61968J0010

++++

1 . MEASURES ADOPTED BY AN INSTITUTION - APPLICATION BY AN INDIVIDUAL AGAINST A DECISION ADDRESSED TO ANOTHER PERSON - DECISION OF INDIVIDUAL CONCERN TO HIM - CRITERIA

( EEC TREATY, ARTICLE 173 )

2 . PROCEDURE - ACTION FOR FAILURE TO ACT - MEASURES REFERRED TO BY ARTICLE 173 OF THE EEC TREATY - INADMISSIBILITY

1 . THE MERE FACT THAT A MEASURE MAY EXERCISE AN INFLUENCE ON THE COMPETITIVE RELATIONSHIPS EXISTING ON A PARTICULAR MARKET CANNOT SUFFICE TO ALLOW ANY TRADER IN ANY COMPETITIVE RELATIONSHIP WHATEVER WITH THE ADDRESSEE OF THE MEASURE TO BE REGARDED AS DIRECTLY AND INDIVIDUALLY CONCERNED BY THAT MEASURE . ONLY THE EXISTENCE OF SPECIFIC CIRCUMSTANCES MAY ENABLE A PERSON SUBJECT TO COMMUNITY LAW AND CLAIMING THAT THE MEASURE AFFECTS HIS POSITION ON THE MARKET TO BRING PROCEEDINGS UNDER ARTICLE 173 .

2 . THE TREATY PROVIDES, PARTICULARLY IN ARTICLE 173, METHODS OF RECOURSE BY WHICH AN ALLEGEDLY ILLEGAL COMMUNITY MEASURE MAY BE DISPUTED AND IF NECESSARY ANNULLED ON THE APPLICATION OF A DULY QUALIFIED PARTY . THE PARTY CONCERNED WHO HAS REQUESTED THE INSTITUTION ADOPTING THE MEASURE TO REVOKE IT CANNOT IF THE INSTITUTION FAILS TO ACT, BRING SUCH AN OMISSION BEFORE THE COURT AS BEING AN ILLEGAL OMISSION TO DEAL WITH THE MATTER . SUCH PROCEEDINGS WOULD AMOUNT TO PROVIDING THOSE CONCERNED WITH A METHOD OF RECOURSE PARALLEL TO THAT OF ARTICLE 173, WHICH WOULD NOT BE SUBJECT TO THE CONDITIONS LAID DOWN BY THE TREATY .

IN JOINED CASES 10/68 AND 18/68

SOCIETA " ERIDANIA " ZUCCHERIFICI NATIONALI, HAVING ITS REGISTERED OFFICE AT 2 CORSO A . PODESTA, GENOA,

SOCIETA ITALIANA PER L ' INDUSTRIA DELGLI ZUCCHERI, HAVING ITS REGISTERED OFFICE AT 19 VIA CORSICA, GENOA,

SOCIETA DISTILLERIA DI CAVARZERE, HAVING ITS REGISTERED OFFICE AT 39 VIA S . FERMO, PADUA,

SOCIETA ROMANA ZUCCHERO, HAVING ITS REGISTERED OFFICE AT 29/4 VIA XX SETTEMBRE, GENOA,

SOCIETA ZUCCHERIFICIO DEL VOLANO, HAVING ITS REGISTERED OFFICE AT 29/4 VIA XX SETTEMBRE, GENOA,

ASSOCIAZIONE NAZIONALE FRA GLI INDUSTRIALI DELLO ZUCCHERO DELL' ALCOOL E DEL LIEVITO, HAVING ITS REGISTERED OFFICE AT 57/4 VIA B . BOSCO, GENOA,

ALL ASSISTED BY NICOLA CATALANO OF THE ROME BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 34B RUE PHILIPPE-II,

APPLICANTS,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, GIANCARLO OLMI, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF EMILE REUTER, 4 BOULEVARD ROYAL,

DEFENDANT,

SUPPORTED BY :

I . CO.PRO.B - COOPERATIVA PRODUTTORI BIETICOLI, HAVING ITS REGISTERED OFFICE AT 15 VIA SAN FELICE, BOLOGNA, AND CO.PRO.A ., COOPERATIVA PRODUTTORI AGRICOLI, HAVING ITS REGISTERED OFFICE AT OSTELLATO ( FERRARA ), BOTH REPRESENTED AND DEFENDED BY FRANCESCO VITTORIO BIANCHI, GUIDO GIORDANI AND GIUSEPPE BERTANI OF THE BOLOGNA BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ANDRE ELVINGER, 84 GRAND-RUE,

