61978J0162

1 . ACTIONS FOR ANNULMENT - NATURAL OR LEGAL PERSONS - ACTS OF DIRECT AND INDIVIDUAL CONCERN TO THEM - DECISION ADOPTED IN THE FORM OF A REGULATION - PURPOSE OF INSTITUTING PROCEEDINGS

( EEC TREATY , SECOND PARA . OF ART . 173 )

2 . ACTS OF THE INSTITUTIONS - LEGAL NATURE - REGULATION OR DECISION - DISTINCTION - CRITERIA

( EEC TREATY , ART . 189 )

3 . AGRICULTURE - MONETARY COMPENSATORY AMOUNTS - REFUNDS ON EXPORTS OF SUGAR AWARDED IN NATIONAL CURRENCY - APPLICATION OF THE MONETARY COEFFICIENT - PURPOSE

( COMMISSION REGULATIONS ( EEC ) NOS 1182/78 , 1392/78 AND 1837/78 )

1 . THE SPECIFIC PURPOSE OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY IS TO PREVENT THE COMMUNITY INSTITUTIONS FROM BEING ABLE TO BAR PROCEEDINGS INSTITUTED BY AN INDIVIDUAL AGAINST A DECISION OF DIRECT AND INDIVIDUAL CONCERN TO HIM BY SIMPLY CHOOSING THE FORM OF A REGULATION .

2 . UNDER THE SECOND PARAGRAPH OF ARTICLE 189 THE TEST FOR DISTINGUISHING BETWEEN A REGULATION AND A DECISION IS TO ASCERTAIN WHETHER THE MEASURE IN QUESTION HAS GENERAL APPLICATION OR NOT .

3 . COMMISSION REGULATIONS ( EEC ) NOS 1182/78 , 1392/78 AND 1837/78 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF THE MONETARY COEFFICIENT TO REFUNDS , THE AMOUNT OF WHICH HAS BEEN SET IN A NATIONAL CURRENCY IN THE STATEMENT OF AWARD FOLLOWING AN INVITATION TO TENDER FOR THE PURPOSE OF EXPORTATION , WITH PARTICULAR REFERENCE TO SUGAR , DO NOT IN FACT REDUCE THE REFUNDS AWARDED BUT , BY APPLYING THE COEFFICIENT TO THE REFUNDS , MERELY ADJUST THE MONETARY COMPENSATORY AMOUNT BY REDUCING IT IN THE CASE OF REVALUED CURRENCIES AND BY INCREASING IT IN THE CASE OF DEVALUED CURRENCIES . THE APPLICATION OF THE COEFFICIENT IS ONLY A TECHNICAL WAY OF ADJUSTING , IN TRADE WITH NON-MEMBER COUNTRIES , THE BASIC MONETARY COMPENSATORY AMOUNT WHICH IS FIXED AT A UNIFORM LEVEL CALCULATED ON THE BASIS OF COMMUNITY PRICES . THE BASIC MONETARY COMPENSATORY AMOUNT HAS THEREFORE TO BE REDUCED BY AN AMOUNT CALCULATED BY APPLYING TO THE REFUND THE COEFFICIENT DETERMINED BY THE REVALUATION OR DEVALUATION , SO THAT THE REDUCTION OR THE REFUND ITSELF IS NOT AFFECTED .

IN CASE 162/78

1 . HANS-OTTO WAGNER GMBH AGRARHANDEL KG , REPRESENTED BY HANS-OTTO WAGNER , BAD HOMBURG ,

2 . SCHLUTER & MAACK GMBH & CO . KG , REPRESENTED BY OSKAR M . ROEHR , CONSTANTIN SCHLUTER AND OSKAR W . R . ROEHR , OF HAMBURG , AND BY MODEST AND PARTNERS , ADVOCATES AT THE HAMBURG BAR , ACTING AS AGENTS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF J . JANSEN-HOUSSE , 23 RUE ALDRINGEN ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , PETER GILSDORF , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , M . CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY TO DECLARE PARTIALLY VOID COMMISSION REGULATION ( EEC ) NO 1837/78 OF 31 JULY 1978 DEFINING THE SCOPE OF ARTICLE 4 ( 5 ) OF REGULATION ( EEC ) NO 1380/75 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL L 210 , P . 51 ),

