Opinion of Advocate General Lenz delivered on 27 October 1992

1 Original language: German.

2 Council Regulation of 18 November 1985 laying down general rules for the description and presentation of sparkling wines and aerated sparkling wines, OJ 1985 L 320, p. 9.

3 Council Regulation of 19 June 1989 amending Regulation (EEC) No 3309/85 laying down general rules for the description and presentation of sparkling wines and aerated sparkling wines, OJ 1989 L 202, p. 12.

4 See the definition of that term in the fourth paragraph of Article 1 of Regulation No 823/87 (OJ 1987 L 84, p. 59).

5 The first subparagraph was also amended by Regulation No 2045/89.

6 Sec the fourth indent of the second subparagraph of Article 15(3) of Regulation No 823/87 (OJ 1987 L 84, p. 59) as amended by Regulation No 2043/89 (OJ 1989 L 202, p. 1).

7 Council Regulation of 13 July 1992 laying down general rules for the description and presentation of sparkling wines and aerated sparkling wines, OJ 1992 L 231, p. 9.

8 See the judgment in Case 76/79 Könecke v Commission [1980] ECR 665, paragraphs 8 and 9; in particular the Opinion of Advocate General Reischl in that case, at pp. 687-689.

9 Joined Cases 97, 193, 99 and 215/86 Asiens v Commission [1988] ECR 2181.

10 Sec the first recital in the preamble to Regulation No 2333/92.

11 See Joined Cases 250/86 and U/87 RAR v Council and Commission [1989] ECR 2045 (cf. headnote and paragraph 11 of the full judgment).

12 Only the transitional system of the final subparagraph would, partially, cease to be justified.

13 See Case 37/71 Jamet v Commission [1972] ECR 483, paragraphs 9 to 11.

14 See paragraph 12 of the case cited in the previous footnote as well as, for examples of the practice of the Court, Case 192/83 Greece v Commission [1985] ECR 2791 and Joined Cases 56 and 58/64 Consten and Grundig v Commission [1966] ECR 299.

15 Consistent case-law on the distinction between a regulation and a decision: see for example Case 26/86 Deutz und Geldermann v Commission [1987] ECR 941, paragraph 7; Joined Cases 97, 193, 199 and 215/86 [1988] ECR 2181, paragraph 13; the terms used, which refer generally to measures of a legislative nature, derive írom the Order of 13 July 1988 in Case 160/88 R Fédération Européenne de la Santé Animale and Others v Commission [1988] ECR 4121, paragraph 27.

16 See paragraph 7 of the judgment in Deutz und Geldermann (previous footnote).

17 See paragraph 15 of the judgment in the Asiens case (footnote 8).

18 See Joined Cases 16 and 16/72 Confédération Nationale des Producteurs de Fruits et Légumes v Council [1962] ECR 471, at p. 479 (the end of the first paragraph of Section 3).

19 Joined Cases 41 to 44/70 International Fruit Company v Commission [1971] ECR 411, paragraphs 16 to 22.

20 See the pertinent examination of the claim which Advocate General Mischo made in his Opinion at pp. 945, 946). From that point of view it would be relevant for the numerus clausus clause whether, as the applicant thinks, the contested condition applied only to producers who had traditionally used the term méthode champenoise. See in that respect von Winterfeld's criticism in Möglichkeiten der Verbesserung des individuellen Rechtsschutzes im europäischen Gemeinschaftsrecht, Neue Juristische Wochenschrift 1989, p. 1409. It is, however, in no way established that meeting that criterion is sufficient to classify a measure as a decision; see the extensive observations of Advocate General Tesauro in his Opinion of 26 September 1989 in Usines Coopératives de Déshydratation du Vexin v Commission [1989] ECR 3811, at pp. 3819, 3821. See also mv observations below on the question whether it is of individual concern to the applicant (paragraph 40 et seq.).

21 Sec the line of cases on the terra of individual concern (initially in Case 25/62 Plaumann v Commission [1963] ECR 95, at p. 107).

22 See the judgment in Deutz und Celdermann, paragraph 12.

23 Established case-law: sec for example Case 101/76 Koninklijke Scholten Honing v Council and Commission [1977] ECR 797, paragraph 6.

