61979J0139

1 . APPLICATION FOR A DECLARATION OF NULLITY - NATURAL OR LEGAL PERSONS - MEASURES OF DIRECT AND INDIVIDUAL CONCERN TO THEM - ADMISSIBILITY

( EEC TREATY , ART . 173 , SECOND PARAGRAPH ; COUNCIL REGULATION NO 1111/77 , ART . 9 ( AS AMENDED BY REGULATION NO 1293/79 ) AND ANNEX II )

2 . PROCEDURE - INTERVENTION - RIGHT WHICH ALL INSTITUTIONS OF THE COMMUNITY HAVE - CONDITIONS FOR ITS EXERCISE - INTEREST IN TAKING PROCEEDINGS - UNNECESSARY CONDITION

( STATUTE OF THE COURT OF JUSTICE OF THE EEC , ART . 37 , FIRST PARAGRAPH )

3 . AGRICULTURE - RULES ON COMPETITION - CONDITIONS OF APPLICATION - DISCRETION OF THE COUNCIL

( EEC TREATY , ART . 42 )

4 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - DISCRIMINATION BETWEEN PRODUCERS OR CONSUMERS WITHIN THE COMMUNITY - CONCEPT

( EEC TREATY , ART . 40 ( 3 ))

5 . MEASURES ADOPTED BY THE INSTITUTIONS - PROCEDURE FOR WORKING THEM OUT - DUE CONSULTATION OF THE PARLIAMENT - ESSENTIAL FORMALITY - SCOPE

( EEC TREATY , ART . 43 ( 2 ), THIRD SUBPARAGRAPH , AND ART . 173 )

1 . SINCE ARTICLE 9 ( 4 ) OF REGULATION NO 1111/77 ( AS AMENDED BY ARTICLE 3 OF REGULATION NO 1293/79 ), ITSELF APPLIES THE CRITERIA LAID DOWN IN ARTICLE 9 ( 1 ) TO ( 3 ) TO EACH OF THE UNDERTAKINGS SET OUT IN ANNEX II TO THE SAID REGULATION , THE LATTER ARE THE ADDRESSEES AND ARE THUS DIRECTLY AND INDIVIDUALLY CONCERNED .

2 . THE FIRST PARAGRAPH OF ARTICLE 37 OF THE STATUTE OF THE COURT OF JUSTICE PROVIDES THAT ALL THE INSTITUTIONS OF THE COMMUNITY HAVE THE SAME RIGHT TO INTERVENE . IT IS NOT POSSIBLE TO RESTRICT THE EXERCISE OF THAT RIGHT BY ANY ONE OF THEM WITHOUT ADVERSELY AFFECTING ITS INSTITUTIONAL POSITION AS INTENDED BY THE TREATY AND IN PARTICULAR ARTICLE 4 ( 1 ).

THE RIGHT TO INTERVENE WHICH THE INSTITUTIONS HAVE IS NOT SUBJECT TO THE CONDITION THAT THEY HAVE AN INTEREST IN TAKING PROCEEDINGS .

3 . IN THE EXERCISE OF THE POWER CONFERRED ON IT BY THE FIRST PARAGRAPH OF ARTICLE 42 OF THE EEC TREATY TO DETERMINE TO WHAT EXTENT THE RULES ON COMPETITION ARE TO BE APPLIED IN THE AGRICULTURAL SECTOR , AS IN ALL IMPLEMENTATION OF THE COMMON AGRICULTURAL POLICY THE COUNCIL HAS A WIDE MEASURE OF DISCRETION .

4 . DIFFERENT TREATMENT OF INDUSTRIES WHICH IS TO BE EXPLAINED BY OBJECTIVE DIFFERENCES BETWEEN THE SITUATIONS OF THOSE INDUSTRIES CANNOT CONSTITUTE DISCRIMINATION WITHIN THE MEANING OF ARTICLE 40 ( 3 ) OF THE EEC TREATY .

NOR IS THERE DISCRIMINATION WITHIN THE MEANING OF THAT PROVISION WHEN IN ADOPTING MEASURES OF GENERAL INTEREST THE COUNCIL DOES NOT TAKE ACCOUNT OF THE DIFFERENT SITUATIONS BETWEEN THOSE INDUSTRIES DUE TO THEIR COMMERCIAL CHOICES AND INTERNAL POLICY .

5 . THE CONSULTATION PROVIDED FOR IN THE THIRD SUBPARAGRAPH OF ARTICLE 43 ( 2 ) AS IN OTHER SIMILAR PROVISIONS OF THE EEC TREATY , IS THE MEANS WHICH ALLOWS THE PARLIAMENT TO PLAY AN ACTUAL PART IN THE LEGISLATIVE PROCESS OF THE COMMUNITY . SUCH POWER REPRESENTS AN ESSENTIAL FACTOR IN THE INSTITUTIONAL BALANCE INTENDED BY THE TREATY . ALTHOUGH LIMITED , IT REFLECTS , AT COMMUNITY LEVEL , THE FUNDAMENTAL DEMOCRATIC PRINCIPLE THAT THE PEOPLES SHOULD TAKE PART IN THE EXERCISE OF POWER THROUGH THE INTERMEDIARY OF A REPRESENTATIVE ASSEMBLY .

