61981J0045

MEASURES ADOPTED BY INSTITUTIONS - REGULATION NO 3318/80 - LEGAL NATURE

( EEC TREATY , ART . 189 ; COMMISSION REGULATION NO 3318/80 )

IT MUST BE DEDUCED FROM ITS PURPOSE , FROM THE FRAMEWORK OF THE REGULATIONS OF WHICH IT FORMS PART AND ALSO FROM ITS VERY NATURE THAT REGULATION NO 3318/80 TEMPORARILY SUSPENDING THE ADVANCE FIXING OF EXPORT REFUNDS FOR BEEF MEAT PRODUCTS IS INDEED A REGULATION WHICH IS OF GENERAL APPLICATION ; THE NATURE OF SUCH A MEASURE AS A REGULATION IS NOT CALLED IN QUESTION BY THE SOLE FACT THAT IT MAY BE POSSIBLE TO DETERMINE THE NUMBER OR EVEN THE IDENTITY OF CERTAIN TRADERS CONCERNED .

IN CASE 45/81

ALEXANDER MOKSEL IMPORT-EXPORT GMBH & CO . HANDELS KG , BUCHLOE , FEDERAL REPUBLIC OF GERMANY , REPRESENTED BY P . WENDT , RECHTSANWALT , HAMBURG , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF J . JANSEN-HOUSSE , 21 RUE ALDRINGEN ,

APPLICANT ,

SUPPORTED BY

TIAC HANDELMAATSCHAPPIJ BV , APELDOORN , NETHERLANDS , REPRESENTED BY DAVID VAUGHAN QC , INSTRUCTED BY MESSRS CLYDE & CO ., SOLICITORS , LONDON , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , CENTRE LOUVIGNY , 34 RUE PHILIPPE-II ,

INTERVENER ,

AND

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JORN SACK , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

OBJECTION AT THE PRESENT STAGE OF THE PROCEEDINGS THAT THE ACTION BROUGHT BY THE APPLICANT UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY IS INADMISSIBLE ,

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 23 FEBRUARY 1981 , AN UNDERTAKING TRADING IN BEEF AND VEAL , ALEXANDER MOKSEL IMPORT-EXPORT GMBH & CO . HANDELS KG , A COMPANY INCORPORATED UNDER GERMAN LAW , SUPPORTED BY TIAC HANDELMAATSCHAPPIJ BV , INTERVENER , A COMPANY INCORPORATED UNDER NETHERLANDS LAW , BROUGHT AN ACTION UNDER ARTICLE 173 OF THE EEC TREATY SEEKING A DECLARATION THAT EITHER REGULATION NO 3318/80 OF 19 DECEMBER 1980 TEMPORARILY SUSPENDING THE ADVANCE FIXING OF EXPORT REFUNDS FOR BEEF MEAT PRODUCTS ( OFFICIAL JOURNAL 1980 , L 345 , P . 20 ) IN SO FAR AS IT CONCERNS THE APPLICANT , OR THE TELEX MESSAGE WHICH THE COMMISSION SENT TO THE BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG ( FEDERAL OFFICE FOR THE ORGANIZATION OF AGRICULTURAL MARKETS ), ( HEREINAFTER REFERRED TO AS ' ' THE FEDERAL OFFICE ' ' ) ON 19 DECEMBER 1980 , OR BOTH , ARE VOID .

2 IN THE COURSE OF ITS ACTIVITIES THE APPLICANT REGULARLY , WITH REGARD TO ITS CONTRACTS FOR THE EXPORT OF BEEF AND VEAL , AVAILS ITSELF OF THE OPPORTUNITY OF HAVING EXPORT REFUNDS FIXED IN ADVANCE AS PROVIDED FOR BY ARTICLE 5 ( 3 ) AND ( 4 ) OF REGULATION NO 885/68 OF THE COUNCIL OF 28 JUNE 1968 LAYING DOWN GENERAL RULES FOR GRANTING EXPORT REFUNDS ON BEEF AND VEAL AND CRITERIA FOR FIXING THE AMOUNT OF SUCH REFUNDS ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION , 1968 ( I ), P . 237 ), AS SUPPLEMENTED BY COUNCIL REGULATION NO 1504/76 OF 21 JUNE 1976 AS REGARDS THE GENERAL RULES FOR ADVANCE FIXING OF EXPORT REFUNDS FOR BEEF AND VEAL ( OFFICIAL JOURNAL 1976 , L 168 , P . 7 ).

