61978J0103

1 . ACTS OF AN INSTITUTION - LEGAL NATURE - PROVISION AMENDING A REGULATION - IN THE NATURE OF A REGULATION

( REGULATION ( EEC ) NO 3331/74 OF THE COUNCIL , ART . 2 ; COUNCIL REGULATION ( EEC ) NO 298/78 )

2 . APPLICATION FOR ANNULMENT - NATURAL OR LEGAL PERSONS - MEASURE OF DIRECT AND INDIVIDUAL CONCERN TO THEM - CRITERIA

( EEC TREATY , ART 173 , SECOND PARAGRAPH )

1 . SINCE THE NATURE OF THE ORIGINAL TEXT OF ARTICLE 2 OF REGULATION ( EEC ) NO 3331/74 IS PURELY THAT OF A REGULATION SO THAT IT CANNOT THEREFORE BE CONSIDERED TO CONSTITUTE IN CERTAIN RESPECTS A DECISION , THE AMENDMENT TO THAT PROVISION MADE BY REGULATION ( EEC ) NO 298/78 IS , IN THE SAME WAY AS THE ABOVE-MENTIONED ARTICLE 2 , IN THE NATURE OF A REGULATION .

2 . THE CONDITIONS LAID DOWN IN THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY ARE NOT FULFILLED WHEN ONLY THE MEASURES ADOPTED BY A MEMBER STATE PURSUANT TO A PROVISION OF THE CONTESTED REGULATION CAN BE OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANTS .

IN JOINED CASES 103 TO 109/78

SOCIETE DES USINES DE BEAUPORT , BORDEAUX ,

SOCIETE SUCRIERE DE LA GRANDE TERRE , GARDEL AU MOULE ( GUADELOUPE ),

SOCIETE INDUSTRIELLE DE SUCRERIE , PARIS ,

COMPAGNIE SUCRIERE ET RHUMIERE DE LA MARTINIQUE , TRINITE ( MARTINIQUE ),

SOCIETE DES PLANTEURS DE CANNES ASSOCIES , LAMENTIN ( GUADELOUPE ),

SOCIETE D ' EXPLOITATION SUCRIERE DE MARIE GALANTE , POINTE-A-PITRE , ( GUADELOUPE ),

DISTILLERIE SUCRERIE GROSSE MONTAGNE , LAMENTIN ( GUADELOUPE ),

REPRESENTED BY DOMINIQUE VOILLEMOT , ADVOCATE AT THE PARIS BAR , AND BERNARD LIONEL DORE , ADVOCATE AT THE SEINE-SAINT DENIS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MESSRS DUPONT AND KONSBRUCK , ADVOCATES , 14A RUE DES BAINS ,

APPLICANTS ,

AND

SYNDICAT GENERAL DES PRODUCTEURS DE SUCRE ET DE RHUM DES ANTILLES FRANCAISES , REPRESENTED BY DOMINIQUE VOILLEMOT , ADVOCATE AT THE PARIS BAR , AND BERNARD LIONEL DORE , ADVOCATE AT THE SEINE-SAINT DENIS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MESSRS DUPONT AND KONSBRUCK , ADVOCATES , 14A RUE DES BAINS ,

INTERVENER ,

V

COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY DANIEL VIGNES , DIRECTOR AT THE LEGAL SERVICE OF THE COUNCIL , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF J . N . VAN DEN HOUTEN , DIRECTOR OF THE LEGAL SERVICE OF THE EUROPEAN INVESTMENT BANK , 2 , PLACE DE METZ ,

DEFENDANT ,

APPLICATION , AT THE PRESENT STAGE OF THE PROCEEDINGS , FOR A DECLARATION THAT AN APPLICATION FOR THE ANNULMENT OF COUNCIL REGULATION ( EEC ) NO 298/78 OF 13 FEBRUARY 1978 AMENDING REGULATION ( EEC ) NO 3331/74 ON THE ALLOCATION AND ALTERATION OF THE BASIC QUOTAS FOR SUGAR ( OFFICIAL JOURNAL 1978 , NO L 45 , P . L ) IS ADMISSIBLE ,

1THE APPLICATIONS , WHICH WERE ENTERED ON THE COURT REGISTER ON 28 APRIL 1978 , ARE FOR THE ANNULMENT OF COUNCIL REGULATION ( EEC ) NO 298/78 OF 13 FEBRUARY 1978 AMENDING REGULATION ( EEC ) NO 3331/74 ON THE ALLOCATION AND ALTERATION OF THE BASIC QUOTAS FOR SUGAR ( OFFICIAL JOURNAL 1978 , NO L 45 , P . 1 ).