DUE CONSULTATION OF THE PARLIAMENT IN THE CASES PROVIDED FOR BY THE TREATY THEREFORE CONSTITUTES AN ESSENTIAL FORMALITY DISREGARD OF WHICH MEANS THAT THE MEASURE CONCERNED IS VOID . OBSERVANCE OF THAT REQUIREMENT IMPLIES THAT THE PARLIAMENT HAS EXPRESSED ITS OPINION . IT IS IMPOSSIBLE TO TAKE THE VIEW THAT THE REQUIREMENT IS SATISFIED BY THE COUNCIL ' S SIMPLY ASKING FOR THE OPINION , IF NO OPINION IS AFTERWARDS GIVEN BY THE PARLIAMENT .

IN CASE 139/79

MAIZENA GMBH , WHOSE REGISTERED OFFICE IS AT 218 SPALDINGSTRASSE , D-2000 HAMBURG , REPRESENTED BY ITS DIRECTORS KARL-HEINZ SCHLIETER AND KLAUS A . SCHROETER , ASSISTED BY HANS G . KEMMLER , BARBARA RAPP-JUNG AND ALEXANDER BOEHLKE , OF THE FRANKFURT AM MAIN BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , 34B RUE PHILIPPE II ,

APPLICANT ,

SUPPORTED BY

EUROPEAN PARLIAMENT , REPRESENTED BY ITS DIRECTOR-GENERAL FRANCESCO PASETTI BOMBARDELLA , ASSISTED BY ROLAND BIEBER , PRINCIPAL ADMINISTRATOR IN ITS LEGAL DEPARTMENT , AND PROFESSOR ARVED DERINGER , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE SECRETARIAT GENERAL OF THE EUROPEAN PARLIAMENT ,

INTERVENER ,

V

COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY DANIEL VIGNES , DIRECTOR IN THE LEGAL DEPARTMENT , ASSISTED BY ARTHUR BRAUTIGAM AND HANS-JOACHIM GLAESNER , ACTING AS JOINT AGENTS , HANS-JURGEN RABE , OF THE HAMBURG BAR , PROFESSOR JEAN BOULOUIS , HONORARY DEAN AT THE UNIVERSITE DE DROIT , D ' ECONOMIE ET DE SCIENCES SOCIALES , PARIS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF DOUGLAS FONTEIN , DIRECTOR IN THE DIRECTORATE FOR LEGAL QUESTIONS AT THE EUROPEAN INVESTMENT BANK , 100 BD KONRAD ADENAUER , KIRCHBERG ,

DEFENDANT ,

SUPPORTED BY

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , PETER GILSDORF , ACTING AS AGENT , ASSISTED BY JACQUES DELMOLY , A MEMBER OF THE LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

INTERVENER ,

APPLICATION FOR A DECLARATION THAT CERTAIN PROVISIONS OF COUNCIL REGULATION NO 1293/79 OF 25 JUNE 1979 ( OFFICIAL JOURNAL L 162 , P . 10 , WITH CORRIGENDUM IN OFFICIAL JOURNAL L 176 , P . 37 ) AMENDING COUNCIL REGULATION NO 1111/77 LAYING DOWN COMMON PROVISIONS FOR ISOGLUCOSE ARE VOID ,

1 BY APPLICATION REGISTERED AT THE COURT REGISTRY ON 5 SEPTEMBER 1979 THE APPLICANT , A GERMAN COMPANY MANUFACTURING INTER ALIA ISOGLUCOSE , ASKED THE COURT TO DECLARE COUNCIL REGULATION NO 1111/77 OF 17 MAY 1977 , AS AMENDED BY REGULATION NO 1293/79 OF 25 JUNE 1979 ( OFFICIAL JOURNAL L 162 , P . 10 WITH CORRIGENDUM IN OFFICIAL JOURNAL 1979 L 176 , P . 37 ) TO BE INVALID IN SO FAR AS IT LAYS DOWN IN ANNEX II THERETO A PRODUCTION QUOTA FOR ISOGLUCOSE RELATING TO THE APPLICANT .

2 IN SUPPORT OF ITS APPLICATION , THE APPLICANT , APART FROM VARIOUS SUBSTANTIVE SUBMISSIONS , MAKES A FORMAL SUBMISSION THAT ITS PRODUCTION QUOTA FIXED BY THE SAID REGULATION BE DECLARED VOID ON THE GROUND THAT THE COUNCIL ADOPTED THAT REGULATION WITHOUT HAVING RECEIVED THE OPINION OF THE EUROPEAN PARLIAMENT AS REQUIRED BY ARTICLE 43 ( 2 ) OF THE EEC TREATY WHICH ACTION CONSTITUTES AN INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT WITHIN THE MEANING OF ARTICLE 173 OF THE SAID TREATY .

3 BY ORDER OF 16 JANUARY 1980 THE COURT ALLOWED THE PARLIAMENT TO INTERVENE IN SUPPORT OF THE APPLICANT ' S CLAIMS OF INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS . BY ORDER OF 13 FEBRUARY 1980 IT ALSO ALLOWED THE COMMISSION TO INTERVENE IN SUPPORT OF THE COUNCIL .