1 BY AN APPLICATION OF 26 JULY 1978 RECEIVED AT THE COURT REGISTRY ON 28 JULY 1978 THE APPLICANTS REQUESTED THE COURT TO DECLARE INVALID COMMISSION REGULATION ( EEC ) NO 1182/78 SUPPLEMENTING REGULATIONS ( EEC ) NO 1634/77 AND ( EEC ) NO 1790/77 ON STANDING INVITATIONS TO TENDER TO DETERMINE EXPORT REFUNDS ON SUGAR ( OFFICIAL JOURNAL 1978 L 145 , P . 46 ) AND COMMISSION REGULATION ( EEC ) NO 1392/78 OF 23 JUNE 1978 AMENDING REGULATION ( EEC ) NO 1380/75 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL 1978 L 167 , P . 53 ) TO THE EXTENT TO WHICH THOSE REGULATIONS PROVIDE THAT THE COEFFICIENT REFERRED TO IN ARTICLE 4 ( 3 ) OF REGULATION NO 1380/75 , WHERE IT AMOUNTS TO LESS THAN 1 , SHALL APPLY TO REFUNDS , THE AMOUNT OF WHICH HAS BEEN SET IN A NATIONAL CURRENCY IN THE STATEMENT OF AWARD FOLLOWING AN INVITATION TO TENDER , AND IN THE ALTERNATIVE , TO THE EXTENT TO WHICH THOSE REGULATIONS PROVIDE THAT THAT COEFFICIENT , WHERE IT AMOUNTS TO LESS THAN 1 , SHALL APPLY TO REFUNDS , THE AMOUNT OF WHICH HAS BEEN SET IN A NATIONAL CURRENCY IN THE STATEMENT OF AWARD FOLLOWING AN INVITATION TO TENDER , IN TRANSACTIONS FOR WHICH THE CUSTOMS FORMALITIES WERE COMPLETED BEFORE 1 JUNE 1978 .

2 FOLLOWING THE ADOPTION OF COMMISSION REGULATION ( EEC ) NO 1837/78 OF 31 JULY 1978 DEFINING THE SCOPE OF ARTICLE 4 ( 5 ) OF REGULATION ( EEC ) NO 1380/75 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL 1978 L 210 , P . 51 ) THE APPLICANTS AMENDED THEIR CONCLUSIONS IN THE MANNER DESCRIBED BELOW .

3 THE APPLICANTS ARE SUGAR EXPORTERS WHO HAD BEEN GRANTED BEFORE 1 JUNE 1978 , FOLLOWING A PARTIAL INVITATION TO TENDER , LICENCES TO EXPORT SUGAR IN WHICH THE REFUNDS HAD BEEN SET IN A NATIONAL CURRENCY AND WHO CONSIDER THAT THEY HAVE SUFFERED DAMAGE AS A RESULT OF THE PROVISIONS OF THE DISPUTED REGULATIONS .

4 IT SHOULD BE RECALLED THAT THE FINANZGERICHT ( FINANCE COURT ) HAMBURG HAD , BY AN ORDER OF 19 AUGUST 1977 PURSUANT TO ARTICLE 177 OF THE EEC TREATY , REFERRED TO THE COURT , INTER ALIA , A QUESTION ON THE INTERPRETATION OF ARTICLE 4 ( 3 ) OF REGULATION ( EEC ) NO 1380/75 OF THE COMMISSION OF 29 MAY 1975 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL L 139 , P . 37 ), IN CONJUNCTION WITH REGULATION ( EEC ) NO 2101/75 OF THE COMMISSION OF 11 AUGUST 1975 ON A STANDING INVITATION TO TENDER IN ORDER TO DETERMINE A LEVY AND/OR REFUND ON EXPORTS OF WHITE SUGAR ( OFFICIAL JOURNAL L 214 , P . 5 ). THE QUESTION WAS WORDED AS FOLLOWS :

' ' IS ARTICLE 4 ( 3 ) OF REGULATION ( EEC ) NO 1380/75 OF THE COMMISSION READ IN CONJUNCTION WITH REGULATION ( EEC ) NO 2101/75 OF THE COMMISSION TO BE INTERPRETED AS MEANING THAT THE EXPORT REFUND , WHICH IN THE SUGAR SECTOR IS DETERMINED SEPARATELY FOR EACH EXPORTER IN NATIONAL CURRENCY ON THE BASIS OF AN INVITATION TO TENDER , IS TO BE MULTIPLIED BY THE MONETARY COEFFICIENT FIXED BY THE COMMISSION WHICH IS DERIVED FROM THE PERCENTAGE USED TO CALCULATE THE MONETARY COMPENSATION?

