‘3.

A premium may be paid to potato starch manufacturers.

4.

The Council, acting by a qualified majority on a proposal from the Commission, shall adopt rules for the application of this article and fix the amount of the production refund and the amount of the premium.’

1.

As far as concerns this important difference of opinion it is not disputed that the representative of the Italian Government in the Council cast a vote without any reservation in favour of the measures which are relevant to this case and also that, when the before-mentioned implementing provisions to be adopted by the Commission were discussed by the Management Committee for Cereals there was no evidence of any opposition on the pan of Italy. On the other hand the case-law of the Coun, which is to be borne in mind in connexion with the conduct of the representative of the Italian Government during the preparatory meetings of the Council, has already stressed that reservations or statements which were made in the course of preparatory discussions have no relevance unless they are recorded in the wording of a Council decision (cf. judgment of 18 February 1970 in Case 38/69 Commission of the European Communities v Italian Republic [1970] 1 ECR 47).

If a Member State's right of action is then examined in the light of the foregoing in a case such as this, it certainly appears that a solution is without any doubt hardly to be found by relying on the principle of legal certainty. A decisive factor in support of this view — apart from the Italian Government's submissions on the substance of this principle — is also that the validity of acts of the Council of Ministers can not only be challenged by actions brought by Member States but also by taking other legal steps. It is only necessary to think of references by national courts for rulings on validity pursuant to Article 177 of the EEC Treaty of actions for damages founded on the non-contractual liability of servants and institutions of the Community under Article 215 of the EEC Treaty which can also be brought by private individuals and which involve a judicial review of legality.

On the other hand in my view less clear cut is the answer to the question whether in a case such as this considerations, which are based on the principles of waiver and approbation or on the inadmissibility of a venire contra factum proprium, are not nevertheless applicable even though it is not to be ruled out that these legal concepts do not apply directly and exactly to the facts of the present case. On this point it is of importance that Article 2 of the Merger Treaty provides that the composition of the Council shall be as follows:

‘The Council shall consist of representatives of the Member States. Each Government shall delegate to it one of its members.

…’

Even if it is correct to say that the Council is not a common organ of the Member States, according to the texts which have been quoted, the principle that the conduct and acts of a representative are invariably to be imputed to the person represented must nevertheless also be borne in mind. If that is taken into account and if the underlying notions which form the basis of the legal concepts are allowed to come into play — in particular the concept of ‘estoppel’ mentioned in Case 117/75 [which was removed from the Court register] may be called to mind — then it can in fact hardly be acceptable that, after a complex economic evaluation has taken place, to which, in the context of protracted and difficult negotiations for package deals, during which the rule do ut des applied, specific legal consequences were attached, a Member State which had participated in all those negotiations through a representative, should dissociate itself subsequently from them, in so far as one question is concerned, in order to have that question judicially reviewed.