4 THE COUNCIL CONTENDED THAT BOTH THE APPLICATION AND THE INTERVENTION BY THE PARLIAMENT IN FAVOUR OF THE APPLICANT WERE INADMISSIBLE . ALTERNATIVELY IT CONTENDED THAT THE APPLICATION SHOULD BE REJECTED AS UNFOUNDED .

5 BEFORE CONSIDERING THE QUESTIONS OF ADMISSIBILITY RAISED BY THE COUNCIL AND THE CLAIM BY THE APPLICANT IT IS WELL TO RECALL BRIEFLY THE HISTORY OF THE ADOPTION OF THE CONTESTED REGULATION AND THE PROVISIONS THEREOF .

6 BY JUDGMENT OF 25 OCTOBER 1978 IN JOINED CASES 103 AND 145/77 ROYAL SCHOLTEN HONIG ( HOLDINGS ) LTD V INTERVENTION BOARD FOR AGRICULTURAL PRODUCE ; TUNNEL REFINERIES LTD V INTERVENTION BOARD FOR AGRICULTURAL PRODUCE ( 1978 ) ECR 2037 THE COURT HELD THAT COUNCIL REGULATION NO 1111/77 OF 17 MAY 1977 LAYING DOWN COMMON PROVISIONS FOR ISOGLUCOSE ( OFFICIAL JOURNAL L 134 , P . 4 ) WAS INVALID TO THE EXTENT TO WHICH ARTICLES 8 AND 9 THEREOF IMPOSED A PRODUCTION LEVY ON ISOGLUCOSE OF 5 UNITS OF ACCOUNT PER 100 KILOGRAMS OF DRY MATTER FOR THE PERIOD CORRESPONDING TO THE SUGAR MARKETING YEAR 1977/78 . THE COURT FOUND THAT THE SYSTEM ESTABLISHED BY THE ABOVE-MENTIONED ARTICLES OFFENDED AGAINST THE GENERAL PRINCIPLE OF EQUALITY ( IN THOSE CASES BETWEEN SUGAR AND ISOGLUCOSE MANUFACTURERS ) OF WHICH THE PROHIBITION ON DISCRIMINATION AS SET OUT IN ARTICLE 40 ( 3 ) OF THE TREATY WAS A SPECIFIC EXPRESSION . THE COURT HOWEVER ADDED THAT ITS JUDGMENT LEFT THE COUNCIL FREE TO TAKE ANY NECESSARY MEASURES COMPATIBLE WITH COMMUNITY LAW FOR ENSURING THE PROPER FUNCTIONING OF THE MARKET IN SWEETENERS .

7 ON 7 MARCH 1979 FOLLOWING THAT JUDGMENT THE COMMISSION SUBMITTED A PROPOSAL FOR AN AMENDMENT OF REGULATION NO 1111/77 TO THE COUNCIL . BY LETTER OF 19 MARCH 1979 RECEIVED BY THE PARLIAMENT ON 22 MARCH THE COUNCIL ASKED THE PARLIAMENT FOR ITS OPINION PURSUANT TO THE THIRD SUBPARAGRAPH OF ARTICLE 43 ( 2 ) OF THE TREATY . IN ITS LETTER SEEKING AN OPINION IT WROTE THAT :

' ' THIS PROPOSAL TAKES ACCOUNT OF THE POSITION AFTER THE JUDGMENT OF THE COURT OF 25 OCTOBER 1978 IN ANTICIPATION OF NEW ARRANGEMENTS FOR SWEETENERS WHICH SHOULD ENTER INTO FORCE ON 1 JULY 1980 . . . . SINCE THE REGULATION IS INTENDED TO APPLY AS FROM 1 JULY 1979 , THE COUNCIL WOULD WELCOME IT IF THE EUROPEAN PARLIAMENT COULD GIVE AN OPINION ON THE PROPOSAL AT ITS APRIL SESSION . ' '

8 THE URGENCY OF THE CONSULTATION REQUESTED IN THE COUNCIL ' S LETTER RELATED TO THE FACT THAT IN ORDER TO AVOID INEQUALITY OF TREATMENT BETWEEN SUGAR MANUFACTURERS AND ISOGLUCOSE MANUFACTURERS THE PROPOSED REGULATION WAS BASICALLY INTENDED TO SUBJECT ISOGLUCOSE PRODUCTION TO RULES SIMILAR TO THOSE APPLYING TO SUGAR MANUFACTURE UNTIL 30 JUNE 1980 PURSUANT TO THE COMMON ORGANIZATION OF THE MARKET IN SUGAR ESTABLISHED BY COUNCIL REGULATION NO 3330/74 OF 19 DECEMBER 1974 ( OFFICIAL JOURNAL L 369 , P . 1 ). IN PARTICULAR IT WAS A QUESTION OF MAKING TRANSITIONAL ARRANGEMENTS UNTIL THEN FOR PRODUCTION QUOTAS FOR ISOGLUCOSE WHICH WERE TO APPLY FROM 1 JULY 1979 WHICH WAS THE BEGINNING OF THE NEW SUGAR MARKETING YEAR .