2THE SYNDICAT GENERAL DES PRODUCTEURS DE SUCRE ET DE RHUM DES ANTILLES FRANCAISES IS INTERVENING IN SUPPORT OF THE APPLICANTS ' SUBMISSIONS .

3ARTICLE 24 OF REGULATION ( EEC ) NO 3330/74 OF THE COUNCIL OF 19 DECEMBER 1974 ON THE COMMON ORGANIZATION OF THE MARKET IN SUGAR ( OFFICIAL JOURNAL 1974 , NO L 359 , P . 1 ) PROVIDES FOR THE ALLOCATION BY MEMBER STATES OF BASIC QUOTAS TO UNDERTAKINGS ; ARTICLE 24 ( 3 ) STIPULATES THAT ' ' THE COUNCIL . . . SHALL ADOPT THE GENERAL RULES FOR THE APPLICATION OF THIS ARTICLE AND ANY DEROGATIONS THEREFROM ' ' .

4THE COUNCIL ADOPTED ON THE SAME DATE AND PURSUANT TO THAT PROVISION REGULATION ( EEC ) NO 3331/74 ON THE ALLOCATION AND ALTERATION OF THE BASIC QUOTAS FOR SUGAR .

5ARTICLE 2 OF THE LATTER REGULATION PROVIDES FOR DEROGATIONS FROM ARTICLE 24 OF REGULATION ( EEC ) NO 3330/74 .

6IN ITS ORIGINAL VERSION THAT ARTICLE PROVIDED FOR TWO DEROGATIONS , ONE OF A GENERAL NATURE IN ARTICLE 2 ( 1 ) AND THE OTHER OF A SPECIAL NATURE IN ARTICLE 2 ( 2 ) IN RESPECT OF THE REPUBLIC OF ITALY .

7THE CONTESTED REGULATION AMENDED ARTICLE 2 OF REGULATION NO 3331/74 BY ADDING TO THE TWO EXISTING PARAGRAPHS A PARAGRAPH 3 WHICH PROVIDES AS FOLLOWS :

' ' 3 . BY WAY OF DEROGATION FROM THE FIRST , SECOND AND THIRD SUBPARAGRAPHS OF ARTICLE 24 ( 2 ) OF REGULATION ( EEC ) NO 3330/74 AND PARAGRAPH 1 OF THIS ARTICLE , THE FRENCH REPUBLIC MAY , UNDER THE PLANS FOR RESTRUCTURING THE SUGAR-CANE AND SUGAR SECTORS IN ITS OVERSEAS DEPARTMENTS , REDUCE THE BASIC QUOTA FOR EACH UNDERTAKING ESTABLISHED IN THESE DEPARTMENTS BY A QUANTITY NOT EXCEEDING , FOR THE ENTIRE PERIOD 1 JULY 1977 TO 30 JUNE 1980 , 10% OF THE BASIC QUOTA APPLICABLE TO EACH UNDERTAKING DURING THE 1976/77 SUGAR MARKETING YEAR .

FURTHER , FOR THE 1977/78 MARKETING YEAR , THE REDUCTION IN THE BASIC QUOTA MAY NOT EXCEED THE DIFFERENCE BETWEEN THE BASIC QUOTA ORIGINALLY APPLICABLE FOR THIS MARKETING YEAR AND THE PRODUCTION ACHIEVED WITHIN THIS BASIC QUOTA .

THE FRENCH REPUBLIC SHALL ALLOCATE THE AMENDED QUOTAS BEFORE THE END OF THE MARKETING YEAR PRECEDING THAT OF THEIR APPLICATION . HOWEVER , FOR THE 1977/78 SUGAR MARKETING YEAR , THE AMENDED QUOTAS SHALL BE ALLOCATED BEFORE THE END OF THE SAID MARKETING YEAR .