Furthermore there are in addition to these matters in every case considerations which are to be placed in the sphere of the protection of a legal interest. It is true that Article 173 of the EEC Treaty does not expressly mention it, or for that matter an interest in taking proceedings. But it is with good reason assumed that this requirement that the litigant must have an interest to protect forms the basis of the system of legal protection under the Treaty, to be more precise not only as far as private applicants are concerned, which is not disputed, but also as far as the so-called privileged applicants are concerned. A number of well-known writers also make this assumption (Schlochhauer, Die Gerichts barkeit der EGKS. Archiv des Volkerrechts. III. Band. S. 401 [The jurisdiction of the ECSC, Archives of Public International Law, Vol III. p. 401]; Steindorff, Die Nichtigkeitsklage im Recht der Europaischen Gemeinschaft fur Kohle und Stahl, 1972, S. 48 [The action for annulment under the law of the European Coal and Steel Community, 1972, p. 48]; Ehle, Klage- und Prozeßrecht des EWG-Vertrags, 1966, Anmerkungen 11 und 14 zu Artikel 173 [The law relating to the right to institute proceedings and the procedural law of the EEC Treaty, Notes 11 and 14 on Article 173]). Mr Advocate General Roemer mentioned this assumption in his opinion in Case 24/62. judgment of the Court of 4 July 1963, Government of the Federal Republic of Germany v Commission of the European Communities [1963] ECR 63, at p. 71. Although in contrast Mr Advocate General Lagrange in his opinion in Joined Cases 2 and 3/60. judgment of 13 July 1961, Niederrheinische Bergwerks-Aktiengesellschaft und Untemehmensverband des Aachener Steinkohlenbergbaues v High Authority of the European Coal and Steel Community [1961] ECR 133, at p. 154, stressed that not even evidence of an interest is required of the Member States for applications for annulment under Article 33, this may well only represent an apparent departure from that assumption. It is in fact a reasonable assumption that Lagrange is more likely to be moving in the same direction as Séché (La notion d'intérêt à agir dans le droit de la Communauté Européenne du Charbon et de l'Acier, R.G.D.I.P. [The concept of an interest in instituting proceedings under the law of the European Coal and Steel Community, General Review of Public International Law], Vol. 1962, p. 299 et seq.), who, in the case of the Member States, mentions a presumption that they have an interest in instituting proceedings and thereby acknowledges that it is quite possible to rebut it in the light of the particular facts of a specific case.

If this starting point is regarded as generally applicable so that in consequence it also covers actions under Article 173 of the EEC Treaty, then it is impossible not to proceed in the present case on the basis that the action is inadmissible, thereby following Krsjak (Note on the judgment of 21 March 1974 in Case 131/73 Government of Ireland v Council of the European Communities [1974] 1 ECR 285, in Gazette du Palais of 12 and 13 February 1975, p. 10), who described an action brought by a Member State against a Council regulation adopted unanimously as ‘anomalie institutionnelle’ [‘an institutional anomaly’]. My opinion is that to substantiate this view it is sufficient to place on record that the material problem in this case — to maintain a balance between maize starch and potato starch by means of appropriate measures — has been carefully considered and discussed in committees of the Council. At these meetings the representative of Italy had the opportunity to bring about a different evaluation, and during those meetings a solution to the conflict of interests had to be found. On the other hand I do not regard the question how far the discussions and investigations went at the time as being so important. As far as concerns this aspect of the matter one point at issue in this case, as is known, could not be completely clarified in the proceedings: although the defendant and the intervener supporting it stated that all the data had been exhaustively discussed and that the particulars of the production costs of maize starch and potato starch had not been challenged by the Italian representative, the applicant, who however does not deny that the figures for the processing costs, which it mentioned in the court proceedings, had not been produced at the time, submitted that, contrary to the requests of its representative, separate calculations of the processing costs and the value of the by-products were not produced by the Community officials and consequently not discussed either. If this is actually what happened, as the Italian Government now asserts, then its representative would have had to make an appropriate reservation when the Council regulation in question was being worked out in detail. As this was not done and what is more the representative of the Italian Government in the end voted in favour, the only possible interpretation is that the original reservations had been dropped. It is on the basis of this situation as far as concerns the interests of the parties that we must proceed and the Italian Government must also abide by it.

However, under such circumstances — and it has indeed not been alleged for example that the Italian representative had disregarded his Government's instructions, that fresh and important factors had been disclosed or that when the situation was assessed a serious mistake came to light — it cannot in my view in fact be regarded as permissible that the measures which are under discussion in this case at the request of the Government whose representative on the Council has considered them to be favourable, be subjected in court proceedings to a fresh assessment.

2.

If this conclusion is thought to go too far — incidentally Daig in the Kommentar zum EWG-Vertrag [EEC Treaty Commentary], published by Von der Groeben-Boeckh-Thiesing, 2 Auflage, S. 220 ff, [2nd Edition, p. 220 et seq.] states that under such circumstances an action is inadmissible if certain conditions are fulfilled — nevertheless the question at least arises, as far as concerns the admissibility of some of the grounds of claim, whether or not a strict standard is to be applied. Even if an interest in a specific cause of action does not in principle have to be substantiated, this is certainly not to be dismissed out of hand.