' '

5 THE MAIN ACTION IN WHICH THIS QUESTION AROSE WAS CONCERNED WITH THE CALCULATION OF EXPORT REFUNDS GRANTED , FOLLOWING AN INVITATION TO TENDER , TO THE GERMAN FIRM WAGNER , ONE OF THE APPLICANTS IN THESE PROCEEDINGS , IN CONNEXION WITH THE EXPORT BY IT TO BULGARIA OF 4 000 000 KILOGRAMS OF UNDENATURED WHITE SUGAR . THE CUSTOMS OFFICE WHICH WAS RESPONSIBLE HAD GRANTED THE PLAINTIFF FIRM MONETARY COMPENSATION AMOUNTING TO DM 10.90 PER 100 KG . IT ALSO GRANTED EXPORT REFUNDS BUT REDUCED THE AMOUNTS RESULTING FROM THE RATES OF REFUND INDICATED IN THE EXPORT LICENCES BY APPLYING THE COEFFICIENT OF 0.9 TO THOSE AMOUNTS .

6 AT THAT TIME ARTICLE 4 OF REGULATION NO 1380/75 READ AS FOLLOWS :

' ' 1 . A MONETARY COMPENSATORY AMOUNT SHALL BE FIXED FOR EACH PRODUCT AND FOR EACH MEMBER STATE IN RESPECT OF WHICH THE CONDITIONS FOR THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS ARE FULFILLED .

THE MONETARY COMPENSATORY AMOUNT SHALL BE CALCULATED ON THE BASIS OF THE COMMON PRICE , REDUCED WHERE APPROPRIATE IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF ACCESSION .

2.THE AMOUNT FIXED IN ACCORDANCE WITH THE PRECEDING PARAGRAPH SHALL APPLY IN TRADE BETWEEN THE MEMBER STATES AND IN TRADE WITH THIRD COUNTRIES .

3.HOWEVER ,

( A ) IN TRADE WITH A NEW MEMBER STATE THE ACCESSION COMPENSATORY AMOUNTS AND THE FIXED COMPONENTS , AND

( B)IN TRADE WITH THIRD COUNTRIES THE IMPORT CHARGES AND THE EXPORT REFUNDS AND LEVIES ,

FIXED IN UNITS OF ACCOUNT , APPLICABLE TO THE PRODUCTS REFERRED TO IN PARAGRAPH 1 , SHALL BE MULTIPLIED BY A COEFFICIENT . THIS COEFFICIENT SHALL BE DERIVED FROM THE PERCENTAGE USED TO CALCULATE THE MONETARY COMPENSATORY AMOUNT AND SHALL BE FIXED BY THE COMMISSION AT THE SAME TIME AS THAT AMOUNT .

. . .

4.WHERE THE LEVY OR REFUND IS TO BE INCREASED OR REDUCED , AS THE CASE MAY BE , BY ACCESSION AND MONETARY COMPENSATORY AMOUNTS AND MULTIPLIED BY A COEFFICIENT , THE CALCULATION SHALL BE MADE AS FOLLOWS :

( A)THE LEVY OR REFUND SHALL BE REDUCED OR INCREASED , AS THE CASE MAY BE , BY THE ACCESSION COMPENSATORY AMOUNT ;

( B)THE RESULTING AMOUNT SHALL BE MULTIPLIED BY THE COEFFICIENT ; AND

( C)THE AMOUNT OBTAINED AFTER MULTIPLICATION SHALL , AFTER CONVERSION INTO NATIONAL CURRENCY , BE REDUCED OR INCREASED , AS THE CASE MAY BE , BY THE MONETARY COMPENSATORY AMOUNT . ' '

7 THE COURT FOR THE REASONS GIVEN IN ITS JUDGMENT OF 24 MAY 1978 IN CASE 108/77 ( HANS-OTTO WAGNER GMBH AGRARHANDEL KG V HAUPTZOLLAMT HAMBURG-JONAS ( 1978 ) ECR 1187 ) ANSWERED THE QUESTION AS FOLLOWS :

' ' ARTICLE 4 ( 3 ) OF REGULATION NO 1380/75 , READ IN CONJUNCTION WITH REGULATION NO 210/75 , MUST BE INTERPRETED AS MEANING THAT THE EXPORT REFUND IN THE SUGAR SECTOR , FIXED IN NATIONAL CURRENCY FOR EACH EXPORTER INDIVIDUALLY ON THE BASIS OF A TENDER , IS NOT TO BE MULTIPLIED BY A MONETARY COEFFICIENT , FIXED BY THE COMMISSION , DERIVED FROM THE PERCENTAGE USED TO CALCULATE THE MONETARY COMPENSATION ' ' .