THE RESTRUCTURING PLANS AND THE RESULTANT MEASURES AFFECTING THE BASIC QUOTAS SHALL BE COMMUNICATED FORTHWITH TO THE COMMISSION . ' '

8THE RECITALS OF THE PREAMBLE TO THE CONTESTED REGULATION JUSTIFY THIS ADDITION ON THE GROUND THAT IT IS DESIRABLE TO MAKE IT POSSIBLE FOR A PART OF THE FRENCH REPUBLIC ' S BASIC QUANTITY ASSIGNED BY REGULATION ( EEC ) NO 3330/74 TO ITS OVERSEAS DEPARTMENTS WHICH IS NOT USED UP IN OTHER OVERSEAS DEPARTMENTS , IN OTHER WORDS GUADELOUPE AND MARTINIQUE , TO BE ALLOCATED TO AN OVERSEAS DEPARTMENT , IN OTHER WORDS REUNION .

9THE APPLICANTS CONSIDER THAT THEIR ' ' ESTABLISHED RIGHTS ' ' HAVE BEEN ADVERSELY AFFECTED BY REGULATION ( EEC ) NO 298/78 AND REQUEST ITS ANNULMENT UNDER ARTICLE 173 OF THE TREATY .

ADMISSIBILITY

10THE COUNCIL , THE DEFENDANT , RAISED AN OBJECTION OF INADMISSIBILITY AGAINST THE APPLICATIONS UNDER ARTICLE 91 OF THE RULES OF PROCEDURE BY DOCUMENT OF 3 JULY 1978 AND REQUESTED THE COURT TO DECIDE ON THAT PRELIMINARY OBJECTION WITHOUT EXAMINING THE SUBSTANCE OF THE CASE .

11IT MAINTAINS THAT THE APPLICATIONS FOR ANNULMENT DO NOT COMPLY WITH THE CONDITIONS LAID DOWN IN THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY IN THAT THE CONTESTED MEASURE DOES NOT CONSTITUTE A DECISION ADOPTED IN THE FORM OF A REGULATION AND IS NOT OF EITHER DIRECT OR INDIVIDUAL CONCERN TO THE APPLICANTS .

12THE APPLICANTS ALLEGE THAT THE CONTESTED MEASURE CONSTITUTES A DECISION ADOPTED WITH REGARD TO CLEARLY DEFINED UNDERTAKINGS AND IS OF DIRECT AND INDIVIDUAL CONCERN TO THEM .

13AS REGARDS THE NATURE OF THE CONTESTED MEASURE , THE FOURTH SUBPARAGRAPH OF ARTICLE 24 ( 2 ) OF REGULATION NO 3330/74 FIXES THE BASIC QUANTITIES FOR EACH MEMBER STATE , MAKING A DISTINCTION IN THE CASE OF FRANCE BETWEEN METROPOLITAN FRANCE , FOR WHICH THE BASIC QUANTITY IS FIXED AT 2 530 000 TONNES OF WHITE SUGAR , AND THE FRENCH OVERSEAS DEPARTMENTS , FOR WHICH THAT QUANTITY IS FIXED AT 466 000 TONNES OF WHITE SUGAR .

14THUS THE TERRITORY OF THE COMMUNITY IS DIVIDED FOR THE PURPOSES OF THE ALLOCATION OF THE BASIC QUOTAS INTO AS MANY PARTS AS THERE ARE MEMBER STATES , FRANCE BEING DIVIDED INTO TWO DIFFERENT ZONES .

15ARTICLE 2 OF REGULATION NO 3331/74 , BY PROVIDING FOR DEROGATIONS FROM THE RULES AS TO THE DISTRIBUTION OF THE BASIC QUOTAS , WHICH ARE NECESSARY SO AS TO TAKE INTO ACCOUNT ANY CHANGES IN THE STRUCTURE OF THE SUGAR INDUSTRY , INTRODUCED FROM ITS ORIGIN BOTH A GENERAL DEROGATION APPLICABLE TO ALL MEMBER STATES , IN OTHER WORDS TO ALL PARTS OF THE COMMON MARKET LISTED IN ARTICLE 24 OF REGULATION NO 3330/74 , AND A SPECIAL DEROGATION IN RESPECT OF A SINGLE PART OF THE COMMON MARKET , IN OTHER WORDS THE REPUBLIC OF ITALY , HAVING REGARD TO THE SPECIAL SITUATION IN THE SUGAR SECTOR IN THAT COUNTRY .