9 THE PRESIDENT OF THE PARLIAMENT IMMEDIATELY REFERRED THE MATTER TO THE COMMITTEE ON AGRICULTURE FOR FURTHER CONSIDERATION AND TO THE COMMITTEE ON BUDGETS FOR ITS OPINION . THE COMMITTEE ON BUDGETS FORWARDED ITS OPINION TO THE COMMITTEE ON AGRICULTURE ON 10 APRIL 1979 . ON 9 MAY 1979 THE COMMITTEE ON AGRICULTURE ADOPTED THE MOTION FOR A RESOLUTION OF ITS RAPPORTEUR . THE REPORT AND DRAFT RESOLUTION ADOPTED BY THE COMMITTEE ON AGRICULTURE WERE DEBATED BY THE PARLIAMENT AT ITS SESSION ON 10 MAY 1979 . AT ITS SESSION ON 11 MAY THE PARLIAMENT REJECTED THE MOTION FOR A RESOLUTION AND REFERRED IT BACK TO THE COMMITTEE ON AGRICULTURE FOR RECONSIDERATION .

10 THE PARLIAMENTARY SESSION FROM 7 TO 11 MAY 1979 WAS TO BE THE LAST BEFORE THE SITTING OF THE PARLIAMENT ELECTED BY DIRECT UNIVERSAL SUFFRAGE AS PROVIDED FOR BY THE ACT CONCERNING THE ELECTION OF THE REPRESENTATIVES OF THE ASSEMBLY BY DIRECT UNIVERSAL SUFFRAGE AND FIXED FOR 17 JULY 1979 . AT ITS MEETING ON 1 MARCH 1979 THE BUREAU OF THE PARLIAMENT HAD DECIDED NOT TO PROVIDE FOR AN ADDITIONAL SESSION BETWEEN THOSE OF MAY AND JULY . IT HAD HOWEVER STATED :

' ' THE ENLARGED BUREAU . . .

- IS NEVERTHELESS OF THE VIEW THAT IN SO FAR AS THE COUNCIL OR COMMISSION CONSIDER IT NECESSARY TO PROVIDE FOR AN ADDITIONAL SESSION THEY MAY , PURSUANT TO ARTICLE 1 ( 4 ) OF THE RULES OF PROCEDURE , CALL FOR AN EXTRAORDINARY SESSION OF THE PARLIAMENT ; ANY SUCH SESSION WOULD BE FOR THE PURPOSE ONLY OF CONSIDERING REPORTS WHICH HAD BEEN ADOPTED FOLLOWING URGENT CONSULTATION . ' '

AT ITS MEETING ON 10 MAY 1979 THE BUREAU WAS TO CONFIRM ITS POSITION IN THE FOLLOWING WORDS :

- ' ' CONFIRMS THE POSITION ADOPTED AT THE ABOVE-MENTIONED MEETING WHEN IT DECIDED NOT TO PROVIDE FOR AN ADDITIONAL SESSION BETWEEN THE LAST SESSION OF THE PRESENT PARLIAMENT AND THE SESSION OF THE PARLIAMENT ELECTED BY DIRECT UNIVERSAL SUFFRAGE , PROVIDED ALWAYS THAT WHERE THE MAJORITY OF THE EFFECTIVE MEMBERS OF THE PARLIAMENT , THE COUNCIL OR THE COMMISSION DESIRE THE HOLDING OF AN ADDITIONAL SESSION THEY MAY , PURSUANT TO THE PROVISIONS OF ARTICLE 1 ( 4 ) OF THE RULES OF PROCEDURE , ASK FOR THE PARLIAMENT TO BE SUMMONED ;

-DECIDES FURTHER HAVING REGARD TO THE PROVISIONS OF ARTICLE 139 OF THE EEC TREATY THAT WHERE THE PRESIDENT HAS SUCH AN APPLICATION BEFORE HIM THE ENLARGED BUREAU WILL MEET TO CONSIDER HOW IT SHOULD BE DEALT WITH . ' '

11 ON 25 JUNE 1979 THE COUNCIL WITHOUT OBTAINING THE OPINION REQUESTED ADOPTED THE REGULATION PROPOSED BY THE COMMISSION WHICH THUS BECAME REGULATION NO 1293/79 AMENDING REGULATION NO 1111/77 . THE THIRD REFERENCE IN THE PREAMBLE TO REGULATION NO 1293/79 REFERS TO CONSULTATION OF THE PARLIAMENT . THE COUNCIL NEVERTHELESS TOOK ACCOUNT OF THE ABSENCE OF AN OPINION FROM THE PARLIAMENT BY OBSERVING IN THE THIRD RECITAL IN THE PREAMBLE TO THE REGULATION THAT ' ' THE EUROPEAN PARLIAMENT WHICH WAS CONSULTED ON 16 MARCH 1979 ON THE COMMISSION PROPOSAL DID NOT DELIVER ITS OPINION AT ITS MAY PART-SESSION ; WHEREAS IT HAS REFERRED THE MATTER TO THE ASSEMBLY FOR ITS OPINION ' ' .

12 THE COURT IS ASKED TO DECLARE REGULATION NO 1293/79 VOID IN SO FAR AS IT AMENDS REGULATION NO 1111/77 .

ADMISSIBILITY OF THE APPLICATION

13 IN THE COUNCIL ' S VIEW THE APPLICATION IS INADMISSIBLE FOR IT IS DIRECTED AGAINST A REGULATION AND THE CONDITIONS PROVIDED FOR IN THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY ARE NOT SATISFIED . THE CONTESTED MEASURE IS CLAIMED NOT TO CONSTITUTE A DECISION IN THE FORM OF A REGULATION AND NOT TO BE OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANT . THE APPLICANT MAINTAINS ON THE OTHER HAND THAT THE CONTESTED REGULATION IS A SET OF INDIVIDUAL DECISIONS ONE OF WHICH IS TAKEN IN RESPECT OF THE APPLICANT AND IS OF DIRECT AND INDIVIDUAL CONCERN TO IT .