On this point it is necessary to recall briefly the grounds upon which the Italian Government challenges the regulations for the payment of the premium to potato starch manufacturers: it complains, on the one hand, that the statement of reasons upon which they are based is inadequate and inconsistent, and it submits, on the other hand, as far as concerns the content of the regulations, that the granting of the premium is in breach of the prohibition of discrimination, the principle of proportionality and also — this ground ranks as a misuse of powers — contravenes the objectives of Article 39 of the Treaty.

On the first point I would consider it to be very much open to question whether a Member State, which had participated by its representative in the preparation and adoption of a specific measure, can subsequently complain that the main grounds in the statement of the reasons on the basis of which the act was -adopted have only been inadequately stated. A Member State does not need to be given precise particulars of the act, because either it knows about it from the outset or it has only itself to blame, if it has neglected to use its influence to have all the main reasons discussed when the act in question was worked out in detail. I therefore do not consider that a Member State's claim that the statement of reasons is inadequate is justified at all if the act in question is one for which it was partly responsible.

As far as concerns the other claims which relate to the content of the measure which has been adopted — granting of a premium to producers of potato starch — it is important to bear in mind that the measure in question is a decision of economic policy, adopted as a result of a difficult evaluation of complex economic conditions. In this connexion the institution adopting the measure in question has, according to the well established case-law, a wide discretion and the judicial review thereof is consequently restricted to the questions whether ‘it [the exercise of such discretion] contains a manifest error or constitutes a misuse of power or whether the authority did not clearly exceed the bounds of its discretion’ (cf. judgment of 25 May 1978 in Case 136/77 Firma A. Racke v Hauptzollamt Mainz [1978] ECR 1245). But if. with reference to such measures, a Member State acknowledges in the end through the affirmative vote of its representative that an evaluation proposed by the Commission and agreed to by the other delegations is correct, then it is in fact reasonable to assume, even if at the outset objections were raised and a thorough examination was called for, that the institution, which on the strength of such an evaluation has come to a unanimous decision, can scarcely have made a manifest error. It must therefore be accepted that with reference to a measure of this kind every Member State which actively participates in its adoption is bound to find itself in a hopeless position in legal proceedings relating thereto, unless, although this clearly does not apply in this case, it can give reasons deserving very serious consideration for the mistake it made earlier. This view applies in the present case in the same way to all aspects of the review which has been requested, that is to say, not only to the alleged breach of the prohibition of discrimination but also to the disregard of the principle of proportionality and to the alleged misuse of powers in connexion with the contravention of the objectives of Article 39.

Since however no aspects other than those mentioned are at issue, this additional consideration, which only applies to the admissibility of certain causes of action, would be bound to lead to the conclusion that, since nothing remains to be judicially reviewed, the application must be dismissed as inadmissible.

(a)

On this aspect of the matter attention must first be drawn, as the Council has done, to the fact that according to a very large number of decided cases the requirements to be met in fulfilling the duty to give a statement of the reasons upon which acts of general application are based are less strict than those to be met in fulfilling that duty in the case of acts affecting only individuals. In the former cases a concise statement of reasons, which does not have to go into every detail but only mentions the most important considerations suffices. Furthermore the context as a whole in which the rules were adopted and the reasons stemming logically from such a context are to be taken into consideration. In particular I refer in connexion with this point to the judgment of the Court of 13 March 1968 in Case 5/67 W. Beus GmbH & Co. v Hauptzollamt Munchen [1968] ECR 83, the judgment of the Court of 20 June 1973 in Case 80/72 N.V. Koninklijke Lassiefabrieken v Hoofdproduktschap voor Akkerbouwprodukten [1973] 1 ECR 635, the judgment of the Court of 18 March 1975 in Case 78/74 Deuka, Deutsche Kraft/utter GmbH, B.J. Stolp v Einfuhr- und Vorratstelle für Getreide und Futtermittel [1975] 1 ECR 421, the judgment of the Court of 23 February 1978 in Case 92/77 An Bord Bainne Co-operative Limited v Minister for Agriculture [1978] ECR 497, and to the judgment of the Court of 25 October 1978 in Joined Cases 103 and 145/77 Royal Scholten-Honig (Holdings) Limited v Intervention Board for Agricultural Produce; Tunnel Refineries Limited v Intervention Board for Agricultural Produce [1978] ECR 2037.

