61981J0242

MEASURES ADOPTED BY THE INSTITUTIONS - LEGAL NATURE - REGULATION OR DECISION - CRITERIA

( EEC TREATY , ART . 189 )

ACCORDING TO THE SECOND PARAGRAPH OF ARTICLE 189 OF THE TREATY THE CRITERION FOR DISTINGUISHING BETWEEN A REGULATION AND A DECISION IS WHETHER OR NOT THE MEASURE IN QUESTION HAS GENERAL APPLICATION . FOR THAT PURPOSE IT IS NECESSARY TO CONSIDER THE NATURE OF THE CONTESTED MEASURE AND IN PARTICULAR THE LEGAL EFFECTS WHICH IT IS INTENDED TO HAVE OR DOES IN FACT HAVE .

A MEASURE DOES NOT CEASE TO BE A REGULATION BECAUSE IT IS POSSIBLE TO DETERMINE MORE OR LESS EXACTLY THE NUMBER OR EVEN THE IDENTITY OF THE PERSONS TO WHOM IT APPLIES AT ANY GIVEN TIME AS LONG AS IT ESTABLISHED THAT SUCH APPLICATION TAKES EFFECT BY VIRTUE OF AN OBJECTIVE LEGAL OR FACTUAL SITUATION DEFINED BY THE MEASURE IN QUESTION IN RELATION TO ITS PURPOSE .

IN CASE 242/81

SA ROQUETTE FRERES , A COMPANY INCORPORATED UNDER FRENCH LAW , WHOSE REGISTERED OFFICE IS AT LESTREM , PAS-DE-CALAIS , REPRESENTED BY MARCEL VEROONE AND JACQUES DUTAT , OF THE LILLE BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J . LOESCH , ADVOCATE , 2 RUE GOETHE ,

APPLICANT ,

V

COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY DANIEL VIGNES , DIRECTOR OF ITS LEGAL DEPARTMENT , ASSISTED BY ARTHUR BRAUTIGAM , AN ADMINISTRATOR IN THE SAID DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF H . J . PABBRUWE , DIRECTOR OF LEGAL AFFAIRS AT THE EUROPEAN INVESTMENT BANK , 100 BOULEVARD KONRAD-ADENAUER ,

DEFENDANT ,

AND

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JEAN-CLAUDE SECHE , LEGAL ADVISER IN ITS LEGAL DEPARTMENT , WITH AND ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF THE SAID DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

INTERVENER ,

APPLICATION FOR A DECLARATION THAT COUNCIL REGULATION NO 1785/81 OF 30 JUNE 1981 ON THE COMMON ORGANIZATION OF THE MARKETS IN THE SUGAR SECTOR ( OFFICIAL JOURNAL 1981 , L 177 , P . 4 ) IS VOID ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 7 SEPTEMBER 1981 SA ROQUETTE FRERES , A COMPANY INCORPORATED UNDER FRENCH LAW , ASKED THE COURT PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY TO DECLARE VOID COUNCIL REGULATION NO 1785/81 OF 30 JUNE 1981 ON THE COMMON ORGANIZATION OF THE MARKETS IN THE SUGAR SECTOR ( OFFICIAL JOURNAL 1981 , L 177 , P . 4 ).

2 ACCORDING TO ARTICLE 1 ( 1 ) THEREOF , THE REGULATION COVERS INTER ALIA ' ' ISOGLUCOSE ' ' , WHICH COMES UNDER SUBHEADING 17.02 D I OF THE COMMON CUSTOMS TARIFF , AND ' ' FLAVOURED OR COLOURED ISOGLUCOSE SYRUPS ' ' , WHICH COME UNDER SUBHEADING 21.07 F III . THE APPLICANT IS ONE OF THE MAIN PRODUCERS OF ISOGLUCOSE IN THE COMMUNITY .

3 IN ITS DEFENCE LODGED ON 6 NOVEMBER 1981 THE COUNCIL CONTENDED THAT THE ACTION WAS INADMISSIBLE . IN THE COUNCIL ' S VIEW THE ACTION DOES NOT SATISFY THE CONDITIONS OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY INASMUCH AS THE CONTESTED MEASURE IS NOT A DECISION IN THE FORM OF A REGULATION AND IS NOT OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANT .

4 THE APPLICANT CLAIMS THAT THE CONTESTED MEASURE IS IN FACT A DECISION TAKEN BY THE COUNCIL WITH REGARD TO ISOGLUCOSE PRODUCERS IN THE COMMUNITY AND IS AIMED AT LIMITING THEIR PRODUCTION BY THE ESTABLISHMENT OF QUOTAS AND LEVIES . THE UNDERTAKINGS , OF WHICH THERE ARE NINE IN THE WHOLE OF THE COMMUNITY , ARE KNOWN TO THE COUNCIL AND ARE PERFECTLY IDENTIFIABLE . THE PRODUCTION QUOTAS ALLOTTED TO THE REGIONS ARE IN FACT EQUAL TO THOSE OF THE UNDERTAKINGS . FOR THAT REASON THE APPLICANT MAINTAINS THAT ALTHOUGH THE CONTESTED MEASURE IS IN THE FORM OF A REGULATION IT IS OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANT AS A PRODUCER OF ISOGLUCOSE AND THE APPLICANT MAY IN CONSEQUENCE BRING AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 173 FOR A DECLARATION THAT THE DECISION IS VOID .