AND

II . SOCIETA PER AZIONI ZUCCHERIFICIO CASTIGLIONESE, HAVING ITS REGISTERED OFFICE AT 3 VIA CURTATONE, ROME, ASSISTED BY PROFESSOR GAETANO CASTELLANO, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF FELICIEN JANSEN, 21 RUE ALDRIGEN,

AND

III . GOVERNMENT OF THE ITALIAN REPUBLIC, REPRESENTED BY ADOLFO MARESCA, MINISTER PLENIPOTENTIARY, ACTING AS AGENT, ASSISTED BY PIETRO PERONACI, DEPUTY STATE ADVOCATE-GENERAL, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE ITALIAN EMBASSY,

INTERVENERS,

APPLICATION IN CASE 10/68 FOR THE ANNULMENT :

1 . OF DECISION NO 1/22/66 OF THE COMMISSION OF 27 JULY 1967, ON THE GRANT OF AID FROM THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND AMOUNTING TO 480 000 UNITS OF ACCOUNT FOR THE ENLARGEMENT AND DEVELOPMENT OF THE CAPACITY OF THE MINERBIO ( BOLOGNA ), SUGAR REFINERY, THE PROPERTY OF THE COOPERATIVA PRODUTTORI BIETICOLI CO.PRO.B .;

2 . OF DECISION NO 1/17/INON OF THE COMMISSION OF 2 OCTOBER 1967, ON THE GRANT OF AID FROM THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND AMOUNTING TO 767 000 UNITS OF ACCOUNT FOR THE ENLARGEMENT OF THE SUGAR REFINERY AT OSTELLATO ( FERRARA ), THE PROPERTY OF THE SOCIETA COOPERATIVA PRODUTTORI AGRICOLI CO.PRO.A .;

3 . OF DECISION NO 1/73/67 OF THE COMMISSION OF 7 MARCH 1968 ON THE GRANT OF AID FROM THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND AMOUNTING TO 300 000 UNITS OF ACCOUNT FOR THE ENLARGEMENT AND DEVELOPMENT OF THE CAPACITY OF THE SUGAR REFINERY AT CASTIGLION FLORENTINO ( AREZZO ), THE PROPERTY OF THE ZUCCHERIFICIO CASTIGLIONESE SPA, THE REGISTERED OFFICE OF WHICH IS IN ROME;

IN CASE 18/68 :

FOR THE ANNULMENT OF THE IMPLIED DECISION OF REFUSAL RESULTING FROM ABSENCE OF A REPLY TO THE MEMORANDUM ADDRESSED BY THE APPLICANTS ON 7 MAY 1968 TO THE COMMISSION OF THE EEC IN WHICH THEY REQUESTED THE ANNULMENT OR REVOCATION OF THE SAID DECISIONS,

1 BY APPLICATION 10/68 LODGED AT THE COURT REGISTRY ON 10 MAY 1968, THE APPLICANTS REQUESTED THE ANNULMENT OF DECISIONS OF THE COMMISSION NOS 1/22/66 OF 27 JULY 1967, 1/17/INON OF 2 OCTOBER 1967 AND 1/73/67 OF 7 MARCH 1968, GRANTING AID FROM THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND TO CERTAIN SUGAR REFINERIES ESTABLISHED IN ITALY .

2 BY APPLICATION 18/68 MADE UNDER ARTICLE 175 OF THE TREATY AND LODGED AT THE COURT REGISTRY ON 1 AUGUST 1968, THE SAME APPLICANTS CONTESTED THE IMPLIED DECISION OF REJECTION WHICH, ACCORDING TO THEM RESULTS FROM THE SILENCE MAINTAINED BY THE COMMISSION IN RESPECT OF AN EXTRA-JUDICIAL REQUEST BY WHICH THEY HAD SOUGHT THE REVOCATION OF THE ABOVEMENTIONED DECISIONS .

3 BY ORDER OF 25 OCTOBER 1968 THE COURT JOINED THE TWO CASES FOR THE PURPOSES OF JUDGMENT .

ADMISSIBILITY OF APPLICATION 10/68

4 THE DEFENDANT AND THE INTERVENERS DISPUTE THE ADMISSIBILITY OF APPLICATION 10/68 BY ASSERTING, ON THE ONE HAND, THAT IT IS OUT OF TIME, IN SO FAR AS IT IS DIRECTED AGAINST THE FIRST TWO CONTESTED DECISIONS THE ADOPTION OF WHICH WAS MADE PUBLIC BY NOTICES PUBLISHED IN THE OFFICIAL JOURNAL ON 4 AUGUST AND 7 OCTOBER 1967 RESPECTIVELY, AND ON THE OTHER HAND, THAT THE APPLICANTS, WHO ARE NOT ADDRESSEES OF THE CONTESTED MEASURES, ARE NOT DIRECTLY AND INDIVIDUALLY CONCERNED BY THEM AND CONSEQUENTLY CANNOT REQUEST THEIR ANNULMENT .

