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.

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, ( 1 ) 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. ( 2 ) 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. ( 3 )

The Commission laid down detailed rules for applying the specific measures for nuts and locust beans in Regulation (EEC) No 2159/89. ( 4 ) This regulation sets out in detail the conditions for recognizing producers' organizations, the measures which improvement plans must contain, the administrative information which must be supplied and the procedure for the approval of plans. Regulation (EEC) No 3403/89 introduced the possibility of obtaining advances on aid for implementing improvement plans. ( 5 )

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. ( 6 ) Council Regulation (EEC) No 2145/91 amends the maximum aid which may be granted in the context of the 10 year plans. ( 7 )

The present actions seek the annulment of those two regulations. The applicants are 19 Spanish producers' associations whose improvement plans had already been approved before the adoption of the contested regulations. According to the information supplied by the Commission, a total of 38 producers' associations (all Spanish) were in this situation. Since then other producers' associations, not only in Spain but also in France and Italy, have lodged applications for recognition.

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. ( 8 ) 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 )

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 )

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 )

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’. ( 12 ) 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.

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’.

According to the judgment in the ERTA case, the Member States and the aforesaid institutions may bring an action for annulment against ‘all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects’. ( 13 ) On the other hand, so far as individuals are concerned, the second paragraph of Article 173 of the Treaty restricts the possibility of bringing actions for annulment by reference to the form and the nature of the contested act. This does not mean that complete legal protection will not be afforded to individuals. The following principle set out in the Les Verts judgment applies equally to individuals:

‘the European Economic Community is a Community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty. In particular, in Articles 173 and 184, on the one hand, and in Article 177, on the other, the Treaty established a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of the measures adopted by the institutions’. ( 14 )

For individuals, however, complete legal protection is in large measure afforded by their right to apply to the national court which can then, on the basis of Article 177, refer a question to the Court for preliminary ruling which may, in particular, relate to the legality of the acts of Community institutions. The restriction in the second paragraph of Article 173 on the power of individuals to bring a direct action for annulment before the Court must be viewed in the light of the alternative offered by proceedings for a preliminary ruling. This is also the case here: if the Court were to rule that the present actions were inadmissible, that would not mean that the applicants have no remedy available to them at all. The aid they receive in the context of their improvement plans is granted annually by an administrative decision of the competent national authorities (here, those of Spain). ( 15 ) At the hearing the Commission pointed out, and the applicants did not dispute, that the applicants may, if they wish, lodge an appeal against the administrative decision before the competent national court, which may then refer a question to the Court for a preliminary ruling on the legality of the contested regulations.

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.

Firstly, any individual may, under that provision, institute proceedings ‘against a decision addressed to that person’. The rest of that provision indicates that the decision in question must he formally addressed to the applicant.

Secondly, an individual may bring an action against ‘a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former’. The Court has previously confirmed that the purpose of this provision is to make it clear that ‘the choice of form cannot change the nature of the measure’. ( 16 ) The provision therefore enables actions to be brought against decisions which, by reason of their nature, are addressed to the applicant.

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, ( 17 ) the action for annulment is admissible.

It is less easy to determine when a decision is by its nature addressed to the applicant. The second paragraph of Article 173 states that the decision must be ‘of direct and individual concern to the [applicant] ’. The Court's case-law refining this test and applying it in specific cases is profuse. For this purpose the Court sometimes takes as a starting point the concept of ‘decision’ (by nature), which is then contrasted with the concept of ‘regulation’ (by nature). ( 18 ) In most cases, however, it starts from the idea of acts ‘of direct and individual concern.’ ( 19 ) I propose to choose the latter concept because it focusses directly on the two elements which may impart to an act the nature of a decision addressed to the applicant. Let me examine them briefly.

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, ( 20 ) those legal effects must be in relation to the applicant, ( 21 ) 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, ( 22 ) 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:

‘By virtue of the second paragraph of Article 189 of the EEC Treaty the criterion for distinguishing between a regulation and a decision is whether the measure at issue is of general application or not. The essential characteristic of a decision arises from the limitation of the persons to whom it is addressed, whereas a regulation, being essentially of a legislative nature, is applicable not to a limited number of persons, named or identifiable, but to categories of persons viewed in the abstract and in their entirety’. ( 23 )

Regulations ‘are addressed in abstract and general terms to indeterminate categories of persons and they apply to objectively determined situations’ ( 24 )

and:

‘Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons’. ( 25 )

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. ( 26 ) 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.

