Opinion of Advocate General Van Gerven delivered on 21 April 1993

1 Original language: Dutch.

2 Council Regulation (EEC) No 1035/72 of IS May 1972 on the common organization of the market in fruit and vegetables (OJ, English Special Edition 1972 (II), p. 437).

3 Council Regulation (EEC) No 789/89 of 20 March 1989 instituting specific measures for nuts and locust beans and amending Regulation (EEC) No 1035/72 on the common organization of the market in fruit and vegetables (OJ 1989 L 85, p. 3).

4 Council Regulation (EEC) No 790/89 of 20 March 1989 fixing the level of additional flat-rate aid for the formation of producers' organizations and the maximum amount applied to aid for quality and marketing improvement in the nut and locust bean-growing sector (OJ 1989 L 85, p. 6).

5 Commission Regulation (EEC) No 2159/89 of 18 July 1989 laying down detailed rules for applying the specific measures for nuts and locust beans as provided for in Title IIa of Council Regulation No 1035/72 (OJ 1989 L 207, p. 19).

6 Commission Regulation (EEC) No 3403/89 of 13 November 1989 amending Regulation (EEC) No 2159/89 laying down detailed rules for applying the specific measures for nuts and locust beans as provided for in Title IIa of Council Regulation (EEC) No 1035/72 (OJ 1989 L 328, p. 23).

7 Commission Regulation No 1304/91 of 17 May 1991 amending Commission regulation (EEC) No 2159/89 laying down detailed rules for applying the specific measures for nuts and locust beans as provided for in Title IIa of Council Regulation (EEC) No 1035/72 (OJ 1991 L 123, p. 27).

8 Council Regulation (EEC) No 2145/91 of 15 July 1991 amending Regulation (EEC) No 790/89 as regards the maximum amount of aid for quality and marketing improvement in the nut and locust bean sector (OJ 1991 L 200, p. 1).

9 Amendment of Article 8(4) of Regulation No 2159/89 by Article 1(1) of Regulation No 1304/91.

10 Added to Article 8(5) of Regulation No 2159/89 by Article 1(2) of Regulation No 1304/91.

11 Added to third paragraph of Article 19 of Regulation No 2159/89 by Article 1(3) of Regulation No 1304/91.

12 Amendment of Article 22a(3) of Regulation No 2159/89 (as added by Regulation No 3403/89) by Article 1(4) of Regulation No 1304/91.

13 Article 2 of Regulation No 790/89, cited above.

14 Case 22/70 Commission v Council (ERTA) [1971) ECR 263, paragraph 42.

15 Case 294/83 Partie Ecologiste Les Verts v Parliament [1986] ECR 1339, paragraph 23.

16 In this respect the aid in question conforms with the usual division of tasks between the Community institutions and the Member States in the context of agricultural policy, where the Member States are entrusted with implementing aid measures; see also point 4 above.

17 Joined Cases 789/79 and 790/79 Calpak v Commission [1980] ECR 1949, paragraph 7; cited in many subsequent judgments and, most recently, in the order of 13 July 1988 in Case 160/88 R Fédération Européenne de la Santé Animale [1988] ECR 4121, paragraph 26.

18 The condition that the contested act be capable of having legal effect applies to all actions for annulment: see the ERTA and Les Verts ludgnicnts and Case 302/87 Parliament v Coimai [1988] ECR 5615, paragraph 20.

19 For example. Case 64/69 Compagnie Française [1970] ECR 221; Case 101/76 Scholten Honig [1977] ECR 797; the Calpak case, and Case 40/84 Casleels [1985] ECR 667.

20 In my opinion both approaches amount to the same tiling: to say that an act is a regulation by nature means at the same time that, by nature, it docs not concern the applicant directly and individually. See, however, H. G. Schermers and D. Waclbrocek, Judicial Protection in the European Communities. Kluwer, 1992, paragraph 406, p. 233.

21 Sec footnote 17 above.

22 An action bv a natural or legal person against an act (regulation) which does not applv to liis situation is inadmissible on the grounds of lack of legal interest: judgment in Case 88/76, Société pour l'Exportation des Sucres SA v Commission [1977] ECR 709, paragraph 2 of the summary, see p. 726.

23 No account is taken here of specific fields such as competition law or antidumping law, where the fact of an applicant being individually affected may be connected with certain circumstances, such as having been involved in the procedure which preceded the adoption of the contested act.

24 Order of 5 November 1986 in Case 117/86 UFADE v council and Commission [1986] ECR 3255, paragraph 9.

25 UFADE order, paragraph 11.

26 Case 25/62 Plaumann v Commission [1963] ECR 95, at p. 107; cited in many later judgments and, most recendy, in the order of 12 June 1992 in Case C-29/92 Asia Motor France [1992] ECR I-3935, paragraph 17.

27 Joined Cases 106/63 and 107/63 Töpfer v Commission [1965] ECR 525, in particular p. 533; Case 62/70 Bock v Commission [1971] ECR 897, paragraph 10; Case 11/82 Piraiki-Patraiki v Commission [1985] ECR 207, paragraph 31.

28 Calpak judgment, cited in footnote 16, paragraph 10.

29 Case 6/68 Zuckerfabrik Watemtedt v Council [1968] ECR 410. 415; cued in manv subsequent ludgments and, most, recently, in Joined Cases C-15/91 and C-108/91 Buckl [1992] ECR I-6061, paragraph 25.

30 That is to say, more than the seven other operations which, under Article 7 of Regulation No 2159/89, may be the subject of a quality and marketing improvement plan.

31 Commission Regulation (EEC) No 3746/91 of 18 December 1991 amending for the fourth time Regulation (EEC) No 2159/89 laying down detailed rules for applying the spécifie measures for nuts and locust beans as provided for in Title IIa of Council Regulation (EEC) No 1035/72 (OJ 1991 L 352. p. 53).

32 In their observations on the Commission's statement in intervention, the applicants claimed that Regulation No 3746/91 was illegal because it went beyond the Commission's power of implementation. I am not required to consider this particular point but my view is that the Commission docs not seem to have made abnormal use of its power of implementation by envisaging the amendment of improvement plans which had alreadv been approved and by providing that, as regards those plans, the five-vear period starts to run from 1 September 1993.

33 Those whose plans already provided for operations enjoying preferential treatment therefore have no interest in contesting the new rules. I assume that the present applicants are not in tins position. If thev were, their action for annulment would have to be ruled inadmissible on that ground alone.

34 For the legal possibility, see Regulation (EEC) No 3746/91 which I have commented upon above. With regard to practical feasibility, the Commission contends — convincingly, in my opinion — that the seven other operations (which are not preferred by the new rules) which may be provided for by improvement plans (these operations are listed in Article 7, indents 3 to 9, of Regulation (EEC) No 2159/89 cited above) are such that, technically, they do not require continuity in time or, at least, no more than is offered by the two-year transitional period.

35 See the examples with figures annexed to the Commission's statement in intervention.

36 Article 3 of the contested regulation, amplified by Commission Regulation (EEC) No 3746/91.