8 SUBSEQUENT TO THE COURT ' S JUDGMENT THE COMMISSION ADOPTED THE ABOVE-MENTIONED REGULATION NO 1182/78 WHICH PROVIDES THAT ' ' THE COEFFICIENT REFERRED TO IN ARTICLE 4 ( 3 ) OF REGULATION ( EEC ) NO 1380/75 SHALL APPLY EQUALLY TO REFUNDS AWARDED IN NATIONAL CURRENCY FOR THE PURPOSES OF THIS INVITATION TO TENDER ' ' . REGULATION NO 1182/78 WHICH ENTERED INTO FORCE ON 1 JUNE 1978 APPLIES TO REFUNDS AWARDED UNDER THE REGULATIONS WHICH IT SUPPLEMENTS WITH THE EXCEPTION OF THOSE FOR WHICH OFFERS WERE ACCEPTED AFTER 24 MAY 1978 AND BEFORE 1 JUNE 1978 . THE COMMISSION THEN ADOPTED THE ABOVE-MENTIONED REGULATION NO 1392/78 WHICH PROVIDED FOR THE ADDITION TO ARTICLE 4 OF REGULATION NO 1380/75 OF A PARAGRAPH ( 5 ) WHICH STATES THAT : ' ' THE COEFFICIENT REFERRED TO IN PARAGRAPH ( 3 ) SHALL ALSO BE APPLIED TO REFUNDS AND LEVIES , THE AMOUNT OF WHICH HAS BEEN SET IN A NATIONAL CURRENCY IN THE STATEMENT OF AWARD FOLLOWING AN INVITATION TO TENDER ' ' . REGULATION NO 1392/78 APPLIES TO OPERATIONS FOR WHICH THE CUSTOMS FORMALITIES HAVE BEEN COMPLETED ON OR AFTER THE DATE OF ITS ENTRY INTO FORCE ( 24 JUNE 1978 ), SUBJECT TO THE EXISTING PROVISIONS IN THE SUGAR SECTOR AND TO THE PROVISIONS TO BE ADOPTED BEFORE 1 AUGUST 1978 .

9 SINCE THE APPLICANTS ARE OF THE OPINION THAT REGULATIONS NOS 1182/78 AND 1392/78 IN FACT APPLIED THE MONETARY COEFFICIENT RETROACTIVELY TO THE REFUNDS WHICH HAD BEEN DEFINITIVELY AWARDED TO THEM BEFORE THOSE REGULATIONS WERE ADOPTED THEY HAVE INSTITUTED THESE PROCEEDINGS FOR ANNULMENT UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY .

10 THE COMMISSION ADOPTED ON 31 JULY 1978 , THAT IS TO SAY THREE DAYS AFTER THESE PROCEEDINGS WERE INSTITUTED , THE ABOVE-MENTIONED REGULATION NO 1837/78 , ARTICLE 1 WHEREOF ( AS AMENDED BY COMMISSION REGULATION ( EEC ) NO 1907/78 OF 7 AUGUST 1978 , OFFICIAL JOURNAL 1978 L 217 , P . 13 ) PROVIDES THAT ARTICLE 4 ( 5 ) OF REGULATION NO 1308/75 ' ' SHALL APPLY TO OPERATIONS FOR WHICH COMPLETION OF THE CUSTOMS FORMALITIES OCCURS :

( A ) FOR OPERATIONS IN THE SUGAR SECTOR , ON OR AFTER 1 JUNE 1978 ;

( B)FOR OPERATIONS IN OTHER SECTORS , ON OR AFTER 24 JUNE 1978 ;

( C)BEFORE THESE DATES IN CASES WHERE ITS APPLICATION WILL BE OF ADVANTAGE TO THE PERSON CONCERNED ' ' .

