simple reading of the recitals of Regulation No 387/81 and states that it entirely supports the Council's arguments refuting that allegation.

1. In its reply the applicant makes a further submission relating to the Council's lack of competence to create new own resources.

2. In its rejoinder, the Council of the European Communities considers the fresh issue raised by the applicant to be inadmissible and unfounded.

3. The Commission, for its part, considers that the fresh submission is neither admissible nor well-founded.

IV —. Oral procedure

1. By application lodged at the Court Registry on 7 May 1981 SA Roquette Frères, a limited company incorporated under French law, brought an application before the Court under the second paragraph of Article 173 of the EEC Treaty for a declaration that:

2. Article 1 (3) and (4) of Regulation No 387/81 reinstates for the same period, that, is to sa\with retroactive effect, the svstem of quotas laid down by Regulation No 12o3'~9 m respect of the period from 1 July 1979 to 30 June 1980. the soie difference being slight increases in quota allocated to Maizena GmbH Council Regulation No 1293/79 oi 23 June 1979, which amended the aforementioned Regulation No 1111/77, m particular by inserting in it a new Article 9. was in fact declared void bv judgments ot the Court of 29 October 1980 in Case 138/79 SA Roquette Frères v Council of the European Communities [1980] ECR 3333 and in Case 139/79 Maizena GmbH w Council of the European Communities [1980] ECR 3393 because it was adopted in the absence of the opinion of the Parliament, required by Article 43 of the Treaty.

3. Article 2 of Council Regulation No 1592/80 of 24 June 1980 extended, in respect of the period from 1 July 1980 to 30 June 1981, the system of production quotas for isoglucose, as it had been laid down, inter alia, by Article 9 inserted in Regulation No 1111/77 by Regulation No 1293/79. Following the declaration by the Court that Regulation No 1293/79 was void, the Council, as it stated in the second recital in the preamble to the regulation, in order to avoid any doubts as to the legality of Article 2 of Regulation No 1592/80, referring from then on to Regulation No 387/81, reinstated the provisions of Article 2 by Regulation No 388/81.

4. In support of its action the applicant claims in its application first that the contested regulation offends against the principle that Community measures should not have retroactive effect and secondly that the statement of the reasons upon which the measure was based is insufficient. In its reply, the applicant makes a further submission based on the Council's lack of competence to create an isoglucose production levy.

I —. First submission: Breach of the principle that Community measures may not have retroactive effect

5. As the Court has alreadv held, in particular in its judgments of 25 January 1979 m Case 98/78 Racke [1979] ECR 69 and Case 99/78 Decker [1979] ECR 101. although in general the principle of legal certainty, as the applicant staies. precludes a Community measure from taking effect from a point m ume before us publication, u may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected.

6. As regards the first of those two conditions it is well to call to mind certain matters of tact or law which are moreover well known to the parties. During the period of application of the contested regulation sugar producers were, in particular, subject to quotas and production levies. Isoglucose is a product which may be substituted for sugar and is in direct competition with it. Any Community decision concerning one of these products necessarily has repercussions on the other. Having regard to that situation, although by judgments of 29 October 1980 the Court declared Regulation No 1293/79 void for infringement of an essential procedural requirement, namely the absence of the Parliament's opinion, the Court nevertheless considered that it was a matter for the Council, in view of the fact that isoglucose production was contributing to an increase in sugar surpluses and that it was open to it to impose restrictive measures on that production, to take such measures in the context of the agricultural policy as it judged to be useful, regard being had to the similarity and interdependence of the two markets and the specific nature of the isoglucose market.

7. If, following the declaration of the nullity of Regulation No 1293/79, the Council had adopted no measure restrictive of isoglucose production — in the present case the reinstatement with effect from 1 July 1979 of the quotas allocated and the levies imposed on the producers — the objective which it was pursuing, namely the stabilization, in the general interest, of the sugar market, could not have been achieved or could only have been achieved to the detriment of sugar producers, who alone would have had to finance the costs of Community surpluses, or even to the detriment of the Community as a whole, whilst isoglucose producers whose production competed with that of sugar undertakings would have escaped all restraints.

8. In that situation the Council was lawfully entitled to consider that the objective to be achieved in the general interest, namely the stabilization of the Community market in sweeteners without arbitrary discrimination between traders, required the contested provisions to be retroactive in nature and thus the first of the conditions which the Court lays down for the applicability ratione tempons of a Communitv measure to a date prior to the date of its publication may be regarded as satisfied.

9. To ascertain whether the second of the conditions set out above is also satisfied it is necessary to inquire whether the action of the Council has frustrated a legitimate expectation on the pan of the applicants to the effect that the production of isoglucose would not be regulated during the period from 1 July 1979, the date from which Regulation No 387/81 retroactively applied, to 17 February 1981, the date of publication of that regulation and of Regulation No 388/81.