24 Joined Cases 16 and 17/62 Producteurs de Fruits et Légumes v Council [1962] ECR 471, at p. 479.

25 See the discussion by Advocate General Jacobs in his Opinion of 21 March 1991 in Case 358/89 Extramet Industrie v Council [1991] ECR. I-2501 at p. 2507, paragraphs 40 to 48.

26 Joined Cases 239/82 and 275/82 Allied Corporation v Commission [1984] ECR 1005, paragraph 11.

27 Case 53/83 Allied Corporation v Council [1985] ECR 1621, paragraph 4.

28 (Footnote 24) paragraph 13 et seq.

29 Sec the observations of Advocate General Jacobs in his Opinion in the Extramet casc (above, footnote 24), paragraph 42.

30 The Producteurs de Fruits et Légumes judgment (footnote 23, above), section 3 at p. 479, was clearly to that effect.

31 Compare the line of reasoning followed in the judgment in Deutz und Geldermann (footnote 14, above) and the statements to the same effect on the distinction between regulations and decisions (Case 6/68 Zuckerfabrik Watenstedt v Council [1968] ECR 409 at p. 415, first paragraph) and on the requirement of individual concern (RAR — footnote 10, above —paragraph 14 and the Order in Joined Cases C-232/91 and C-233/91 Petridi [1991] ECR I-5351, paragraph 11).

32 Above, paragraphs 25 to 27.

33 Sec Article 13(1) of Regulation No 2423/88, OJ 1988 L 209, p.l.

34 Opinion of 8 July 1992 in Joined Cases C-15/91 and C-108/91 Bucki and Others v Commission [1992] ECR I-6061, I-6074.

35 i.e. because the contested measure could only be adopted in the form of a regulation.

36 That case was an action for annulment which Advocate General Gulmann nevertheless considered on the basis of the criterion that the third paragraph of Article 175 of the Treaty must in principle be interpreted in harmony with the second paragraph of Article 173 (paragraph 19 at the foot of the Opinion).

37 See the observations in the Opinion of Advocate General Jacobs, ibid, paragraphs 23 to 29 as well as the judgments in Joined Cases C-133/87 and C-150/87 Nashua v Commission [1990] ECR I-719 and Case C-156/87 Gestetner v Commission [1990] ECR I-781.

38 Case 307/81 Alusuisse v Council and Commission [1982] ECR 3463; Joined Cases 239 and 275/82 Allied Corporation v Commission [1984] ECR 1005; Orders in Case 279/86 Sermes v Commission [1987] ECR 3109 and in Case 301/86 Frimodt Pedersen v Commission [1987] ECR 3123 and in Case 205/87 Nuova Ceam v Commission [1987] ECR 4427.

39 See paragraph 22 et seq., in particular paragraph 34, above.

40 Sec the Opinion of Advocate General Mischo, ibid, (footnote 19), p. 947 et seq.

41 Opinion in Case 244/88 (footnote 19, above), at p. 3821 et seq.

42 Case C-152/88 Sofrimport v Commission [1990] ECR I-2477.

43 A similar consideration applies, in addition to that relating to the causal connection, in actions by third undertakings in relation to the competition rules: see my Opinion of 17 September 1992 in Case C-313/90 CIRFS and Another v Commission [1993] ECR I-1125, I-1148, paragraphs 83 to 86 and 88 to 90.

44 Footnote 27, above.

45 Paragraph 35 et seq., above.

46 See the particulars about the Spanish market in quality sparkling wines psr and the applicant's share thereof (annex 5 to the applicant's observations to the objection to admissibility, p. 4).

47 Journal Officiel de la Republique Française of 5 July 1975, p. 6813.

48 See annexes 4 and 6 to the applicant's defence to the Council's objection.

49 See Case C-236/90 Maier v Freistaat Bayern [1992] ECR I-4483, paragraph 25.

50 Case 12/74 Commission v Germany [1975] ECR 181.

51 Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 1992 L 208, p. 1) does not apply, according to the secona paragraph of Article 1(1), to wine products or alcoholic drinks.

52 Paragraph 7 of the judgment.

53 Annex 4 to the defence.

54 Annex 6 to the defence.