REGULATION NO 1837/78 , WHICH SUPPLEMENTS REGULATION NO 1392/78 AND REPEALS REGULATION NO 1182/78 , ENTERED INTO FORCE ON 1 AUGUST 1978 .

11 THE APPLICANTS STATED IN A LETTER OF 8 AUGUST 1978 THAT IT WAS NO LONGER NECESSARY FOR THE COURT TO GIVE A DECISION ON THE VARIOUS PRINCIPAL SUBMISSIONS IN THEIR APPLICATION OF 26 JULY 1978 , WHICH THEY AMENDED HAVING REGARD TO THE SITUATION CREATED BY THE ADOPTION OF REGULATION NO 1837/78 . IN THEIR NEW CONCLUSIONS THEY CLAIM THAT THE COURT SHOULD :

( 1 ) PRINCIPALLY DECLARE ARTICLE 1 OF REGULATION NO 1837/78 INVALID TO THE EXTENT TO WHICH IT PROVIDES THAT ARTICLE 4 ( 5 ) OF REGULATION NO 1380/75 RELATING TO THE COEFFICIENT FIXED IN ARTICLE 4 ( 3 ) OF REGULATION NO 1380/75 , WHERE IT AMOUNTS TO LESS THAN 1 , SHALL APPLY TO REFUNDS , THE AMOUNT OF WHICH HAS BEEN SET IN A NATIONAL CURRENCY IN THE STATEMENT OF AWARD FOLLOWING AN INVITATION TO TENDER BEFORE 1 AUGUST 1978 ;

( 2)IN THE ALTERNATIVE , DECLARE THE SAID ARTICLE 1 INVALID TO THE EXTENT TO WHICH IT PROVIDES THAT ARTICLE 4 ( 5 ) OF REGULATION NO 1380/75 RELATING TO THE COEFFICIENT , WHERE IT AMOUNTS TO LESS THAN 1 , SHALL APPLY TO REFUNDS , THE AMOUNT OF WHICH HAS BEEN SET IN A NATIONAL CURRENCY IN THE STATEMENT OF AWARD FOLLOWING AN INVITATION TO TENDER BEFORE 24 JUNE 1978 ;

( 3)IN THE FURTHER ALTERNATIVE , DECLARE THE SAID ARTICLE 1 INVALID TO THE EXTENT TO WHICH IT PROVIDES THAT THE COEFFICIENT SHALL APPLY , AS FAR AS THE SUGAR SECTOR IS CONCERNED , TO REFUNDS , THE AMOUNT OF WHICH HAS BEEN SET IN A NATIONAL CURRENCY IN THE STATEMENT OF AWARD FOLLOWING AN INVITATION TO TENDER BEFORE 1 JUNE 1978 ;

( 4)IN THE YET FURTHER ALTERNATIVE , DECLARE THE SAID ARTICLE 1 INVALID TO THE EXTENT TO WHICH IT PROVIDES THAT THE COEFFICIENT SHALL APPLY , AS FAR AS THE SUGAR SECTOR IS CONCERNED , TO REFUNDS , THE AMOUNT OF WHICH HAS BEEN SET IN A NATIONAL CURRENCY IN THE STATEMENT OF AWARD FOLLOWING AN INVITATION TO TENDER BEFORE 1 JUNE 1978 , WHERE THE RELEVANT CUSTOMS FORMALITIES WERE COMPLETED BEFORE 24 JUNE 1978 .

ADMISSIBILITY

12 THE APPLICANTS CONSIDER THAT THE CONDITIONS LAID DOWN BY THE SECOND PARAGRAPH OF ARTICLE 173 ARE PRESENT . THEY CLAIM THAT THE DISPUTED REGULATION IS OF DIRECT AND INDIVIDUAL CONCERN TO THEM AND THAT THE ISSUE IN THIS CASE IS THAT REFUNDS WHICH THEY HAD BEEN DEFINITIVELY AWARDED WERE SUBSEQUENTLY REDUCED AND NOT MERELY THAT MONETARY COMPENSATORY AMOUNTS WERE ALTERED . MOREOVER , THE FACT THAT REGULATION NO 1837/78 , LIKE REGULATIONS NOS 1182/78 AND 1392/78 , AS FAR AS THE FUTURE IS CONCERNED , CONSTITUTE GENERAL MEASURES AND THAT IN CONSEQUENCE THE COMMISSION CHOSE THE LEGAL FORM OF A REGULATION DOES NOT PREVENT THOSE REGULATIONS , TO THE EXTENT TO WHICH THEY PROVIDE FOR THE RETROACTIVE APPLICATION OF THE MONETARY COEFFICIENT TO REFUNDS WHICH HAVE ALREADY BEEN AWARDED , FROM BEING IN THE NATURE OF DECISIONS ADDRESSED TO SPECIFIED PERSONS WHICH MAY BE CHALLENGED BY THOSE PERSONS AS PROVIDED FOR IN THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY . THE THREE REGULATIONS CONTAIN PROVISIONS WHICH HAVE GENUINE RETROACTIVE EFFECT . THEY ARE INTENDED TO GOVERN A SPECIFIC SITUATION IN THAT THEY APPLY TO CERTAIN OPERATIONS WHICH HAD ALREADY BEEN CONCLUDED WHEN THE REGULATIONS ENTERED INTO FORCE .