14 ARTICLE 9 ( 1 ), ( 2 ) AND ( 3 ) OF REGULATION NO 1111/77 AS AMENDED BY ARTICLE 3 OF REGULATION NO 1293/79 PROVIDES :

' ' 1 . A BASIC QUOTA SHALL BE ALLOTTED TO EACH ISOGLUCOSE-PRODUCING UNDERTAKING ESTABLISHED IN THE COMMUNITY , FOR THE PERIOD REFERRED TO IN ARTICLE 8 ( 1 ).

WITHOUT PREJUDICE TO IMPLEMENTATION OF PARAGRAPH ( 3 ), THE BASIC QUOTA OF EACH SUCH UNDERTAKING SHALL BE EQUAL TO TWICE ITS PRODUCTION AS DETERMINED , UNDER THIS REGULATION , DURING THE PERIOD 1 NOVEMBER 1978 TO 30 APRIL 1979 .

2 . TO EACH UNDERTAKING HAVING A BASIC QUOTA , THERE SHALL ALSO BE ALLOTTED A MAXIMUM QUOTA EQUAL TO ITS BASIC QUOTA MULTIPLIED BY A COEFFICIENT . THIS COEFFICIENT SHALL BE THAT FIXED BY VIRTUE OF THE SECOND SUBPARAGRAPH OF ARTICLE 25 ( 2 ) OF REGULATION ( EEC ) NO 3330/74 FOR THE PERIOD 1 JULY 1979 TO 30 JUNE 1980 .

3 . THE BASIC QUOTA REFERRED TO IN PARAGRAPH ( 1 ) SHALL , IF NECESSARY , BE CORRECTED SO THAT THE MAXIMUM QUOTA DETERMINED IN ACCORDANCE WITH PARA- GRAPH ( 2 ):

- DOES NOT EXCEED 85% ,

- IS NOT LESS THAN 65%

OF THE TECHNICAL PRODUCTION CAPACITY PER ANNUM OF THE UNDERTAKING IN QUESTION . ' '

15 ARTICLE 9 ( 4 ) PROVIDES THAT THE BASIC QUOTAS ESTABLISHED PURSUANT TO PARAGRAPHS ( 1 ) AND ( 3 ) ARE FIXED FOR EACH UNDERTAKING AS SET OUT IN ANNEX II . THAT ANNEX , WHICH IS AN INTEGRAL PART OF ARTICLE 9 , PROVIDES THAT THE APPLICANT ' S BASIC QUOTA IS 28 000 TONNES .

16 IT FOLLOWS THAT ARTICLE 9 ( 4 ) OF REGULATION NO 1111/77 ( AS AMENDED BY ARTICLE 3 OF REGULATION NO 1293/79 ) IN CONJUNCTION WITH ANNEX II , ITSELF APPLIES THE CRITERIA LAID DOWN IN ARTICLE 9 ( 1 ) TO ( 3 ) TO EACH OF THE UNDERTAKINGS IN QUESTION WHO ARE THE ADDRESSEES AND THUS DIRECTLY AND INDIVIDUALLY CONCERNED . REGULATION NO 1293/79 THEREFORE IS A MEASURE AGAINST WHICH THE UNDERTAKINGS CONCERNED MANUFACTURING ISOGLUCOSE MAY BRING PROCEEDINGS FOR A DECLARATION THAT IT IS VOID PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY .

ADMISSIBILITY OF THE PARLIAMENT ' S INTERVENTION

17 THE COUNCIL QUERIES THE POSSIBILITY OF THE PARLIAMENT ' S INTERVENING VOLUNTARILY IN THE PROCEEDINGS PENDING BEFORE THE COURT . IN THE COUNCIL ' S VIEW A POWER TO INTERVENE OF THIS KIND IS TO BE EQUATED WITH A RIGHT OF ACTION WHICH THE PARLIAMENT DOES NOT HAVE UNDER THE TREATY . IN THAT RESPECT IT OBSERVES THAT ARTICLE 173 OF THE TREATY DOES NOT MENTION THE PARLIAMENT AMONG THE INSTITUTIONS ENTITLED TO SEEK A DECLARATION THAT A MEASURE IS VOID AND THAT ARTICLE 20 OF THE STATUTE OF THE COURT DOES NOT MENTION IT AMONG THE INSTITUTIONS INVITED TO LODGE OBSERVATIONS PURSUANT TO THE PROCEDURE UNDER ARTICLE 177 FOR A PRELIMINARY RULING .

18 ARTICLE 37 OF THE STATUTE OF THE COURT PROVIDES :

' ' MEMBER STATES AND INSTITUTIONS OF THE COMMUNITY MAY INTERVENE IN CASES BEFORE THE COURT .

THE SAME RIGHT SHALL BE OPEN TO ANY OTHER PERSON ESTABLISHING AN INTEREST IN THE RESULT OF ANY CASE SUBMITTED TO THE COURT , SAVE IN CASES BETWEEN MEMBER STATES , BETWEEN INSTITUTIONS OF THE COMMUNITY OR BETWEEN MEMBER STATES AND INSTITUTIONS OF THE COMMUNITY .