3 UNDER THOSE PROVISIONS , ON FRIDAY 12 DECEMBER 1980 THE APPLICANT SUBMITTED TO THE FEDERAL OFFICE APPLICATIONS FOR ADVANCE FIXING OF EXPORT REFUNDS . OWING TO A DELAY IN GIVING NOTICE OF THE BANK ' S SECURITY , THE FEDERAL OFFICE , IN ACCORDANCE WITH ARTICLE 14 OF COMMISSION REGULATION NO 3183/80 OF 3 DECEMBER 1980 LAYING DOWN COMMON DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF IMPORT AND EXPORT LICENCES AND ADVANCE FIXING OF CERTIFICATES FOR AGRICULTURAL PRODUCTS ( OFFICIAL JOURNAL 1980 , L 338 , P . 1 ), CONSIDERED THE APPLICATIONS AS HAVING BEEN LODGED ON THE FIRST WORKING DAY FOLLOWING THE DAY ON WHICH THEY WERE RECEIVED , IN THIS CASE ON MONDAY 15 DECEMBER 1980 .

4 ACCORDING TO ARTICLE 2 ( 1 ) OF COMMISSION REGULATION NO 2378/80 OF 4 SEPTEMBER 1980 ON ADDITIONAL SPECIAL DETAILED RULES GOVERNING THE ISSUE OF EXPORT LICENCES IN THE BEEF AND VEAL SECTOR ( OFFICIAL JOURNAL 1980 , L 241 , P . 19 ), THE EXPORT LICENCES CORRESPONDING TO THOSE APPLICATIONS COULD NOT BE ISSUED UNTIL THE FIFTH WORKING DAY FOLLOWING THE DAY ON WHICH THE APPLICATIONS WERE LODGED , THAT IS TO SAY , IN THIS CASE MONDAY 22 DECEMBER 1980 , PROVIDED THAT NO SPECIAL MEASURES HAD BEEN TAKEN DURING THAT PERIOD .

5 SINCE SUCH MEASURES WERE TAKEN ON 19 DECEMBER 1980 BY REGULATION NO 3318/80 , THE FEDERAL OFFICE REFUSED THE APPLICANT ' S APPLICATIONS IN A DECISION OF 23 DECEMBER 1980 , IN WHICH IT REFERRED BOTH TO THAT REGULATION AND TO A TELEX MESSAGE WHICH HAD BEEN SENT TO IT BY THE COMMISSION ON 19 DECEMBER 1980 TO INFORM IT OF THE ADOPTION OF THE SAID REGULATION AND WHICH IN PARTICULAR STATED IN A PARAGRAPH MARKED ' ' N.B . ' ' THAT ' ' THOSE APPLICATIONS - WHICH WOULD HAVE BEEN ACCEPTED ON 20 DECEMBER 1980 OR LATER - ARE NO LONGER APPLICABLE AND MUST BE REFUSED AND THE SECURITIES LODGED MUST BE RELEASED ' ' .

6 THE APPLICANT BROUGHT AN APPLICATION FOR A DECLARATION THAT THOSE MEASURES WERE VOID UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY .

7 THE COMMISSION RAISED AN OBJECTION OF INADMISSIBILITY UNDER ARTICLE 91 ( 1 ) OF THE RULES OF PROCEDURE . IN THAT REGARD , AFTER EMPHASIZING THAT THE DECISION CONCERNING THE APPLICATIONS SUBMITTED BY THE APPLICANT WAS IN FACT TAKEN BY THE FEDERAL OFFICE , IT SUBMITS THAT THE APPLICATION IS INADMISSIBLE ON THE GROUND THAT NEITHER THE TELEX MESSAGE OF 12 DECEMBER 1980 NOR REGULATION NO 3318/80 CONSTITUTES A DECISION WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY .

8 THE APPLICANT , ON THE OTHER HAND , CONTENDS THAT THOSE MEASURES ARE OF DIRECT AND INDIVIDUAL CONCERN TO IT .

9 IN THOSE CIRCUMSTANCES , THE COURT DECIDED TO DETERMINE THE ADMISSIBILITY OF THIS APPLICATION FOR A DECLARATION OF NULLITY WITHOUT GOING INTO THE SUBSTANCE OF THE CASE .

10 IT IS THEREFORE APPROPRIATE TO EXAMINE FIRST THE LEGAL NATURE OF REGULATION NO 3318/80 AND THEN THAT OF THE COMMISSION ' S TELEX MESSAGE OF 19 DECEMBER 1980 .

THE LEGAL NATURE OF REGULATION NO 3318/80

11 THE COMMISSION CONSIDERS FIRST THAT IT FOLLOWS FROM REGULATION NO 2378/80 THAT THE REGULATION IN QUESTION COVERS NOT ONLY APPLICATIONS LODGED DURING THE PERIOD OF SUSPENSION BUT ALSO THOSE LODGED EARLIER ON WHICH THERE HAD NOT YET BEEN A DECISION . NEXT IT SUBMITS THAT THE NUMBER OF TRADERS COVERED THEREBY WAS NOT KNOWN TO IT AND , FINALLY , THAT THE CONTESTED REGULATION CLEARLY HAS THE CHARACTER OF A RULE OF LAW AND CANNOT BE CONSIDERED AS AN INDIVIDUAL DECISION , ON THE GROUND THAT ADVANCE FIXING CONSTITUTES A RIGHT FROM WHICH THERE MAY BE NO DEROGATION EXCEPT BY MEANS OF LEGISLATIVE MEASURES OF GENERAL APPLICATION AND THAT IT IS DIFFICULT TO REGARD REGULATION NO 3318/80 AS HAVING THE CHARACTER OF A DECISION WHEN IT APPLIES TO APPLICATIONS LODGED EARLIER .

12 THE APPLICANT , ON THE OTHER HAND , ALLEGES THAT REGULATION NO 3318/80 , TO THE EXTENT TO WHICH IT APPLIES TO APPLICATIONS LODGED PRIOR TO ITS ENTRY INTO FORCE , HAS THE CHARACTER OF A DECISION . INDEED , IN ITS VIEW , THE NUMBER OF APPLICATIONS FOR ADVANCE FIXING CERTIFICATES WHICH WERE RECEIVED OVER THE LAST FIVE WORKING DAYS , WITHIN THE MEANING OF ARTICLE 2 ( 1 ) OF REGULATION NO 2378/80 , AND WHICH MIGHT BE CONCERNED BY REGULATION NO 3318/80 WAS ALREADY KNOWN TO THE COMMISSION AT THE TIME AT WHICH THE LATTER REGULATION WAS ADOPTED . TO THAT EXTENT THE CONTESTED REGULATION CONSTITUTES A CONGLOMERATION OF INDIVIDUAL DECISIONS TAKEN BY THE COMMISSION IN THE FORM OF A REGULATION , AND NOT A MEASURE OF GENERAL APPLICATION WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 189 OF THE EEC TREATY .

13 THE INTERVENER PUTS FORWARD SIMILAR ARGUMENTS AND ADDS THAT IT FOLLOWS FROM THE ORIGIN OF THE REGULATIONS THAT THE COMMISSION IS NOT EMPOWERED TO REFUSE THE APPLICATIONS LODGED EARLIER AND THAT IF REGULATION NO 3318/80 IN FACT COVERED ONLY APPLICATIONS LODGED DURING THE PERIOD OF SUSPENSION , NEITHER THE APPLICANT NOR THE INTERVENER WOULD BE ENTITLED TO CHALLENGE IT , FOR IT WOULD NOT BE OF INDIVIDUAL CONCERN TO THEM .

