Opinion of Advocate General
Mr President,
Members of the Court,
1. This opinion concerns two closely connected actions for annulment which have been brought by Abertal and 18 other Spanish producers' organizations against a Commission regulation (in Case C-213/91) and against a Council regulation (in Case C-264/91) which amend the conditions for the application of aid measures for nuts and locust beans.
Facts and legal context
2. Locust beans and nuts (mainly almonds, hazelnuts, walnuts and pistachios) are covered by the common organization of the market in fruit and vegetables. This market organization was established by Council Regulation (EEC) No 1035/72, Title II of which provides for the formation of producers' organizations, which may be given a role in regulating supply, quality and price.
3. In 1989 Council Regulation (EEC) No 789/89 added to the aforementioned regulation Title Ha, which contains specific measures for nuts and locust beans. The preamble to the regulation shows that the Community legislature was concerned by the technical backwardness and the low productivity of this submarket. In order to give a greater incentive to members of producers' associations to modernize their orchards, aid was henceforth to be granted only on condition that the producer presented a quality and marketing improvement plan.
4. The main rules governing these quality and marketing plans (the plans) are set out in the new Article 14d:
5. Council Regulation (EEC) No 789/89 set the maximum amount per hectare, referred to in the aforementioned paragraph 2, at ECU 300 for the first five years and ECU 210 for the next five years.
6. The scheme was amended twice in 1991 by two regulations. Commission Regulation (EEC) No 1304/91 contains new provisions concerning the amendment of approved plans and the information to be supplied in requests for aid, and amends the rules for advances on aid. Council Regulation (EEC) No 2145/91 amends the maximum aid which may be granted in the context of the 10 year plans.
The specific subject-matter of the actions for annulment
7. Case C-213/91. This application seeks the annulment of Article 1 of Commission Regulation No 1304/91, which amends Commission Regulation No 2159/89 in three respects.
8. Firstly, the rules which permit plans to be changed in the event of an increase or reduction in the surface area covered by the plans have been amended in two respects. As regards changes due to an increase in the surface area, the regulation introduces a new restriction in that such a change can only be requested once and only from the fourth year following the original approval of the plan. In relation to a reduction in the surface area covered by the plan, the regulation adds a new provision: The competent authority shall note any reduction in the surface area of the orchards covered by the plan that results from a decrease in the number of members of the producers' organization.
9. Secondly, the administrative provisions concerning applications for aid lodged pursuant to improvement plans which have already been approved are supplemented by the following requirement: Aid applications shall include all necessary information to enable the geographical location of that section of the orchard covered by each type of work carried out during the annual period in question to be ascertained. The invoices and supporting documents shall give a detailed reference to the part of the orchard in which the work in question has been carried out.
10. Thirdly, three amendments were made to the system for advances. A request for payment of the advance was already required to be accompanied by supporting documents showing that implementation of the part of the plan relating to the year in question had already begun. Previously, supporting documents had to relate to at least 20% of the estimated costs whereas they would now have to relate to at least 50% of the estimate. In addition, the application now had to include all the information required to identify that section of the orchard covered by the different types of work that make up the annual phase. Finally, the maximum amount of advances was amended. Formerly the amount of each advance was not to exceed 80% of the total financial contribution from the Member State and the Community. Now it shall not exceed 50% of the annual financial contribution by the Community ... This payment shall be subject to payment of 50% of the Member State's contribution ....
11. Under Article 2 of Regulation No 1304/91, those amendments were to enter into force on the third day following publication in the Official Journal, that is, on 21 May 1991.
12. The applicants seek the annulment only of Article 1 of Regulation No 1304/91 and therefore do not contest Article 2, concerning the entry into force of the regulation. Nevertheless, they base their action in large part on the alleged infringement of acquired rights, breach of the principle of the protection of legitimate expectations and of the principle that legislation must not have retrospective effect. These pleas are undoubtedly relevant to the immediate application of the new rules to previously approved improvement plans (and in particular the applicants' plans). That is why I do not consider that the application's silence regarding the annulment of Article 2 renders it inadmissible, particularly as neither the Council nor the Commission have objected that the application is inadmissible on this ground.