13 THE APPLICANTS TAKE THE VIEW THAT , TO THE EXTENT TO WHICH THE REGULATIONS DEAL WITH REFUNDS AWARDED BEFORE 1 JUNE 1978 , THEY ARE OF CONCERN TO A SMALL NUMBER OF EXPORTERS WHO WERE DEFINITIVELY ASCERTAINED ON THE DATE MENTIONED . SINCE THOSE EXPORTERS WERE AWARDED REFUNDS IN A NATIONAL CURRENCY BEFORE 1 JUNE 1978 THEY ARE DIFFERENTIATED FROM ALL OTHER ADDRESSEES OF THE GENERAL PROVISION AND MAY CONSEQUENTLY BE DISTINGUISHED INDIVIDUALLY . THE APPLICANTS BELONG TO THAT CATEGORY OF EXPORTERS AND THE FACTORS ESTABLISHING THAT THEY ARE INDIVIDUALLY CONCERNED ARE THEREFORE PRESENT .

14 ALTHOUGH THE COMMISSION HAS NOT OPPOSED THE AMENDMENT TO THE SUBJECT-MATTER OF THE APPLICATION IT HAS DISPUTED ITS ADMISSIBILITY . IT TAKES THE VIEW THAT ALTHOUGH THE REGULATION WHICH IS CHALLENGED IS OF DIRECT CONCERN TO THE APPLICANTS IT IS NOT OF INDIVIDUAL CONCERN TO THEM . REGULATION NO 1837/78 IN CONJUNCTION WITH REGULATION NO 1392/78 IS DRAFTED IN AN ABSTRACT AND GENERAL WAY AND APPLIES TO AN INDEFINITE NUMBER OF TRADERS , NOT TO A WELL-DEFINED GROUP THEREOF . IT CONTAINS AN AMENDMENT TO THE PROVISIONS RELATING TO THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS . FROM THE VERY BEGINNING THAT AMENDMENT APPLIED IN PRINCIPLE TO ALL OPERATIONS FOR WHICH THE CUSTOMS FORMALITIES WERE COMPLETED ON OR AFTER THE DATE OF ENTRY INTO FORCE OF REGULATION NO 1392/78 , THAT IS TO SAY 24 JUNE 1978 . REGULATION NO 1837/78 DID NOT AMEND THAT PRINCIPLE IN ANY WAY WHICH COULD BE RELEVANT TO THE CASE IN POINT . IT STATED THAT THE RELEVANT DATE FOR THE COMPLETION OF CUSTOMS FORMALITIES FOR OPERATIONS IN THE SUGAR SECTOR WAS 1 JUNE 1978 , SINCE IN THE CASE OF THAT SECTOR THE NEW SYSTEM HAD ALREADY BEEN INTRODUCED ON THAT DATE BY REGULATION NO 1182/78 .