AS THE SECOND PART OF THIS OBJECTION OF INADMISSIBILITY REFERS TO THE APPLICATION AS A WHOLE, IT IS APPROPRIATE TO CONSIDER IT FIRST .

5 UNDER ARTICLE 173 OF THE TREATY ANY NATURAL OR LEGAL PERSON MAY INSTITUTE PROCEEDINGS AGAINST A DECISION ADDRESSED TO THAT PERSON OR AGAINST A DECISION WHICH, ALTHOUGH IN THE FORM OF A REGULATION OR A DECISION ADDRESSED TO ANOTHER PERSON, IS OF DIRECT INDIVIDUAL CONCERN TO THE FORMER .

UNDER THE TERMS OF THE LAST ARTICLE OF EACH OF THE CONTESTED DECISIONS, THOSE DECISIONS ARE ADDRESSED TO THE ITALIAN GOVERNMENT AS WELL AS TO THE RESPECTIVE BENEFICIARIES .

CONSEQUENTLY THE RIGHT OF THE APPLICANTS TO ACT DEPENDS ON THE QUESTION WHETHER THESE DECISIONS ARE OF DIRECT AND INDIVIDUAL CONCERN TO THEM .

6 THE APPLICANTS CONSIDER THAT THIS IS SO IN THEIR CASE BY REASON OF THE FACT THAT, AS THE AIDS GRANTED ARE LIKELY TO AFFECT COMPETITIVE RELATIONSHIPS ON THE ITALIAN SUGAR MARKET, THEY SUFFER DAMAGE BY THE ADVANTAGE THUS GIVEN TO THE ADDRESSEES OF THE CONTESTED DECISIONS, WITH WHOM THEY ARE IN COMPETITION; PARTICULARLY BECAUSE OF THE INTRODUCTION OF THE QUOTA SYSTEM PROVIDED FOR IN REGULATION NO 1009/67/EEC OF THE COUNCIL OF 18 DECEMBER 1967, ON THE COMMON ORGANIZATION OF THE MARKET IN SUGAR ( OJ NO 308 ) AND BY REGULATION NO 1027/67/EEC OF THE COUNCIL OF 21 DECEMBER 1967 ON THE FIXING OF BASIC QUOTAS FOR SUGAR ( OJ NO 313 ), THE CONTESTED DECISIONS AFFECT THE POSITION OF THE APPLICANTS ON THE ITALIAN SUGAR MARKET IN A DIRECT AND INDIVIDUAL MANNER .

7 THE MERE FACT THAT A MEASURE MAY EXERCISE AN INFLUENCE ON THE COMPETITIVE RELATIONSHIPS EXISTING ON THE MARKET IN QUESTION CANNOT SUFFICE TO ALLOW ANY TRADER IN ANY COMPETITIVE RELATIONSHIP WHATEVER WITH THE ADDRESSEE OF THE MEASURE TO BE REGARDED AS DIRECTLY AND INDIVIDUALLY CONCERNED BY THAT MEASURE .

ONLY THE EXISTENCE OF SPECIFIC CIRCUMSTANCES MAY ENABLE A PERSON SUBJECT TO COMMUNITY LAW AND CLAIMING THAT THE MEASURE AFFECTS HIS POSITION ON THE MARKET TO BRING PROCEEDINGS UNDER ARTICLE 173 .

8 THE ALLEGATION OF THE APPLICANTS THAT THE CONTESTED DECISIONS HAVE A DIRECT EFFECT UPON THEIR SITUATION IN THE SYSTEM OF DISTRIBUTION OF QUOTAS PROVIDED FOR BY REGULATIONS NOS 1009/67 AND 1027/67 TENDS TO SHOW THE EXISTENCE OF SUCH SPECIFIC CIRCUMSTANCES IN RESPECT OF THEM .

IN ORDER TO ASSESS THE RELEVANCE OF THIS ARGUMENT IT IS APPROPRIATE TO POINT OUT CERTAIN PECULIARITIES OF THE SAID MACHINERY AS OPERATED IN RESPECT OF THE ITALIAN SUGAR MARKET .