By way of illustration, here are two passages from judgments of the Court:

‘Nor is the fact that the choice of reference period is particularly important for the applicants, whose production is subject to considerable variation from one marketing year to another as a result of their own programme of production, sufficient to entitle them to an individual remedy. Moreover, the applicants have not established the existence of circumstances such as to justify describing that choice ... as a decision adopted specifically in relation to them ...’ ( 27 )

and

‘A measure does not lose its character as a regulation simply because it may be possible to ascertain with a greater or lesser degree of accuracy the number or even the identity of the persons to which it applies at any given time as long as there is no doubt that the measure is applicable as a result of an objective situation of law or of fact which it specifies and which is in harmony with its ultimate objective’. ( 28 )

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.

Being producers' organizations whose improvement plans were already approved, the applicants are not affected in a different way from a producers' organization which might request approval for an improvement plan in the future. There appears to be nothing to indicate that the contested regulation was adopted specifically in the light of the applicants' plans which were in the process of being implemented or that the regulation affected only the applicants' interests and/or legal position.

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.

The preamble to the contested regulation states what the Council sought to achieve by malting this amendment. The aim was to promote grubbing operations followed by replanting and/or varietal conversion because, from a technical viewpoint, these operations contribute most to improving quality. ( 29 ) This is why the maximum aid for these operations was considerably increased whereas it was reduced for other operations.

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.

The question which must now be asked is whether it is otherwise for the applicants, whose improvement plans were approved before that date. The applicants submit that the contested act is of direct and individual concern to them, in other words that it constitutes a decision in relation to each of them.

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 ( 30 ) 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. ( 31 )

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. ( 32 )

The position is otherwise for producers' organizations — and I presume that they include the applicants — whose improvement plans made no provision for the operations which now enjoy preferential treatment. Unless they modify their plans, they will suffer loss because of the reduction of aid (from ECU 300 and ECU 210 to ECU 200). However, they do have the possibility of modifying their plans ( 33 ) to include the operations which are now given preferential treatment under the new rules, following which they may receive increased aid for five years. Consequently, taking the period as a whole, they will benefit from the new rules. ( 34 )

In short, so far as the applicants are concerned, the contested regulation has the effect of prompting them to modify their improvement plans and to include the preferred operations, following which they will receive aid which is (considerably) higher than they could have expected previously. If they do not modify their plans, there will be a limited reduction in such aid.

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.

Whether they will actually be affected depends, in my opinion, on whether the applicants whose plans have been approved can show that the relevant Community provisions give them a right to the subsidies which the contested regulation might have adversely affected. I consider that the applicants cannot show that such a right does in fact exist. The plans approved by the Member States (after notification to the Commission and subject to the Commission's observations) do not entail, in my opinion, a legally binding commitment on the part of the Community institutions to grant, for the whole duration of the ten-year plan, the maximum amounts of aid provided for by the regulations in question. If such were the case, any change in the existing policy would be problematic. Consequently, I am of the opinion that the applicants' legal position is not directly affected by the contested regulation.

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.

As appears from the contested regulation, the only difference in treatment which it creates as between plans already approved and those to be approved afterwards is that provision is made for a transitional period for those already approved and an opportunity to adjust those plans. ( 35 ) However, this does not seem to me sufficient to conclude that the producers' organizations in question are individually concerned. It is normal for a regulation to deal with situations in different ways, depending on objective factual or legal differences, but that does not change its nature. Where it is shown that different treatment is dictated by objective differences connected with the purpose of the act, and not based on particuliarities of the persons affected by the regulation, I see no reason for considering that the classes of persons affected by those differences in treatment are individually concerned.

The fact that transitional rules were adopted for plans already approved seems to me to be an objective difference of this kind because those transitional rules do not lead to the substantive provisions of the contested regulation (that is to say, the new differentiated aid ceilings) applying to previously approved plans in a different way from that in which they apply to new plans.

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.