10. It should first be pointed out that those two regulations do not include any new measures and merely reproduce the provisions of Council Regulations Nos 1293/79 and 1592/80.

11. In view of the fact that Council Regulation No 1293/79 of 25 June 1979 retained its full effect within the Community legal order until it was declared void, so that the national authorities responsible for its implementation were required to subject the production of isoglucose to the restrictive system which it laid down, such a legitimate expectation could only be founded on the unforeseeability of the reinstatement with retroactive effect of the measures contained in Regulation No 1293/79 declared void by the Court and extended as from 1 July 1980 by Regulation No 1592/80.

12. In the present case the applicant cannot claim any legitimate expectation worthy or protection.

13. In the firs; place the traders concerned by the rules in question are limited in number and are reasonably well aware of the interdependence of the markets in liquid sugar and isoglucose, of the situation of the Community market in sweeteners and therefore of the consequences which, following the declaration that Regulation No 1293/79 was void, the imposition on the production of sugar in respect of the period beginning on 1 July 1979 of stabilisation measures from which the production of isoglucose would have been entirelv exempt might have had.

14. Seconds by adopting successively Regulations Nos 1111/77, 1293/79 and 1592/98 the Council had clearly manifested its intention of regulating the production of ad sweeteners in the Community and to that end of subjecting the production of isoglucose to a restrictive system based on a system of quotas and production levies

15. Thirdly it could not have escaped the notice of the applicant that in both judgments of the Court of 29 October 1980 which declared void Regulation No 1293/79 (which also fixed its own production quota), the Court rejected the grounds on which the applicant companies Roquette and Maizena were contesting the substantive validity of that regulation and was at pains, at the same time as pronouncing it void for failure to obtain the Parliament's opinion, to state that such nullity was without prejudice to the Council's power following the present judgment to take all appropriate measures pursuant to the first paragraph of Article 176 of the Treaty.

16. Finally, from the publication of the Commission's proposal in the Official Journal of 20 December 1980 (C 334, p. 2) the applicant knew that the Commission had, as early as 3 December 1980, submitted to the Council a proposal for a regulation amending, in particular, Regulation No 1111/77, in order to reinstate, for the period from 1 July 1979 to 30 June 1980, the system of quotas and levies in the form in which that system had been laid down by Regulations Nos 1293/79 and 1592/80 and in which it was to be reinstated by the contested provisions of Regulations Nos 387/81 and 388/81.

17. In challenging the retroactivity of the regulations in dispute the applicant makes various allegations.

18. It first observes that by virtue of Article 174 of the Treaty, a measure invalidated by the Court is to be declared void and. in declaring Regulation No 1293/79 void, the Court did not make use of the power given to it by the second paragraph of Article 174 to state which of the effects of the regulation which it had declared void should be considered to be definitive. It infers from that that the obligation imposed on the Council by the first paragraph of Article 176 to take the necessarv measures to complv with the ludgment of the Court required it to invite national authorities to abolish the charge to production levy on the production ol isoglucose

19. That interpretation is incorrect. The nullitv of Regulation No 1293/79 pronounced by the Court, pamcularlv in a situation where. b\us ludgmenis of 29 October 1980, the Court had censured the failure to obtain an opinion of the Parliament but had dismissed the substantive alienations made against that regulation by the applicant and by Maizena GmbH did not compel the Council to maintain, for the period in question, a legal vacuum which would have led to an imbalance in the situation of various traders, manufacturers of sugar and isoglucose, on the market for sweeteners. On the contrary, it was open to it, under the terms of the judgments to take all appropriate measures to counter the effects of the declaration that Regulation No 1293/79 was void. The validity of the measures adopted by the Council in the form of Regulations Nos 387/81 and 388/81 forms precisely the subject-matter of this case.

20. The applicant then draws from the terms of Article 191 of the Treat)', under which regulations are to be published and decisions notified, the conclusion that Regulations Nos 1293/79 and 1592/80, which were individual decisions in so far as they laid down the quotas allocated to the isoglucose-producing undertakings, could not be retroactively replaced, even by virtually identical measures.

21. As regards the possibility of retroactively adopting a measure, following a declaration of nullity by the Court, no distinction may, in the case of the measures adopted in the present case, be drawn between a regulation and an individual decision. In fact, whether Regulations Nos 1293/79 and 1592/80 were followed by individual implementing measures, as was usually the case in fixing the levy due from each producer undertaking, or whether they fixed directly and individually the undertakings' quotas, in either case, it must be decided whether the principle of legal certainty protecting those concerned precluded the provisions of those regulations from being retroactively reinstated and under what conditions such retroactivity might be held to be proper.

