Report for the Hearing delivered in Case C-229/88

I — Facts and procedure

1. The common organization of the market in oils and fats is governed by Regulation (EEC) No 136/66/EEC of the Council of 22 September 1966 (Official Journal, English Special Edition 1965-66, p. 221).

2. In order to encourage the oilseed processing industry to use seeds originating in the Community, Article 27(1) of Regulation No 136/66, as amended by Council Regulation (EEC) No 1454/86 of 13 May 1986 (Official Journal L 133, 21.5.1986, p. 8) provides that if the target price for a species of seed is higher than the world market price, aid is to be granted for seed of that species harvested and processed in the Community. Subject to certain minor exceptions and without prejudice to the special provisions laid down in Article 27a, the amount of that aid is to be equal to the difference between the world market price and the target price.

3. The Council laid down the rules applicable to the grant of the subsidy for oilseeds in Regulation (EEC) No 1594/83 of 14 June 1983 on the subsidy for oilseeds (Official Journal 1983, L 163, p. 44), amended by Council Regulation (EEC) No 935/86 of 25 March 1986 (Official Journal 1986, L 87, p. 5). The detailed rules for the application of the subsidy system were laid down in Commission Regulation (EEC) No 2681/83 of 21 September 1983 (Official Journal 1983, L 266, p. 1).

4. According to the second subparagraph of Article 3(2) of Regulation No 1594/83, as amended by Regulation No 935/86, the amount of the subsidy is to be that which is applicable on the day on which the Member State concerned identifies the seed. However, Article 4 provides that the person concerned may apply to have the amount of the subsidy fixed in advance. In such a case, as can be seen from the third subparagraph of Article 3(2), the amount of the subsidy is that which is applicable on the day on which the application for advance fixing is lodged and is applied to seeds identified during the period of validity of the advance-fixing part of the certificate which, according to Article 11 of Regulation No 2681/83, is, in principle and unless a derogation is granted by the Commission, five months for colza and rape seed and four months for sunflower seed, the time-limit to run from the month following that during which the application was lodged. In both cases, the Commission may, in certain cases, extend the period of validity of the certificates. The amount of the subsidy depends on the species, the period and the country in which the seeds are harvested or processed.

5. The advance-fixing part of the certificate is in principle issued on the first working day following that on which the application is lodged, subject to Article 8 of Regulation No 1594/83, as amended by Regulation No 935/86, which provides as follows:

6. The applicants, whose activities consist, in particular, of the processing of oilseeds, applied on 7 June 1988 to the competent authorities for the advance fixing of the processing subsidy in respect of a total quantity of approximately 370000 tonnes of colza seed, rape seed and/or sunflower seed.

7. The rates applicable at that time were laid down in Commission Regulation (EEC) No 1507/88 fixing the amount of the subsidy on oilseeds (Official Journal 1988, L 135, p. 31), which entered into force on 1 June 1988.

8. However, on 7 June 1988, the Commission, considering that the conditions laid down in Article 8 of Regulation No 1594/83, as amended, were fulfilled, adopted Regulation (EEC) No 1587/88 (Official Journal L 141, p. 55), which suspended advance fixing of the subsidy for colza, rape and sunflower seed in the case of certificates the applications for which were lodged from 7 to 11 June 1988.

9. On the same day, the Commission adopted Regulation (EEC) No 1584/88 of 7 June 1988 (Official Journal 1988, L 141, p. 48) fixing the new amount of the subsidy on oilseeds at a rate below that in force on 7 June 1988, particularly in regard to colza, rape and sunflower seed.

10. Following the adoption of Regulation No 1587/88, the applicants were informed by their national authorities of the contents of that regulation and of the rejection of their applications for advance fixing of the subsidy, lodged on 7 June 1988.

11. They therefore brought these proceedings for a declaration that Commission Regulation No 1587/88 suspending advance fixing of the subsidy for colza, rape and sunflower seed is void in so far as it applies to applications lodged on 7 June 1988.

12. The application was received at the Court Registry on 10 August 1988.

13. By application lodged at the Court Registry on 31 August 1988, the applicants applied under Articles 185 and 186 of the EEC Treaty and Article 83 of the Rules of Procedure for the suspension of the operation of Regulation No 1587/88 and for an interlocutory order requiring the Commission to take appropriate measures to ensure that, on the third working day after the date on which the order suspending operation of the decision is made, the applicants obtain advance-fixing certificates for the processing of oilseeds at the subsidy rates applicable on 7 June 1988 relating to the quantities of rape or colza seed or sunflower seed indicated in the applications for advance fixing lodged by them on 7 June 1988. The application for interim measures was dismissed by order of the President of the Court of 26 September 1988.

14. In a document relating to a procedural issue lodged at the Court Registry on 28 October 1988, the Commission raised an objection of inadmissibility and asked the Court, under Article 91 of the Rules of Procedure of the Court, to rule on that objection without deciding the substance of the case.

15. The applicants submitted their written observations in reply to the objection of inadmissibility on 13 January 1989.

16. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure on the question of admissibility only without any preparatory inquiry.

17. By order of 21 June 1989, the Court also decided, pursuant to Article 95(1) and (2) of the Rules of Procedure, to assign the case to the Fourth Chamber.

II — Conclusions of the parties

1. The Commission claims that the Court should:

2. In their written observations submitted in reply to the Commission's objection of inadmissibility, the applicants contend that the Court should dismiss the objection.

III — Submissions and arguments of the parties

1. The Commission points out first of all that in the Court's case-law the consistent interpretation of the second paragraph of Article 173 of the Treaty has been that the aim of the paragraph is, in particular, to avoid the possibility that the Community institutions, simply by choosing the form of a regulation, can exclude proceedings by an individual against a decision which concerns him directly and individually and to emphasize that the choice of form cannot change the nature of a measure.

2. The applicants claim that their application is admissible.

1 Language of the case: English.