9 IN ORDER TO PREVENT SURPLUS PRODUCTION AND TO PROMOTE REGIONAL SPECIALIZATION OF PRODUCTION, THE AFOREMENTIONED REGULATIONS HAVE FOR A TRANSITIONAL PERIOD ESTABLISHED A SYSTEM OF QUOTAS CONSISTING IN THE ALLOCATION TO EACH SUGAR UNDERTAKING OR FACTORY OF A BASIC QUOTA FOR WHICH THE PRICE AND SALES GUARANTEE IS BORNE BY THE COMMUNITY, SUCH GUARANTEE BEING LIMITED OR EXCLUDED FOR QUANTITIES MANUFACTURED ABOVE THE QUOTA .

FOR THIS PURPOSE EACH MEMBER STATE IS ALLOCATED A BASIC QUANTITY TO DISTRIBUTE BETWEEN THE NATIONAL SUGAR UNDERTAKINGS AND FACTORIES, IN RESPECT OF 85 PER CENT TO 90 PER CENT OF THE AMOUNT IN ACCORDANCE WITH A MATHEMATICAL FORMULA LAID DOWN IN ARTICLE 23 OF REGULATION NO 1009/67, BASED ON THEIR PRODUCTION DURING A REFERENCE PERIOD ( THE MARKETING YEARS 1961/62 TO 1965/66 ), AND IN RESPECT OF THE REMAINING 10 PER CENT TO 15 PER CENT AT THE DISCRETION OF THE GOVERNMENT CONCERNED IN ORDER TO TAKE INTO ACCOUNT POSSIBLE CHANGES IN THE SUGAR INDUSTRY AND SUGAR-BEET CULTIVATION OR SPECIAL CIRCUMSTANCES .

10 BY A MINISTERIAL DECREE OF 26 FEBRUARY 1968, THE ITALIAN GOVERNMENT ADOPTED, IN RESPECT OF THE DISTRIBUTION OF 10 PER CENT OF THE BASIC QUANTITY, CRITERIA WHICH ALLOWED ONLY UNDERTAKINGS SATISFYING CERTAIN GENERAL CONDITIONS AND OBJECTIVES TO OBTAIN WITHIN PREVIOUSLY FIXED LIMITS, AND LEAVING ASIDE ONE EXCEPTION IRRELEVANT TO THE PRESENT CASE, AN AUTOMATIC INCREASE OF THEIR BASIC QUOTA .

THUS THE PRODUCTION CAPACITY OF THE UNDERTAKINGS AND FACTORIES DID NOT PLAY ANY PART IN THE DISTRIBUTION OF THIS 10 PER CENT, THE ONLY VARIABLE ELEMENT OF THE SYSTEM, AS SUCH DISTRIBUTION WAS BASED ON CRITERIA RELATING TO COMPLETELY DIFFERENT CIRCUMSTANCES, SUCH AS THE AREA WHERE THE FACTORY WAS ESTABLISHED, THE CHARACTER AND NUMBER OF UNITS OF PRODUCTION OF THE UNDERTAKING OR THE RESULTS OF SUGAR MARKETING YEARS BETWEEN THE REFERENCE PERIOD AND THE ENTRY INTO FORCE OF THE SAID MINISTERIAL DECREE .

11 IT APPEARS FROM THESE FACTS THAT SUCH EAGGF AID AS THAT GRANTED BY THE CONTESTED DECISIONS HAS NO INFLUENCE UPON THE DISTRIBUTION OF QUOTAS EXCEPT TO THE EXTENT TO WHICH THE CRITERIA ADOPTED BY THE GOVERNMENTS ALLOW IT .

CONSEQUENTLY THIS AID HAS NO DIRECT EFFECT ON THE SAID DISTRIBUTION .

12 THE APPLICANTS HAVE FURTHER ALLEGED THAT THE CONTESTED DECISIONS, AND IN PARTICULAR THAT CONCERNING THE CASTIGLION FIORENTINO SUGAR REFINERY, INFLUENCED THE DISTRIBUTION OF THE BASIC QUANTITY BY THE ITALIAN GOVERNMENT, BY REASON OF THE FACT THAT THEY MADE THE PAYMENT OF AID SUBJECT TO AN UNDERTAKING FROM THE SAID GOVERNMENT TO ALLOCATE TO THE RECIPIENTS A BASIC QUOTA CORRESPONDING TO THEIR INCREASED CAPACITY .

13 NEVERTHELESS, THE CONDITION MENTIONED CANNOT BE REGARDED AS HAVING DETERMINED THE CONTENT OF THE CRITERIA FOR DISTRIBUTION ADOPTED BY THE ITALIAN GOVERNMENT .