22. Since the conditions necessary for retroactively reinstating, by means of the contested regulations, the provisions of Regulations Nos 1293/79 and 1592/80 were satisfied, the submission that the retroactivity given to Regulations Nos 387/81 and 388/81 is unlawful must be rejected.

II —. Second submission: Breach of the duty to state the reasons upon which a measure is based

23. The applicant claims that the Council has given inadequate reasons in Regulations Nos 387/81 and 388/81 for the retroactive effect given to those regulations and therefore has infringed the provisions of Article 190 of the Treaty.

24. According to the case-law of the Court the statement of the reasons on which a measure is based, which is required by Article 190 of the Treaty, must be adapted to the nature of the measure in question. It must enable the reasoning of the Community institution responsible for the measure to emerge clearly and unequivocally so as to enable those concerned to recognize the reasons for the measure adopted and the Court to exercise its power of review.

25. The statement of the reasons on which Council Regulation No 387/81 is based states first that Council Regulation (EEC) No 1111/77 of 17 May 1977 laying down common provisions for isoglucose, in the version established by Regulation (EEC) No 1293/79, provided for the application of a svstem of production quotas for the period from 1 July 1979 to 30 June 1980and, secondly, that in Cases No 138/79 and No 139/79 the Court of Justice of the European Communities, on 29 October 1980, annulled Regulation (EEC) No 1293/79, which amended Regulation (EEC) No 1111/77, on the grounds of an infringement of an essential procedural requirement; ... in rejecting all the alleged complaints of breach of the principles of the law of competition, of proportionality and of nondiscrimination made against the system of production quotas introduced by Regulation (EEC) No 1293/79, the Court affirmed that the latter regulation was substantively in conformity with Community law; ... it is therefore appropriate to reinstate inter alia the system of quotas concerned retroactively.

26. Council Regulation No 388/81 states in particular that, following the declaration by the ludgment of the Court in Cases 138 and 139/79 that Regulation No 1293/79 was void, in order to avoid anv doubts as to the legality of Article 2 of Regulation No I592/8C, u is appropriate that this amele should henceforth contain a reference to Article 9 of Regulation (EEC) No 1111/77 in the version established in Council Regulation (EEC) No 387/81.

27. Laconic as these reasons may be, they satisfy the requirement laid down by Article 190 of the Treaty. In fact, by referring to the system of production quotas, which moreover was well known to those concerned, and by the concern to preserve legal certainty which is shown in particular by Regulation No 388/81, to avoid any doubts as to the version applicable from then on of Article 9 of Regulation No 1111/77, the provisions of the preamble to the contested regulation set forth in essence the objective pursued by the institution responsible for the contested measure, namely to ensure continuity in time of the system restricting isoglucose production in order to ensure an equal division of burdens on the production of isoglucose and that of liquid sugar which are in direct competition on the market in sweeteners.

28. The submission as to breach of the requirement to state the reasons on which the measure was based must therefore be rejected as unfounded.

III —. Third submission: Infringement of Article 201 of the Treaty and Article 2 of the decision of 21 April 1970 on the replacement of financial contributions from Member States by the Communities' own resources

29. In its reply the applicant put forward a new submission based on the Council's lack of competence ţo create by means of Regulation No 387/81 a lew on the production of isoglucose and to extend its application by means of Regulation No 388/81. The applicant takes the view that that levy is revenue accruing to the Community budget which was not provided for by the legislation at the time at which Council Regulation No 70/243 of 21 April 1970 on the replacement of financial contributions from Member States bv the Communities' own resources was adopted (Official Journal, English Special Edition 1970 ill, p. 224). The Council therefore did not have the power to introduce the contested lew but, in pursuance of Article 2C1 of the Treats, was able merely to recommend its adoption by the Member States in accordance with their respective constitutional requirements.

30. The defendant and the intervener consider that submission to be inadmissible bv virtue of Article 42 (2) of the Rules of Procedure of the Court of Justice which allows no iresh issue to be raised during the course of the procedure unless it is based on matters of law or of fact which have come to light in the course of the written procedure.

31. In the present case, the new submission made by the applicant cannot be regarded as being based on matters of law or fact, which have come to light, in the course of the written procedure, since it is based on an alleged illegality which was capable of being known and pleaded as from the moment when Regulations Nos 387/81 and 388/81 came into existence. Nor, on the other hand, can it be regarded as amplifying a submission made previously because it is only in the reply that the legal rule alleged to have been infringed is mentioned and the cause of nullity thus invoked was referred to neither directly nor by implication in the application originating the proceedings.