14 IN VIEW OF THOSE DIFFERENT ARGUMENTS IT IS NECESSARY TO DETERMINE WHETHER , HAVING REGARD TO THE FACTS OF THE CASE , THE CONTESTED REGULATION IS OF GENERAL APPLICATION OR ONLY APPEARS TO BE SO , BEING IN REALITY ONLY A DECISION WHICH IS OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANT .

15 THE SOLE RECITAL IN THE PREAMBLE TO REGULATION NO 3318/80 JUSTIFIES THE MEASURES SUSPENDING THE ADVANCE FIXING OF EXPORT REFUNDS FOR BEEF MEAT PRODUCTS BY THE FACT THAT AS THAT MARKET WAS AT THAT TIME ' ' CHARACTERIZED BY AN UNCERTAINTY AS REGARDS THE PRICE ' ' , THE ' ' CURRENT REFUNDS APPLICABLE TO THESE PRODUCTS COULD LEAD TO SPECULATIVE ADVANCE FIXING OF THE REFUNDS ' ' .

16 TWO CONCLUSIONS MAY BE INFERRED FROM THE REFERENCES IN THE PREAMBLE TO THAT REGULATION , FROM THE STATEMENT OF THE REASONS ON WHICH IT IS BASED AND FROM THE CLEAR WORDING OF ARTICLE 1 THEREOF . ON THE ONE HAND THE REGULATION IS ADOPTED IN THE FRAMEWORK OF GENERAL RULES , AND IN PARTICULAR OF ARTICLE 5 OF REGULATION NO 885/68 OF THE COUNCIL , AS SUPPLEMENTED BY REGULATION NO 1504/76 , WHICH AUTHORIZES THE COMMISSION TO SUSPEND THE ADVANCE FIXING OF EXPORT REFUNDS , FOR THE PERIODS STRICTLY NECESSARY , WHERE EXAMINATION OF THE MARKET SITUATION SHOWS THAT THERE ARE DIFFICULTIES DUE TO THE APPLICATION OF THE PROVISIONS CONCERNING THE ADVANCE FIXING OF THE REFUND . ON THE OTHER HAND , IT CLEARLY COVERS NOT ONLY ALL THE APPLICATIONS FOR ADVANCE FIXING WHICH WERE TO BE LODGED AS FROM 20 DECEMBER 1980 , BUT ALSO ALL THOSE STILL PENDING ON THAT DATE , SINCE OTHERWISE THE TRUE OBJECT OF THE PROVISION IN QUESTION WOULD NOT BE ACHIEVED .

17 AS THE BASIC REGULATION NO 1504/76 CONSTITUTES A MEASURE OF GENERAL APPLICATION AND CONFERS A RIGHT TO ADVANCE FIXING OF REFUNDS IN THE SECTOR IN QUESTION , IT APPEARS THAT SUCH A RIGHT MAY BE TOTALLY SUSPENDED ONLY BY MEANS OF ANOTHER LEGISLATIVE MEASURE . SINCE ARTICLE 1 OF REGULATION NO 3318/80 CONCERNS BOTH EARLIER APPLICATIONS AND THOSE LODGED DURING THE PERIOD OF SUSPENSION , THE NATURE OF THE CONTESTED MEASURE AS A REGULATION IS NOT CALLED IN QUESTION MERELY BY THE FACT THAT IT MAY BE POSSIBLE TO DETERMINE THE NUMBER OR EVEN THE IDENTITY OF CERTAIN TRADERS CONCERNED , ESPECIALLY WHERE SUCH A POSSIBILITY BY DEFINITION DID NOT EXIST FOR OTHER TRADERS ALSO COVERED BY REGULATION NO 3318/80 .

18 A SINGLE PROVISION CANNOT AT ONE AND THE SAME TIME HAVE THE CHARACTER OF A MEASURE OF GENERAL APPLICATION AND OF AN INDIVIDUAL MEASURE .