16THESE DEROGATIONS DO NOT CONSTITUTE GENERAL OR SPECIAL EXCEPTIONS TO THE RULES GOVERNING THE DISTRIBUTION OF THE BASIC QUOTAS BUT ARE AN INTEGRAL PART OF THOSE VERY RULES SO AS TO FORM A LEGISLATIVE WHOLE AIMING ON THE ONE HAND TO PROVIDE LEGAL CERTAINTY FOR THE UNDERTAKINGS CONCERNED AND , ON THE OTHER , EFFECTIVE ADMINISTRATION CAPABLE OF ADAPTING ITSELF , WITHIN CERTAIN LIMITS , TO CHANGES IN THE STRUCTURE OF THE SUGAR SECTOR .

17IT IS NECESSARY TO CONCLUDE FROM THIS THAT THE NATURE OF THE ORIGINAL TEXT OF ARTICLE 2 OF REGULATION NO 3331/74 IS PURELY THAT OF A REGULATION AND THAT IT CANNOT THEREFORE BE CONSIDERED TO CONSTITUTE IN CERTAIN RESPECTS A DECISION .

18THE AMENDMENT MADE BY THE CONTESTED REGULATION HAS NOT CHANGED THE NATURE OF THE PROVISION , SINCE PARAGRAPH 3 WHICH HAS BEEN ADDED THERETO CONTAINS MERELY AN ADDITIONAL DEROGATION WHICH DOES NOT CONCERN CERTAIN INDIVIDUAL UNDERTAKINGS BUT A PART OF THE TERRITORY WHICH IS EXPRESSLY REFERRED TO IN ARTICLE 24 OF REGULATION NO 3330/74 AND IN RESPECT OF WHICH A SEPARATE BASIC QUANTITY HAS BEEN FIXED .

19IT IS NECESSARY THEREFORE TO CONCLUDE FROM THIS THAT THE AMENDMENT MADE BY THE CONTESTED REGULATION SHARES IS , IN THE SAME WAY AS ARTICLE 2 OF REGULATION NO 3331/74 , IN THE NATURE OF A REGULATION .

20MOREOVER , THE CONTESTED REGULATION IS NOT OF DIRECT OR INDIVIDUAL CONCERN TO THE APPLICANTS .

21ALTHOUGH IT IS TRUE THAT THEY COULD HAVE BEEN CONCERNED BY THE USE WHICH THE MEMBER STATE MIGHT MAKE OF THE DEROGATING RULE ADOPTED , PARAGRAPH 3 ADDED TO THAT ARTICLE NEVERTHELESS PROVIDES EXPRESSLY THAT ' ' THE FRENCH REPUBLIC MAY . . . ' ' REDUCE THE BASIC QUOTA FOR EACH UNDERTAKING ' ' , THUS LEAVING TO THAT MEMBER STATE THE DECISION WHETHER OR NOT TO REDUCE THE BASIC QUOTAS AND , IF THE ANSWER IS IN THE AFFIRMATIVE , TO DECIDE WHETHER THE BASIC QUOTAS OF ALL OR OF CERTAIN UNDERTAKINGS ARE TO BE REDUCED .

22IT IS THEREFORE CLEAR THAT ONLY THE MEASURES ADOPTED BY THE FRENCH REPUBLIC UNDER THE DEROGATING RULE LAID DOWN BY REGULATION NO 298/78 COULD BE OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANTS .

23IT IS NECESSARY TO CONCLUDE FROM THIS THAT THE CONDITIONS LAID DOWN IN THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY ARE NOT FULFILLED IN THE PRESENT CASE SO THAT THE APPLICATIONS MUST BE DISMISSED AS INADMISSIBLE .

COSTS

24UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR .

25IN THE PRESENT CASE THE APPLICANTS AND THE INTERVENER HAVE FAILED IN THEIR SUBMISSIONS .

26IT IS THEREFORE NECESSARY TO ORDER THEM TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT ,

HEREBY :

1 . DISMISSES THE APPLICATIONS AS INADMISSIBLE ;

2 . ORDERS THE APPLICANTS TO PAY THE COSTS OF THE APPLICATIONS ;

3 . ORDERS THE INTERVENER TO PAY THE COSTS OF THE INTERVENTION .