Opinion of Mr Advocate General Mischo

Mr President,

Members of the Court,

According to previous decisions of the Court, the second paragraph of Article 173 of the Treaty makes the admissibility of proceedings instituted by an individual for a declaration that a measure is void dependent on fulfilment of the condition that the contested measure, although in the form of a regulation, in fact constitutes a decision which is of direct and individual concern to him. The objective of that provision is in particular to prevent the Community institutions, merely by choosing the form of a regulation, from being able to exclude an application by an individual against a decision of direct and individual concern to him and thus to make clear that the choice of form may not alter the nature of a measure.

Nevertheless an action brought by an individual is not admissible in so far as it is directed against a regulation having general application within the meaning of the second paragraph of Article 189 of the Treaty, the test for distinguishing between a regulation and a decision, according to the settled case-law of the Court, being whether or not the measure in question has general application. It is therefore necessary to appraise the nature of the contested measures and in particular the legal effects which they are intended to produce or in fact produce.

According to the same decision, measures are of general application where they apply to objectively determined situations and entail legal effects for categories of persons regarded generally and in the abstract.

In raising this objection of inadmissibility the Council — whose conclusions are supported by the Commission, which has intervened in these proceedings — asks the Court to declare, in application of those principles, that Article 6 (5) of Council Regulation (EEC) No 3309/85 of 18 November 1985, laying down general rules for the description and presentation of sparkling wines and aerated sparkling wines, is of just such general application, so that the German undertaking Deutz und Geldermann, a producer and merchant of sparkling wines, cannot be regarded as being individually concerned by that provision.

It should be observed first of all that Article 6 (5) contains two distinct provisions, namely a general rule and a temporary derogation.

The general rule, contained in the first and second subparagraphs, consists in a prohibition on the use, for the purposes of describing a quality sparkling wine, of any reference to a method of production containing a geographical name if the product in question may not be given the designation of origin concerned.

That rule constitutes without doubt a provision having general application as defined by the Court in the judgment I have cited.

As the Council points out in its written observations, that prohibition of indeterminate duration is applicable to all producers and merchants of sparkling wines, present and future, whether they market sparkling wines produced in the Community or imported sparkling wines. That general and abstract rule is therefore applicable to an indeterminate category of persons and concerns the applicant only as a present sparkling-wine merchant. That character, however, may be acquired by any other person wishing to engage in that business. Therefore the prohibition certainly does not concern a closed and limited group of affected traders which may not alter in the future.

Yet the action brought by Deutz und Geldermann is not in fact directed against the general prohibition contained in the first and second subparagraphs. The applicant asks the Court to declare that Council Regulation No 3309/85 is void in so far as Article 6 (5) provides that reference to the method of production known as méthode champenoise may be used, if such a usage was traditional, only for eight more winegrowing years.

The essential aim of the action is therefore to secure the removal of the words for eight winegrowing years from the third subparagraph of Article 6 (5).

That being so, it must be examined whether the transitional provision in question is of direct and individual concern to the applicant.

It should be said at once that the provision in question is undeniably of direct concern to the applicant as a user of the méthode champenoise.

The provision in question is in fact contained in a regulation which is by definition directly applicable, does not require any implementing measures on the part of the Community administration or the national administrations and leaves them no margin of discretion.

The issue therefore boils down to the question whether the third subparagraph of Article 6 (5), although contained in a regulation, may be considered to be an individual decision or a bundle of individual decisions because it is based on the criterion of traditional usage and therefore seems capable of affecting only a limited number of traders whose identity is ascertainable.

1. The Council relies on an extremely broad interpretation of the concept of traditional usage which would preclude Deutz und Geldermann from being individually concerned.

2. The applicant maintains that in reality the transitional measure concerns only present producers of sparkling wines and not traders because it relates to the traditional use of a method of production which only producers may have used.

3. However that may be, the decisive argument in this case is the following.

1 Translated from the French.

2 See in particular the judgment of 29 January 1985 in Case 147/83 Münchener Import-Weinkellerei Herold Bindern GmbH v Commutimi [1985] ECR 257 and the judgment of 6 October 1982 in Case 307/81 Alusuisse Italia SpA v Council and Commission [1982] ECR 3463

3 Official Journal 1985, L 320, p. 9.

4 See the judgment in Alusuisse v Council and Commission, cited above, at paragraph 11 of the decision.

5 Judgment of 18 November 1975 in Case 100/74 Société C. A. M. SA v Commission [1975] ECR 1393, paragraph 19 at p. 1403.

6 Judgment of 14 July 1983 in Case 231/82 Spijker Kwasten BV v Commission [1983] ECR 2559, paragraphs 8 to 10 at p. 2566.

7 Judgment of 13 May 1971 in Joined Cases 41 to 44/70 International Fruit Company NV and Others v Commission [1971] ECR 411, paragraphs 16 to 21; judgment in Société C A. M. SA v Commission cited above, paragraphs 14 to 19; judgment of 31 March 1977 in Case 88/76 Société pour l'exportation des sucres v Commission [1977] ECR 709, paragraphs 9 to 11; judgment of 3 May 1978 in Case 112/77 August Topfer & Co. GmbH v Commission [1978] ECR 1019, paragraph 9; judgments of 27 November 1984 in Case 232/81 Agricola Commerciale Olio Srl and Others v Commission [1984] ECR 3881, and Case 264/81 SpA Savma v Commission [1984] ECR 3915, paragraph 11.

8 Judgments of 29 March 1979 in Case 113/77 NTN Toyo Bearing Company Ltd and Others v Council [1979] ECR 1185, paragraph 11; Case 119/77, Nippon Seiko KK and Others v Council and Commission [1979] ECR 1303, paragraph 14; Case 120/77, Koyo Seiko Co. Ltd and Others v Council and Commission [1979] ECR 1337, paragraph 23; Case 121/77 Nachi Fujitoshi Corporation and Others v Council [1979] ECR 1363, paragraph 11; judgments of 29 October 1980 in Case 138/79 Roquette frères SA v Council [1980] ECR 3333 and Case 139/79 Maizena GmbH v Council [1980] ECR 3393, paragraphs 14 to 16.

9 That may be the case in particular with regulations imposing ami-dumping duties: see the judgment of 29 March 1979 in Case 118/77 Import Standard Office (ISO) v Council [1979] ECR 1277, paragraphs 19 to 22; the judgment in Nippon Seiko, cited above, paragraph 13, in Koyo Seiko, cited above, paragraphs 18 to 21 and in Nachi Fujikosbi, cited above, paragraphs 8 and 9; the judgment of 21 February 1984 in Joined Cases 239 and 275/82 Allied Corporation v Commission [1984] ECR 1005, paragraphs 10 to 12; the judgment of 20 March 1985 in Case 264/82 Timex Corporation v Council and Commission [1985] ECR 849, paragraphs 11 to 15; and the judgment of 23 May 1985 in Case 53/83 Allied Corporation v Council [1985] ECR 1621, paragraph 4.