13. Case C-264/91. This application seeks the annulment of Article 1 of Council Regulation No 2145/91 (mentioned in point 6). That Article alters the maximum aid which may be granted for a 10 year plan and which was formerly fixed at ECU 300 for the first five years and at ECU 210 for the following five years. The maximum is now broken down as follows:
14. Under Article 3 of Regulation No 2145/91, those new maximum amounts apply forthwith in respect of improvement plans approved from the date of entry into force of the regulation (that is, after 23 July 1991, the date of publication in the Official Journal). With regard to plans approved prior to that date (as the applicants' plans were), the new maximum amounts apply from 1 September 1993. However, the regulation does not apply to expenditure committed before the date of entry into force ... for the execution of plans previously approved.
15. The applicants seek the annulment only of Article 1 of Regulation No 2145/91, not of the transitional provisions in Article 3. However, as in Case C-213/91, they base their action mainly on the alleged infringement of acquired rights, breach of the principle of the protection of legitimate expectations and of the principle that legislation must not have retrospective effect. Those pleas thus relate specifically to the application of the new maximum amounts to improvement plans which were approved before 23 July 1991 (as the applicants' plans were). Here again, I see no grounds for holding that the action for annulment is inadmissible.
Admissibility of actions by individuals according to the case-law of the Court
16. The Commission, the defendant in Case C-213/91, and the Council, the defendant in Case C-264/91, both put forward a plea of inadmissibility based on Article 91(1) of the Rules of Procedure. The Court has decided to rule separately on the question of admissibility and consequently this Opinion deals only with that question.
17. General points. As we know, Article 173 of the EEC Treaty, which relates to actions for annulment, makes a distinction between actions brought by a Member State or a Community institution with appropriate standing (first paragraph) and actions brought by all other natural or legal persons (second paragraph), hereinafter individuals.
18. The exact conditions subject to which individuals may bring an action for annulment under the second paragraph of Article 173 must be set out.
19. It is easy to establish whether a disputed act is formally addressed to the applicant because it will designate the applicant as the addressee. Where such is the case, and where the act is capable of having legal effects, the action for annulment is admissible.
20. The applicant is directly concerned. This criterion refers to the effects of the act as regards the applicant. The contested act must produce legal effects, those legal effects must be in relation to the applicant, and they must flow directly from the contested act itself — and therefore must not be the result of a subsequent independent decision by a Community institution or a Member State. Here independent decision does not mean a decision which results necessarily or automatically from the contested act but, on the contrary, a decision taken in exercise of a power of assessment or on the basis of criteria which had not been established at the time when the act was adopted.
21. The applicant is individually concerned. The second condition of admissibility requires more detailed explanation. In cases such as the present, the condition does not so much relate to the effects which the act produces in relation to the applicant as the question to whom the originator of the act intended to address it. There are differences in the nature of the addressees — whether the act is addressed to a specific or ascertainable person or to a group of persons defined in general and abstract terms — which constitute the very essence of what by nature distinguishes regulations from decisions. This is clear from the following citations from the case-law of the Court:
22. In order to be directly concerned by a regulation, it is not therefore enough to be affected in a particular manner which differs from the manner in which it affects other persons. It is necessary for the act to have been adopted with the particular situation of the persons concerned in mind or for the originator of the act to have been in a position to know that the act in question would affect the interests and the legal position of those persons alone. Neither is it enough, in order to be individually concerned, that the number — or even the identity — of the persons to whom the contested act applies can be ascertained. It does not necessarily follow from this that those persons were taken into account individually at the time when the act was adopted.
Admissibility in Case C-213/91
23. I shall now apply to Case C-213/91 the rules which have just been described. As already mentioned (in points 7 to 12 inclusive), this action seeks the annulment of Commission Regulation (EEC) No 1304/91 which amends in three respects the rules applying to quality and marketing improvement plans for nuts and locust beans. The rules in question concern the expansion or curtailment of plans on account of a change in the surface area affected, the administrative information to be supplied in requests for aid and the rules concerning advances on the annual instalment of aid.
24. The preamble to the contested regulation states the Commission's purpose in making these amendments. The new rules concerning changes to improvement plans were adopted because, first, it was necessary generally to specify the conditions subject to which such changes could be made — the existing conditions in Regulation No 2159/89 were indeed very limited — and because, secondly (specifically in relation to the rule that the surface area can be extended only after four years), it was found desirable to assess the viability and proper working of a plan before authorizing an extension of the surface area. The two other changes, relating to supporting documents and advances, were made because of the need to ensure that Community funds were being properly used. With regard to supporting documents and the payment of advances, the purpose of the amendments was to ensure that the work in the part of the orchard concerned was carried out in accordance with the plan. In relation to the payment of advances, the Commission states that the percentage of advances should be restricted and that payment in respect of an annual phase of implementation of a plan should only be approved once the proportion payable by the Member State for the previous year has actually been paid.