19 CONSEQUENTLY IT MUST BE DEDUCED FROM THE PURPOSE OF THE CONTESTED MEASURE , FROM THE FRAMEWORK OF THE REGULATIONS OF WHICH IT FORMS PART , AND ALSO FROM ITS VERY NATURE THAT IT IS INDEED A REGULATION WHICH IS OF GENERAL APPLICATION ; IT FOLLOWS THAT THE OBJECTION RAISED BY THE COMMISSION MUST BE ACCEPTED IN SO FAR AS IT CONCERNS THE APPLICATION THAT REGULATION NO 3318/80 SHOULD BE DECLARED VOID .

THE LEGAL NATURE OF THE TELEX MESSAGE

20 THE APPLICANT SUBMITS THAT THE TELEX MESSAGE OF 19 DECEMBER 1980 CONSTITUTES A DECISION BECAUSE IT IS CAPABLE OF PRODUCING LEGAL EFFECTS AND IS OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANT .

21 THE COMMISSION CONTENDS THAT THE CONTENT OF THAT MESSAGE FROM THE DIRECTORATE-GENERAL FOR AGRICULTURE IS ONLY INFORMATIVE SINCE , ON THE ONE HAND , THE COMMISSION HAS NO POWER TO ADDRESS SPECIAL INSTRUCTIONS TO THE MEMBER STATES IN THE SPHERE IN QUESTION AND , ON THE OTHER , IT IS CUSTOMARY IN CIRCUMSTANCES SUCH AS THOSE IN THE PRESENT CASE - THE ENTRY INTO FORCE OF A REGULATION ON THE SAME DAY AS ITS PUBLICATION IN THE OFFICIAL JOURNAL - FOR THE COMMISSION TO EXPLAIN THE LEGAL POSITION TO THE AUTHORITIES IN THE MEMBER STATES BY MEANS OF A TELEX MESSAGE .

22 IT IS COMMON GROUND THAT THE APPLICANT REFERS ONLY TO THE PART OF THE MESSAGE MARKED ' ' N.B . ' ' .

23 THAT TEXT CLEARLY SEEKS ONLY TO GIVE A SUMMARY OF THE LEGAL EFFECTS ARISING DIRECTLY OUT OF THE APPLICATION OF REGULATION NO 3318/80 .

24 SINCE THAT REGULATION WAS NOT OF INDIVIDUAL CONCERN TO THE APPLICANT , THE COMMISSION ' S TELEX MESSAGE OF 19 DECEMBER 1980 WHICH SETS OUT THE RESULTS FOR THE NATIONAL INTERVENTION AGENCIES ITSELF DOES NOT RELATE TO THE APPLICANT INDIVIDUALLY EITHER .

25 AS A RESULT , IT MUST BE STATED THAT THE OBJECTION RAISED BY THE COMMISSION MUST ALSO BE ACCEPTED IN SO FAR AS IT RELATES TO THE APPLICATION FOR A DECLARATION THAT THE TELEX MESSAGE OF 19 DECEMBER 1980 IS VOID .

COSTS

26 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS ; SINCE THE APPLICANT HAS FAILED IN ITS ACTION , IT IS NECESSARY TO ORDER IT TO PAY THE COSTS EXCEPT THOSE ARISING OUT OF THE INTERVENTION , AND TO LEAVE THE INTERVENER TO PAY ITS OWN COSTS AND THOSE INCURRED BY THE COMMISSION AS A RESULT OF ITS INTERVENTION .

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER ),

HEREBY RULES :

1 . THE APPLICATION IS DISMISSED AS INADMISSIBLE ;

2 . THE APPLICANT IS ORDERED TO PAY THE COSTS , EXCEPT THOSE ARISING FROM THE INTERVENTION ;

3 . THE INTERVENER IS ORDERED TO BEAR ITS OWN COSTS AND THOSE INCURRED BY THE COMMISSION AS A RESULT OF THE INTERVENTION .