15 IN THE VIEW OF THE COMMISSION THE REASON FOR THE APPLICANTS ' CONVICTION THAT THEY ARE INDIVIDUALLY CONCERNED LIES IN THE FACT THAT THEY BELONG TO A GROUP OF EXPORTERS WHO BECAME SUCCESSFUL TENDERERS BEFORE A SPECIFIED DATE . HOWEVER , THAT GROUP OF EXPORTERS FORMS ONLY A PART OF THE UNSPECIFIED NUMBER OF TRADERS COVERED BY REGULATION NO 1380/75 , AS AMENDED BY REGULATION NO 1392/78 . THE FACT THAT THE APPLICANTS BELONG , WITHIN THE UNDEFINED GROUP OF PERSONS AFFECTED , TO A SUB-GROUP DISTINGUISHED BY A PARTICULAR FACTUAL SITUATION DOES NOT MEAN THAT THEY ARE TO THAT EXTENT DISTINGUISHED INDIVIDUALLY BY THE REGULATION ITSELF . THE DISPUTED REGULATION DOES NOT DRAW ANY DISTINCTION DEPENDING ON WHETHER THE TRADERS CONCERNED PARTICIPATE IN INVITATIONS TO TENDER OR HAVE BEEN STATED TO BE SUCCESSFUL TENDERERS OR HAVE ALREADY MADE ARRANGEMENTS FOR THE PURPOSE OF THEIR COMMERCIAL OPERATIONS ; IT APPLIES THE SAME TREATMENT TO ALL THOSE WHO HAVE ENGAGED IN OPERATIONS FOR WHICH THE FORMALITIES HAVE NOT YET BEEN COMPLETED . IF THE APPLICANTS ' ARGUMENT WERE CORRECT THE RESULT WOULD BE THAT IT WOULD BE POSSIBLE , WITH REFERENCE TO SUITABLE FACTS , TO FORM A NUMBER OF SUB-GROUPS DISTINGUISHED BY INDIVIDUAL FEATURES WITHIN THE UNSPECIFIED NUMBER OF PERSONS AFFECTED . SUCH A VIEW WOULD MAKE THE CONDITIONS LAID DOWN BY THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY , WHICH REQUIRES THAT THE DECISION WHICH A PERSON CHALLENGES MUST BE OF INDIVIDUAL CONCERN TO HIM , TO A GREAT EXTENT INEFFECTIVE .

16 ARTICLE 173 OF THE EEC TREATY ENTITLES A PRIVATE INDIVIDUAL TO CHALLENGE A DECISION ADDRESSED TO HIM OR A DECISION WHICH , ALTHOUGH ADOPTED IN THE FORM OF A REGULATION OR A DECISION ADDRESSED TO ANOTHER PERSON , IS OF DIRECT AND INDIVIDUAL CONCERN TO THE FORMER . THE SPECIFIC PURPOSE OF THAT PROVISION IS TO PREVENT THE COMMUNITY INSTITUTIONS FROM BEING ABLE TO BAR PROCEEDINGS INSTITUTED BY AN INDIVIDUAL AGAINST A DECISION OF DIRECT AND INDIVIDUAL CONCERN TO HIM BY SIMPLY CHOOSING THE FORM OF A REGULATION .

17 IN ORDER TO DETERMINE WHETHER THE APPLICATION IS ADMISSIBLE IT IS NECESSARY TO EXAMINE WHETHER THE MEASURES UNDER ATTACK ARE REGULATIONS OR DECISIONS WITHIN THE MEANING OF ARTICLE 173 OF THE TREATY . UNDER THE SECOND PARAGRAPH OF ARTICLE 189 THE TEST FOR DISTINGUISHING BETWEEN A REGULATION AND A DECISION IS TO ASCERTAIN WHETHER THE MEASURE IN QUESTION HAS GENERAL APPLICATION OR NOT .

18 IT IS COMMON GROUND THAT THE COMMISSION HAS FIXED , AS FROM 1 MARCH 1973 , UNIFORM BASIC MONETARY COMPENSATORY AMOUNTS CALCULATED WITH REFERENCE TO COMMUNITY GUARANTEED PRICES . CONSEQUENTLY THE AMOUNTS FIXED IN THIS WAY TAKE ACCOUNT , AS FAR AS EXPORTS TO NON-MEMBER COUNTRIES ARE CONCERNED , NOT ONLY OF THE PRICE OF THE PRODUCTS CONCERNED ON THE WORLD MARKET BUT ALSO OF THE DIFFERENCE BETWEEN THAT PRICE AND THE COMMUNITY GUARANTEED PRICE WHICH IS COMPENSATED FOR BY THE EXPORT REFUNDS . THE EFFECT OF APPLYING THE COEFFICIENT TO THE REFUND IS TO FIX A MONETARY COMPENSATORY AMOUNT WHICH IS CALCULATED ON THE BASIS OF THE WORLD MARKET PRICE .