(b)

In considering Council Regulation (EEC) No 1125/78 which was adopted to amend Regulation (EEC) No 2727/75 it is-necessary to call to mind what can already be gathered from Regulation No 2742/75 which is connected with the latter regulation. Its statement of reasons mentions the competition between ‘agricultural’ starch and synthetic starch products and also the competition between maize starch and potato starch and the need as far as they are concerned to maintain a balance owing to their interchangeability. This regulation makes it particularly clear that owing to the difficulties caused by the still continuing special situation of potato starch it is absolutely essential for it to be given special treatment. On the other hand the statement of reasons in the preamble to Regulation No 1127/78, which mentions the increasing pressure exerted by maize starch competing with potato starch caused by the value of the by-products, is also to be taken into consideration.

Once this correlation is understood there can hardly be any doubt that, as far as concerns the kind of difficulties with which the manufacturers of potato starch have to cope and their origin, the relevant statements of reasons are adequate.

(c)

Following the Council's contentions it is also to my mind evident that the statement of the reasons upon which Regulation No 1125/78 is based is not inconsistent. The second recital in the preamble thereto, which states that products competing for the same outlets ought to be granted the same production refunds, clearly refers specifically to Article 1 of the regulation which provides for the refunds. On the other hand the sixth recital, which mentions ‘the constraints imposed on the potato starch industry’ states the particular reason for the measure adopted at the same time, namely for the payment of a premium to producers of potato starch. In this connexion it is to be borne in mind that, as far as that is concerned, because of the differences in the regulation of the two markets — a market organization for cereals with guaranteed prices and sales on the one hand and the absence of a market organization with such arrangements for potatoes on the other hand — there has never been completely equal treatment with maize starch (cf. inter alia judgment of the Court of 12 July 1977 in Case 2/77 Hoffmann's Stärkcfabriken AG v Hauptzollamt Bielefeld [1977] 2 ECR 1375.

(d)

Finally, it seems that in the case of the statement of the reasons upon which Regulation No 1127/78 is based — because in this connexion the view and judgment of the draftsman of the regulation are determinative — the reference to the higher value of the by-products, which arise in the manufacture of maize starch, is in fact sufficient. If therefore there is no mention of production costs in this connexion this can only be understood as meaning that the Council, for its part, did not proceed on the basis that there had been substantial changes but was only afraid that the balance between potato starch and maize starch would be disturbed because of the difference in the trend of the value of the respective by-prod ucts. With reference to the fact that nothing more has been said about the by-products, it may be recalled that the statement of reasons does not have to deal with every detail of a regulation and that in this connexion the fixing of the premium also permits certain conclusions to be drawn.

(e)

I am therefore of the opinion that in this case — if the assertion of a claim by a Member State of lack of reasoning is regarded as tenable — the annulment of the contested regulation by means of this cause of action is not justifiable.