ON THE CONTRARY, THE COMMISSION COULD NOT GRANT EAGGF AID WITHOUT BEING PREVIOUSLY ASSURED OF THE CONFORMITY OF THESE DECISIONS WITH THE DISTRIBUTION POLICY WHICH THE ITALIAN GOVERNMENT INTENDED TO ADOPT IN ACCORDANCE WITH THE REGULATIONS ON THE COMMON ORGANIZATION OF THE MARKET IN SUGAR .

14 THE CIRCUMSTANCES RELIED UPON BY THE APPLICANTS DO NOT, THEREFORE, ESTABLISH THAT THE CONTESTED DECISIONS WERE OF DIRECT AND INDIVIDUAL CONCERN TO THEM .

CONSEQUENTLY, AND WITHOUT ITS BEING NECESSARY TO CONSIDER THE OTHER SUBMISSIONS OF INADMISSIBILITY, APPLICATION 10/68 MUST BE HELD TO BE INADMISSIBLE .

ADMISSIBILITY OF APPLICATION 18/68

15 THIS APPLICATION CONCERNS THE ANNULMENT OF THE IMPLIED DECISION OF REJECTION RESULTING FROM THE SILENCE MAINTAINED BY THE COMMISSION IN RESPECT OF THE REQUEST ADDRESSED TO IT BY THE APPLICANTS SEEKING THE ANNULMENT OR REVOCATION OF THE THREE DISPUTED DECISIONS FOR ILLEGALITY OR OTHERWISE BECAUSE THEY ARE INAPPROPRIATE .

16 THE ACTION PROVIDED FOR IN ARTICLE 175 IS INTENDED TO ESTABLISH AN ILLEGAL OMISSION AS APPEARS FROM THAT ARTICLE, WHICH REFERS TO A FAILURE TO ACT " IN INFRINGEMENT OF THIS TREATY " AND FROM ARTICLE 176 WHICH REFERS TO A FAILURE TO ACT DECLARED TO BE " CONTRARY TO THIS TREATY ".

WITHOUT STATING UNDER WHICH PROVISION OF COMMUNITY LAW THE COMMISSION WAS REQUIRED TO ANNUL OR TO REVOKE THE SAID DECISIONS, THE APPLICANTS HAVE CONFINED THEMSELVES TO ALLEGING THAT THOSE DECISIONS WERE ADOPTED IN INFRINGEMENT OF THE TREATY AND THAT THIS FACT ALONE WOULD SUFFICE TO MAKE THE COMMISSION'S FAILURE TO ACT SUBJECT TO THE PROVISIONS OF ARTICLE 175 .

17 THE TREATY PROVIDES, HOWEVER, PARTICULARLY IN ARTICLE 173, OTHER METHODS OF RECOURSE BY WHICH AN ALLEGEDLY ILLEGAL COMMUNITY MEASURE MAY BE DISPUTED AND IF NECESSARY ANNULLED ON THE APPLICATION OF A DULY QUALIFIED PARTY .

TO ADMIT, AS THE APPLICANTS WISH TO DO, THAT THE PARTIES CONCERNED COULD ASK THE INTITUTION FROM WHICH THE MEASURE CAME TO REVOKE IT AND, IN THE EVENT OF THE COMMISSION'S FAILING TO ACT, REFER SUCH FAILURE TO THE COURT AS AN ILLEGAL OMISSION TO DEAL WITH THE MATTER WOULD AMOUNT TO PROVIDING THEM WITH A METHOD OF RECOURSE PARALLEL TO THAT OF ARTICLE 173, WHICH WOULD NOT BE SUBJECT TO THE CONDITIONS LAID DOWN BY THE TREATY .

18 THIS APPLICATION DOES NOT THEREFORE SATISFY THE REQUIREMENTS OF ARTICLE 175 OF THE TREATY AND AND MUST THUS BE HELD TO BE INADMISSIBLE .

19 UNDER ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . AS THE APPLICATIONS OF THE APPLICANTS ARE INADMISSIBLE, IT IS APPROPRIATE TO ORDER THEM TO PAY THE COSTS, INCLUDING THOSE OF THE INTERVENTIONS;

THE COURT

HEREBY;

1 . DISMISSES APPLICATIONS 10/68 AND 18/68 AS INADMISSIBLE;

2 . ORDERS THE APPLICANTS TO PAY THE COSTS, INCLUDING THOSE OF THE INTERVENTIONS .