SUBMISSIONS MADE IN AN APPLICATION TO INTERVENE SHALL BE LIMITED TO SUPPORTING THE SUBMISSIONS OF ONE OF THE PARTIES . ' '

19 THE FIRST PARAGRAPH OF THAT ARTICLE PROVIDES THAT ALL THE INSTITUTIONS OF THE COMMUNITY HAVE THE RIGHT TO INTERVENE . IT IS NOT POSSIBLE TO RESTRICT THE EXERCISE OF THAT RIGHT BY ONE OF THEM WITHOUT ADVERSELY AFFECTING ITS INSTITUTIONAL POSITION AS INTENDED BY THE TREATY AND IN PARTICULAR ARTICLE 4 ( 1 ).

20 ALTERNATIVELY THE COUNCIL ALLEGES THAT EVEN IF THE PARLIAMENT ' S RIGHT TO INTERVENE HAD TO BE ACCEPTED SUCH RIGHT WOULD DEPEND UPON THE EXISTENCE OF A LEGAL INTEREST . SUCH AN INTEREST MAY NO DOUBT BE PRESUMED BUT IT DOES NOT PREVENT THE COURT FROM CHECKING , IF NECESSARY , THAT IT EXISTS . IN THE PRESENT CASE , IN THE COUNCIL ' S VIEW , IF THE COURT WERE TO CONSIDER THE MATTER IT WOULD BE LED TO FIND THAT THE PARLIAMENT HAD NO INTEREST IN THE OUTCOME OF THE PROCEEDINGS .

21 THAT SUBMISSION MUST BE REJECTED AS INCOMPATIBLE WITH ARTICLE 37 OF THE STATUTE OF THE COURT . ALTHOUGH THE SECOND PARAGRAPH OF ARTICLE 37 OF THE STATUTE OF THE COURT PROVIDES THAT PERSONS OTHER THAN STATES AND THE INSTITUTIONS MAY INTERVENE IN CASES BEFORE THE COURT ONLY IF THEY ESTABLISH AN INTEREST IN THE RESULT , THE RIGHT TO INTERVENE WHICH INSTITUTIONS , AND THUS THE PARLIAMENT , HAVE UNDER THE FIRST PARAGRAPH OF ARTICLE 37 IS NOT SUBJECT TO THAT CONDITION .

BREACH OF THE PRINCIPLES OF THE RIGHT OF COMPETITION

22 IN THE APPLICANT ' S VIEW ARTICLE 42 OF THE TREATY ACCORDING TO WHICH IT IS FOR THE COUNCIL TO DETERMINE HOW FAR THE RULES ON COMPETITION SHALL APPLY TO AGRICULTURE DOES NOT EMPOWER THE COUNCIL TO RESTRICT MORE THAN NECESSARY FREE COMPETITION WHICH IS ONE OF THE FUNDAMENTAL OBJECTIVES OF THE TREATY REFERRED TO IN ARTICLE 3 ( F ). THE MEASURES HOWEVER ADOPTED BY THE COUNCIL IN RELATION TO ISOGLUCOSE GO BEYOND WHAT IS NECESSARY .

23 THE INSTITUTION OF A SYSTEM OF COMPETITION WHICH IS NOT DISTORTED IS NOT THE ONLY OBJECTIVE REFERRED TO IN ARTICLE 3 OF THE TREATY WHICH ALSO PROVIDES IN PARTICULAR FOR THE ADOPTION OF A COMMON AGRICULTURAL POLICY . THOSE RESPONSIBLE FOR THE TREATY , CONSCIOUS THAT THE SIMULTANEOUS PURSUIT OF THOSE TWO OBJECTIVES COULD SOMETIMES AND IN CERTAIN CIRCUMSTANCES PROVE DIFFICULT , PROVIDED IN THE FIRST PARAGRAPH OF ARTICLE 32 THAT :

' ' THE PROVISIONS OF THE CHAPTER RELATING TO RULES ON COMPETITION SHALL APPLY TO PRODUCTION OF AND TRADE IN AGRICULTURAL PRODUCTS ONLY TO THE EXTENT DETERMINED BY THE COUNCIL WITHIN THE FRAMEWORK OF ARTICLE 43 ( 2 ) AND ( 3 ) AND IN ACCORDANCE WITH THE PROCEDURE LAID DOWN THEREIN , ACCOUNT BEING TAKEN OF THE OBJECTIVES SET OUT IN ARTICLE 39 . ' '

THAT SIMULTANEOUSLY RECOGNIZES THE PRECEDENCE THE AGRICULTURAL POLICY HAS OVER THE AIMS OF THE TREATY IN RELATION TO COMPETITION AND THE POWER OF THE COUNCIL TO DECIDE HOW FAR THE RULES ON COMPETITION SHOULD APPLY TO THE AGRICULTURAL SECTOR . THE COUNCIL HAS A WIDE DISCRETION IN THE EXERCISE OF THAT POWER AS IT HAS IN THE IMPLEMENTATION OF THE WHOLE AGRICULTURAL POLICY .