(a)

As far as this reasoning is concerned I see no occasion either to go back to the year 1967 and the trend of the following years. On the one hand the justification of the rules which applied in the past, has not till now been called in question. On the other hand I also do not believe that I can assert that the principle that a certain differential in the costs of raw materials, a certain ‘delta’, is always to be taken into consideration, applies to the rules. Finally the rules which are alone relevant in this case and apply to the 1978/79 marketing year are not based directly on those of the preceding year in this sense that proof that maize starch has been placed at a disadvantage — either in the 1974/75 marketing year or in the following years — would thereby also automatically be evidence of such a handicap for the 1978/79 marketing year, that is to say, before the introduction of the rules for the payment of the premium. For that to be the case too many factors and constituent elements in the rules have been continually changing since 1967. For instance the costs for maize, the minimum price for potatoes, the amounts of the refund, the processing costs and the value of the by-products.

In fact, it would probably not be possible to prove that maize starch was placed at a disadvantage as far back as 1967 if reliance is placed, not as the plaintiff does, on a Commission document of November 1965 but on a later document of June 1966. That document appears to establish — on this point I refer to the calculations on page 15 of the French version of the rejoinder — that after taking into account transportation costs and the value as well as the volume of the by-products in the various Member States maize starch had a competitive advantage of about 26 units of account. Furthermore the figures do not seem to me to establish that the increase in the value of the by-products obtained from the manufacture of maize starch — as far as the wide variety of possible uses and the increase in the volume of sales are concerned they are clearly a much more important factor than the by-products of potato starch which can only be used as feeding-stuffs — was completely offset by the widening of the ‘delta’ in previous years and that in this respect there has been no further increase from 1977 onwards.

(b)

If attention is accordingly focused on the conditions expected for the 1978/79 marketing year and the question is asked whether, after all the submissions during the proceedings, it has been established that the premium at issue led to the balance between maize starch and potato starch being stabilized, then it is necessary to proceed on the basis of the calculations of the production costs for one tonne of starch, which the Council has produced on pages 17 and 18 of its defence (French version). After taking into consideration the costs of the raw materials, the processing costs and the value of the by-products these calculations show that maize starch can be manufactured at 187,46 units of account and potato starch at 207,2 units of account. The Italian Government's answer to this is that the processing costs have gone up more than the Council has assumed, namely — since there are no Italian producers of potato starch figures were only mentioned for maize starch — not merely from 40 to 49 units of account but on average throughout the Community — even higher figures apply to Italy — to 77 units of account. The Italian Government also considers that the figure included in the calculations for the value of the by-products arising out of the manufacture of maize starch is incorrect because that value does not take account of the special processing costs involved.

It is my impression — if I may say this straightaway — that having regard to all the evidence which has been produced during the proceedings it is hardly possible to clarify this dispute fully.

3.

For the purpose of the further consideration of the dispute I am assuming that the effect of the rules for the granting of a premium is to establish a balance between maize starch and potato starch. Should it in fact have to be assumed — possibly after obtaining an expert opinion — that the premium as well as establishing a balance gives unilateral preferential treatment to the manufacturers of potato starch and thereby causes distortion in the conditions of competition, then on such an assumption it would be absolutely clear that it would be to that extent illegal. There certainly could not then be said to be any objective justification within the meaning of the prohibition of discrimination. There would clearly also be a breach of the principle of proportionality, because the rules for the attainment of the objectives sought to be achieved by them would not be absolutely necessary.

4.

The alternative examination of the substance of the case consequently leads to the conclusion that an. unequivocal determination of the question whether the premium paid to the producers of potato starch disturbs the balance of competition with the producers of maize starch is still not possible. An expert opinion on this issue is absolutely necessary. If it were to confirm the economic assessment, which in the Council's view is correct, it would then also be clear that there cannot be said to have been any failure to take into account the objectives of Article 39 of the EEC Treaty, any breach of the prohibition of discrimination or any breach of the principle of proportionality.

III —

Since I am in the first place of the opinion that the application which has been lodged is to be regarded as inadmissible I submit that the Court should dismiss it for that reason. Since neither the defendant nor the Commission which has intervened in support of it has made any application as to costs, the costs of the action including the costs of the interlocutory proceedings for the adoption of an interim measure, in which the applicant was also unsuccessful, the parties may bear their own costs.