5 TO DECIDE BETWEEN THOSE TWO OPPOSITE VIEWS IT IS NECESSARY FIRST OF ALL TO RECALL THE ESTABLISHED CASE-LAW OF THE COURT ON THE CRITERIA DISTINGUISHING A REGULATION FROM A DECISION , INCLUDING ONE IN THE FORM OF A REGULATION .

6 ACCORDING TO THE SECOND PARAGRAPH OF ARTICLE 189 OF THE TREATY THE CRITERION FOR DISTINGUISHING BETWEEN A REGULATION AND A DECISION IS WHETHER OR NOT THE MEASURE IN QUESTION HAS GENERAL APPLICATION . FOR THAT PURPOSE IT IS NECESSARY TO CONSIDER THE NATURE OF THE CONTESTED MEASURE AND IN PARTICULAR THE LEGAL EFFECTS WHICH IT IS INTENDED TO HAVE OR DOES IN FACT HAVE .

7 AS THE COURT HELD IN ITS JUDGMENT OF 26 FEBRUARY 1981 IN CASE 64/80 F . GIUFFRIDA AND G . CAMPOGRANDE ( 1981 ) ECR 693 , A MEASURE DOES NOT CEASE TO BE A REGULATION BECAUSE IT IS POSSIBLE TO DETERMINE MORE OR LESS EXACTLY THE NUMBER OR EVEN THE IDENTITY OF THE PERSONS TO WHOM IT APPLIES AT ANY GIVEN TIME AS LONG AS IT IS ESTABLISHED THAT SUCH APPLICATION TAKES EFFECT BY VIRTUE OF AN OBJECTIVE LEGAL OR FACTUAL SITUATION DEFINED BY THE MEASURE IN QUESTION IN RELATION TO ITS PURPOSE .

8 ALTHOUGH THE APPLICATION IS FOR A DECLARATION THAT REGULATION NO 1785/81 IS VOID , THE APPLICANT MAINTAINS SIMPLY THAT THE PRODUCTION LEVY ON ISOGLUCOSE PROVIDED FOR BY ARTICLE 28 THEREOF HAS BEEN ESTABLISHED IN BREACH OF THE PROCEDURE LAID DOWN IN ARTICLE 201 OF THE TREATY AND IN DISREGARD OF DECISION 70/243 OF THE COUNCIL OF 21 APRIL 1970 ON THE REPLACEMENT OF FINANCIAL CONTRIBUTIONS FROM MEMBER STATES BY THE COMMUNITIES ' OWN RESOURCES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( I ), P . 224 ). THUS THE CASE IS SOLELY CONCERNED WITH THE PRODUCTION LEVY ON ISOGLUCOSE .

9 ARTICLE 28 OF REGULATION NO 1785/81 DOES NOT FIX THE AMOUNT OF THE LEVY FOR EACH PRODUCER OF ISOGLUCOSE . MOREOVER , THE AMOUNT CANNOT BE DIRECTLY INFERRED FROM ITS PROVISIONS ; ON THE CONTRARY , IT PROVIDES THAT THE AMOUNTS OF THE LEVIES ARE TO BE ADOPTED IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN ARTICLE 41 , THAT IS TO SAY A PROCEDURE INVOLVING THE COMMISSION , THE MANAGEMENT COMMITTEE FOR SUGAR AND , IF NECESSARY , THE COUNCIL . ACCORDING TO THE PROVISIONS OF ARTICLE 28 THE AMOUNTS OF THE LEVIES DEPEND ON OBJECTIVE FACTORS , ALBEIT COMPLEX ONES WHICH VARY WITH EACH MARKETING YEAR AND TAKE INTO ACCOUNT IN PARTICULAR THE PRODUCTION OF SUGAR AND ISOGLUCOSE IN THE COMMUNITY , THE EXPORT COSTS BORNE BY THE COMMUNITY AND THE PRODUCTION LEVIES ON SUGAR AND ISOGLUCOSE .

10 IT FOLLOWS FROM THAT THAT THE PROVISIONS OF THE REGULATION THE LEGALITY OF WHICH THE APPLICANT IS CHALLENGING ARE OF GENERAL APPLICATION AND DO NOT IN THEMSELVES HAVE INDIVIDUAL AND DIRECT EFFECTS FOR THE APPLICANT .

11 PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY THE APPLICATION MUST THEREFORE BE DISMISSED AS INADMISSIBLE .

COSTS

12 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING . SINCE THE APPLICANT HAS FAILED IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS INCLUDING THOSE OF THE INTERVENER .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE ;

2.ORDERS THE APPLICANT TO PAY THE COSTS INCLUDING THOSE OF THE INTERVENER .