24 AS CONSIDERATION OF THE CONTESTED MEASURES SHOWS , THE EFFECTS WHICH THEY MAY PERHAPS HAVE ON COMPETITION ARE THE UNAVOIDABLE CONSEQUENCE OF THE LEGITIMATE DESIRE OF THE COUNCIL TO LIMIT ISOGLUCOSE PRODUCTION . THE MEASURES MOREOVER PERMIT SOME COMPETITION TO CONTINUE IN RESPECT OF PRICE , TERMS OF SALE AND THE QUALITY OF ISOGLUCOSE . THE COUNCIL HAS THEREFORE NOT EXCEEDED ITS DISCRETION .

BREACH OF THE PRINCIPLE OF PROPORTIONALITY

25 THE APPLICANT MAINTAINS THAT IN ESTABLISHING A SYSTEM OF QUOTAS FOR ISOGLUCOSE THE COUNCIL CHOSE THE MOST RESTRICTIVE MEANS OF ACTION WHICH MEANT THAT THE APPLICANT COULD NOT RATIONALLY EXPLOIT ITS PRODUCTION CAPACITY . ON THE OTHER HAND NO MEASURE HAS BEEN TAKEN AGAINST THE SUGAR INDUSTRY . THE BURDENS THUS UNILATERALLY PLACED ON THE ISOGLUCOSE INDUSTRY BREACH THE PRINCIPLE OF PROPORTIONALITY .

26 IN THE FIRST PLACE THE APPLICANT CANNOT CLAIM THAT THE COUNCIL HAS MADE THE RATIONAL USE OF THE APPLICANT ' S PRODUCTION CAPACITY IMPOSSIBLE WHEN ITS ACTUAL PRODUCTION HAS NOT EVEN ATTAINED THE MAXIMUM QUOTA ALLOWED IT . FURTHER , HERE TOO THE REAL PROBLEM IS WHETHER IN ADOPTING THE MEASURES WHICH IT TOOK THE COUNCIL EXCEEDED THE LIMITS OF THE DISCRETION WHICH IT HAS . THAT IS NOT SO AS APPEARS FROM THE PREVIOUS CONSIDERATIONS . IT MUST MOREOVER BE STRESSED IN THAT RESPECT THAT IT IS NOT CORRECT TO SAY , AS DOES THE APPLICANT , THAT NO RESTRICTIVE MEASURE HAS BEEN TAKEN WITH REGARD TO THE SUGAR INDUSTRY AND IN ANY EVENT THE POSSIBILITIES FOR ACTION WITH REGARD TO THAT INDUSTRY ARE LIMITED BY THE NEED FOR THE COUNCIL TO ENSURE A FAIR STANDARD OF LIVING FOR THE AGRICULTURAL COMMUNITY WHICH IS ONE OF THE OBJECTIVES REFERRED TO IN ARTICLE 39 ( 1 ) ( B ) OF THE TREATY .

ALLEGED DISCRIMINATION AGAINST ISOGLUCOSE MANUFACTURERS VIS-A-VIS SUGAR MANUFACTURERS

27 THE APPLICANT COMPLAINS OF DISCRIMINATION AGAINST ISOGLUCOSE MANUFACTURERS . ALTHOUGH ISOGLUCOSE MANUFACTURERS AND SUGAR MANUFACTURERS ARE IN A COMPARABLE SITUATION ISOGLUCOSE MANUFACTURERS ARE SUBJECT TO A DIFFERENT QUOTA SYSTEM . THE QUOTA SYSTEM APPLIED TO ISOGLUCOSE TAKES ACCOUNT NEITHER OF THE NEED TO MAINTAIN FREE COMPETITION NOR THE FACT THAT SUGAR AND ISOGLUCOSE ARE AT DIFFERENT STAGES OF DEVELOPMENT . THE QUOTAS ARE CALCULATED ON THE BASIS OF REFERENCE PERIODS WHICH DO NOT CORRESPOND WITH THOSE APPLYING TO SUGAR AND THE WHOLE SYSTEM LACKS THE FLEXIBILITY WHICH CHARACTERIZES THE SYSTEM FOR SUGAR . FINALLY THE ISOGLUCOSE INDUSTRY DOES NOT ENJOY THE GUARANTEES OF AN ORGANIZATION OF THE MARKET .

28 THE ARGUMENTS IN RELATION TO COMPETITION AND THE DIFFERENT STAGES OF DEVELOPMENT OF THE TWO INDUSTRIES ARE MERELY A REPETITION OF THE ARGUMENTS WHICH HAVE ALREADY BEEN ANSWERED WHEN A BREACH OF THE PRINCIPLES OF THE RIGHT OF COMPETITION WAS ALLEGED . THE REASON FOR THE OTHER DIFFERENCES POINTED OUT BY THE APPLICANT IS TO BE FOUND IN THE OBJECTIVE DIFFERENCES BETWEEN THE SITUATIONS OF THE SUGAR AND ISOGLUCOSE INDUSTRIES WHICH THE COUNCIL HAS TAKEN INTO ACCOUNT IN EXERCISING ITS DISCRETION . THAT SUBMISSION MUST THEREFORE BE REJECTED AS UNFOUNDED .