32. The submission made by the applicant therefore raises an entirely fresh issue which is inadmissible since it is out of time under Article 42 (2) of the Rules of Procedure.

33. Although it is true that the applicant also seeks to rely on the provisions of Article 92 (2) of the Rules of Procedure which enables the Court at any time of its own motion to consider whether there exists any absolute bar to proceeding with the case, that provision, concerned as it is only with such absolute bars, does not allow a party to raise a fresh issue which is out of time and in breach of the provisions of Article 42 (2) of the Rules of Procedure.

34. However, since the submission relates to the powers of the author of the contested measure, the Court considers that it should state the reasons why the Council was competent to impose a levy on the production of isoglucosc.

35. Subiect to the procedural conditions which it lavs down, Article 43 of the Treatv assigns to the Council the usk of creating the common organization of the agricultural markets and laying down the rules relating thereto. By virtue of Amele 43 (3) ot' the Treaty, that common organization, in one of the forms provided for by paragraph (2) of that aniele, uhich comprise tnter alia a market organization, may include all measures required to attain the objectives set out in Article 39, in pamcular regulation of prices, aids for the production and marketing of the various products, storage and carryover arrangements and common machinery for stabilizing imports or exports.

36. Under the first subparagraph of Article 9 (8) of Council Regulation No 1111/17 as supplemented by the contested provisions of Regulation No 387/81, the isoglucose production lev)' is charged on the producer in respect of the quantity of isoglucose production which exceeds the basic quota without exceeding the maximum quota. Under the second subparagraph the amount of the isoglucose production levy is to be equal to the share of the sugar production levy borne by the sugar manufacturers fixed for the 1979/80 sugar year pursuant to Article 28 of Regulation No 3330/74. That share of the levy itself results from a complex method of calculation which is laid down in Article 27 of the latter regulation and makes sugar producers bear, by way of levies, the losses incurred by the Community as a result of the disposal of the quantity produced which exceeds human consumption in the Community. Thus the isoglucose production levy was established in order to contribute to stabilizing the Community market in sweeteners and, in particular, as the seventh recital in the preamble to Regulation No 1111/17 indicates, to export costs.

37. It follows from the foregoing that the isoglucose production levy comes within the terms of Articles 39 and 40 of the Treaty and that the Council was competent to establish it and to lay down detailed rules for its operation pursuant to Article 43 which, moreover, is referred to by the contested Regulations Nos 387/81 and 388/81.

38. As regards the Council Decision of 21 April 1970 on the replacement of financial contributions from Member States by the Communities'own resources, adopted in pursuance of Article 201 of the Treaty by the Member States in conformity with the provisions of that article, it should first be stressed that its purpose is to define own resources allocated to the Community budget and not to stipulate the Community institutions which are competent to impose duties, taxes, charges, levies or other forms of revenue. As a measure adopted under budgetary law, that decision does not prevent the Council from creating a levy such as the one imposed on the production of isoglucose where the power of the Council to create that levy has its basis, as has been said, in the provisions of the Treaty relating to the common agricultural policy.

39. Furthermore, Article 2 (a) of the decision of 21 April 1970 includes in Communities' own resources revenue coming from contributions and other duties provided for within the framework of the organization of the markets in sugar. In view of the developments which were inevitably to take place in Community production and marketing of sugar and, consequently, the need to adapt contributions, levies, refunds and price support measures to those developments in the requirements of the Community markets in sugar, it was not conceivable that the scope of application of the decision of 21 April 1970 could have been limited merely to the levies which were provided for when it was adopted, that is to say to the levies laid down at thai time by Regulation No 1069/67 of the Council of 18 December 1967 establishing a common organization of the market in sugar (Official Journal, English Special Edition 1967, p. 304). Although isoglucose was only produced in significant amounts in the Community several years after the adoption of the decision of 21 April 1970, the direct competition which it provides for liquid sugar on the market in sweeteners means that it must be included amongst the products which are marketed on the markets in sugar within the terms of the decision of 21 April 1970.

40. It follows thai the Council was competent to adopt the contested provisions contained in Regulations Nos 387/81 and 388/81 and that no provision of budgetary law affected thai power.

IV —. Costs

41. Under ihe terms of Article 69 of the Rules of Procedure the unsuccessful panv is to be ordered to pay ihe costs if they have been asked for in the successful party's pleading. The applicant has failed in all its submissions and must therefore be ordered to pay all the costs including those of the intervener.

On those grounds, THE COURT (Second Chamber) hereby:

1 Dismisses as unfounded the application for a declaration that Council Regulations Nos 387/81 and 388/81 are void;

2 Orders the applicant to pay the costs including those of the intervener.