19 AS EMERGED IN CASE 108/77 , OFFERS SUBMITTED BY TENDERERS IN ANSWER TO AN INVITATION TO TENDER ARE EXPRESSED IN NATIONAL CURRENCY IN ACCORDANCE WITH ARTICLE 5 ( 2 ) OF REGULATION NO 2101/75 , BUT AT THE LEVEL OF THE COMMISSION ALL CALCULATIONS ARE EFFECTED IN UNITS OF ACCOUNT . THE TENDERS SUBMITTED ARE CONVERTED , IN ORDER TO MAKE THEM COMPARABLE , INTO UNITS OF ACCOUNT BY APPLYING THE ' ' GREEN ' ' RATES . AWARDS ARE MADE ONLY AFTER TAKING INTO ACCOUNT THE MAXIMUM AMOUNT FIXED IN UNITS OF ACCOUNT AND BY COMPARISON THEREWITH . THE RESULT OF MAKING AWARDS WITH REFERENCE TO THE MAXIMUM AMOUNT FIXED IN UNITS OF ACCOUNT IS THAT THE REFUNDS AWARDED , EXPRESSED IN NATIONAL CURRENCY BY APPLYING THE ' ' GREEN ' ' RATES , ALREADY REFLECT THE IMPACT OF THE REVALUATION OR DEVALUATION OF THE CURRENCY IN QUESTION WHICH THE MONETARY COMPENSATORY AMOUNTS ARE INTENDED TO OFFSET . THUS THE EFFECT OF LEVYING OR GRANTING THE WHOLE OF THE MONETARY COMPENSATORY AMOUNT FIXED FOR INTRA-COMMUNITY TRADE WOULD BE TO DOUBLE THE INCIDENCE OF MONETARY COMPENSATION ON THAT PART OF THE COMMUNITY GUARANTEE PRICE REPRESENTED BY THE EXPORT REFUND . THE APPLICATION OF THE COEFFICIENT AT THE SAME TIME AS THE MONETARY COMPENSATORY AMOUNT IS GRANTED OR LEVIED MAKES IT POSSIBLE TO AVOID THAT DOUBLE INCIDENCE .

20 IN PURSUANCE OF THE ABOVE-MENTIONED PRINCIPLES THE COMMISSION CONSIDERED IT NECESSARY TO ADOPT THE REGULATIONS WHICH ARE CRITICIZED IN THIS CASE .

21 THOSE REGULATIONS DO NOT IN FACT REDUCE THE REFUNDS AWARDED BUT , BY APPLYING THE COEFFICIENT TO THE REFUNDS , MERELY ADJUST THE MONETARY COMPENSATORY AMOUNT BY REDUCING IT IN THE CASE OF REVALUED CURRENCIES AND BY INCREASING IT IN THE CASE OF DEVALUED CURRENCIES . THE APPLICATION OF THE COEFFICIENT IS ONLY A TECHNICAL WAY OF ADJUSTING , IN TRADE WITH NON-MEMBER COUNTRIES , THE BASIC MONETARY COMPENSATORY AMOUNT WHICH IS FIXED AT A UNIFORM LEVEL CALCULATED ON THE BASIS OF COMMUNITY PRICES . THE BASIC MONETARY COMPENSATORY AMOUNT HAS THEREFORE TO BE REDUCED BY AN AMOUNT CALCULATED BY APPLYING TO THE LEVY OR REFUND THE COEFFICIENT DETERMINED BY THE REVALUATION OR DEVALUATION , SO THAT THE REDUCTION OF THE REFUND ITSELF IS NOT AFFECTED .

22 THE SYSTEM OF APPLYING THE COEFFICIENT TO REFUNDS APPLIES TO ALL SUCCESSFUL TENDERERS , WHATEVER THE DATE OF THE AWARD , PROVIDED THAT EXPORTATION TOOK PLACE AFTER 1 JUNE 1978 . THE REGULATIONS IN QUESTION ARE LEGISLATIVE MEASURES . IT IS THEREFORE IMPOSSIBLE TO AGREE WITH THE VIEW THAT THEY ARE OF INDIVIDUAL CONCERN TO THE APPLICANTS WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY AND THE APPLICATION MUST THEREFORE BE DISMISSED AS INADMISSIBLE .

COSTS

23 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

24 THE APPLICANTS HAVE FAILED IN THEIR SUBMISSIONS .

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE ;

2 . ORDERS THE APPLICANTS TO PAY THE COSTS .