25. Having regard to the aforesaid general considerations, it would seem that the applicants are not in a position to show that they are directly concerned by the contested regulation. For that, it would be necessary that the contested regulation actually produced legal effects in relation to them. I consider that such cannot be the case having regard to the nature of the amendments made by the regulation. As mentioned above, those amendments relate to adjustments to approved plans because of changes in area, notification of details concerning the carrying out of operations qualifying for aid and the evidence appertaining thereto and the progress in implementing the plan and the related scheme for advances. All those amendments in fact stem from the Commission's concern to ensure that Community funds are actually used for the purposes for which they are intended, that their use can be effectively monitored and that advances are not paid unnecessarily or prematurely, or without being coordinated with aid payable by the Member State concerned. The applicants have not shown the slightest right to the continuance of the previous system in respect of any of the matters covered by the new rules, which therefore produce no direct legal effect in relation to them. In any event, even supposing that such rights had come into being, they would have arisen from the decision of the competent national authority approving the improvement plan in question and hence a subsequent decision independent of the contested act.
26. Even assuming that the contested regulation directly concerned the applicants, it does not appear at all to affect them individually. There is nothing in the regulation to indicate that it is intended to affect the applicants — either because that is the result desired by the originator of the act or because he was in a position to know that such would be the result — by reason of certain characteristics or a factual situation which distingishes them from all other persons and therefore designates them in the same way as an addressee of a decision.
Admissibility in Case C-264/91
27. As stated above (in points 13, 14 and 15), this action seeks the annulment of Council Regulation No 2145/91 which amends the maximum amount of aid that may be granted for quality and marketing improvement plans in the nut and locust bean sector.
28. There is no doubt that the act in question is a regulation by nature and in any case, therefore, cannot be contested by an action for annulment by individuals whose improvement plans were approved after it entered into force. In so far as they are concerned, it is clear that the regulation is of general application, like the basic Regulation No 790/89 which it amends.
29. In order to make a proper assessment of this claim, I shall revert briefly to the exact influence which the contested act may have on the position of the applicants or of other producers' organizations whose plans had already been approved. As I have said (in point 14), the contested regulation provides that as from 1 September 1993 the new maximum amounts of aid are to apply to improvement plans which have already been approved, that is to say, they apply from a date just over two years after the publication and the entry into force of the new regulation (23 July 1991). However, the regulation does not apply in respect of expenditure committed before the entry into force of the regulation for the execution of plans previously approved. Commission Regulation (EEC) No 3746/91 lays down certain detailed rules in this respect and provides that, for improvement plans which have already been approved, requests for modifications are to be lodged not later than 31 December 1992 and that for certain plans (whether modified or not), the five-year period for granting increased aid for grubbing operations followed by replanting and/or varietal conversion (see point 13 above) is to commence on the date on which the new maximum amounts take effect, that is, 1 September 1993.
30. Having regard to that implementing regulation, the effect of the disputed amendment of the maximum aid on producers' organizations whose plans had already been approved may be described as follows. There is no problem for those whose plans already included the operations which henceforth enjoy preferential treatment (namely grubbing followed by replanting and/or varietal conversion). They do not need to modify their plans and, from 1 September 1993, they will receive the increased aid (ECU 470 instead of ECU 300 or ECU 210) for five years. For the two or three years which then remain, they will receive slightly less aid than originally envisaged (ECU 200 instead of ECU 210). Taking the period as a whole, therefore, those producers' organizations benefit from the amendments.
31. As this is a potential effect of the contested regulation, it cannot be ruled out that the applicants may be directly concerned by the regulation within the meaning of Article 173 of the Treaty.
32. Nevertheless, even if the applicants were directly concerned, I consider that they are not in any event individually concerned. It is common ground that the 19 applicants and the 19 other producers' organizations whose improvement plans had already been approved when the contested regulation came into force are known by name and that they are affected in a different way to the group of producers' associations who are seeking recognition and approval of their improvement plans after the event. However, this still does not mean that they are individually concerned in the same way as addressees of a decision.
33. In conclusion, I consider that both the actions for annulment in Case C-213/91 and Case C-264/91 are inadmissible and that the applicants should be ordered to bear the costs.
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.