DISCRIMINATION AS BETWEEN ISOGLUCOSE MANUFACTURERS

29 THE APPLICANT COMPLAINS THAT WHEN ALLOCATING THE QUOTAS BETWEEN THE VARIOUS ISOGLUCOSE MANUFACTURERS THE COUNCIL DID NOT TAKE ACCOUNT OF THE FACT THAT CERTAIN UNDERTAKINGS VOLUNTARILY RESTRICTED THEIR INVESTMENT IN ANTICIPATION OF THE REGULATION WHICH , AFTER THE AFOREMENTIONED JUDGMENT OF THE COURT OF 25 OCTOBER 1978 , WAS TO ALTER THE SYSTEM FOR ISOGLUCOSE .

30 AFTER THE JUDGMENT OF 25 OCTOBER 1978 THE FUTURE MARKET PROSPECTS FOR ISOGLUCOSE WERE THE SAME FOR ALL THE ISOGLUCOSE-MANUFACTURING UNDERTAKINGS IN THE COMMUNITY . FACED WITH THAT PROBLEM THEY REACTED DIFFERENTLY BUT THE COUNCIL IS NOT TO BLAME FOR FAILING TO TAKE INTO ACCOUNT THE COMMERCIAL CHOICES AND INTERNAL POLICY OF EACH PARTICULAR UNDERTAKING WHEN IT ADOPTS MEASURES OF GENERAL INTEREST TO PREVENT THE UNCONTROLLED ISOGLUCOSE PRODUCTION FROM JEOPARDIZING THE SUGAR POLICY OF THE COMMUNITY .

ERROR IN CALCULATING THE APPLICANT ' S QUOTA

31 THE APPLICANT ALLEGED DURING THE ORAL PROCEDURE THAT THE MAXIMUM QUOTA FIXED FOR IT WAS CALCULATED ON THE BASIS OF THE CAPACITY WHICH IT REPORTED TAKING INTO ACCOUNT UNAVOIDABLE INTERRUPTION OF WORK WHEREAS ACCORDING TO THE COUNCIL ' S REPLY THE CAPACITY TAKEN INTO ACCOUNT IN CALCULATING THE MAXIMUM QUOTAS WAS A GROSS CAPACITY WITHOUT DEDUCTION FOR LOSSES DUE TO INTERRUPTION OF WORK . IN CONSEQUENCE THE QUOTA ALLOTTED TO THE APPLICANT IS BASED ON AN ARITHMETICAL ERROR AND ANNEX II OUGHT TO BE CORRECTED AT LEAST TO THAT EXTENT .

32 SINCE THAT SUBMISSION WAS NOT MADE UNTIL LATE IN THE PROCEEDINGS THE COURT HAS NO INFORMATION BEFORE IT UPON WHICH TO DECIDE WHETHER THERE WAS SUCH AN ERROR . THAT IS MOREOVER NOT NECESSARY FOR A DECISION IN THE CASE HAVING REGARD TO THE INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS WHICH IS FOUND BELOW . IT IS FOR THE COUNCIL TO DRAW THE CONSEQUENCES OF SUCH ERROR IF IT IS ESTABLISHED .

INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS

33 THE APPLICANT AND THE PARLIAMENT IN ITS INTERVENTION MAINTAIN THAT SINCE REGULATION NO 1111/77 AS AMENDED WAS ADOPTED BY THE COUNCIL WITHOUT REGARD TO THE CONSULTATION PROCEDURE PROVIDED FOR IN THE SECOND PARAGRAPH OF ARTICLE 43 OF THE TREATY IT MUST BE TREATED AS VOID FOR INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS .

34 THE CONSULTATION PROVIDED FOR IN THE THIRD SUBPARAGRAPH OF ARTICLE 43 ( 2 ), AS IN OTHER SIMILAR PROVISIONS OF THE TREATY , IS THE MEANS WHICH ALLOWS THE PARLIAMENT TO PLAY AN ACTUAL PART IN THE LEGISLATIVE PROCESS OF THE COMMUNITY . SUCH POWER REPRESENTS AN ESSENTIAL FACTOR IN THE INSTITUTIONAL BALANCE INTENDED BY THE TREATY . ALTHOUGH LIMITED , IT REFLECTS AT COMMUNITY LEVEL THE FUNDAMENTAL DEMOCRATIC PRINCIPLE THAT THE PEOPLES SHOULD TAKE PART IN THE EXERCISE OF POWER THROUGH THE INTERMEDIARY OF A REPRESENTATIVE ASSEMBLY . DUE CONSULTATION OF THE PARLIAMENT IN THE CASES PROVIDED FOR BY THE TREATY THEREFORE CONSTITUTES AN ESSENTIAL FORMALITY DISREGARD OF WHICH MEANS THAT THE MEASURE CONCERNED IS VOID .

35 IN THAT RESPECT IT IS PERTINTENT TO POINT OUT THAT OBSERVANCE OF THAT REQUIREMENT IMPLIES THAT THE PARLIAMENT HAS EXPRESSED ITS OPINION . IT IS IMPOSSIBLE TO TAKE THE VIEW THAT THE REQUIREMENT IS SATISFIED BY THE COUNCIL ' S SIMPLY ASKING FOR THE OPINION . THE COUNCIL IS , THEREFORE , WRONG TO INCLUDE IN THE REFERENCE IN THE PREAMBLE TO REGULATION NO 1293/79 A STATEMENT TO THE EFFECT THAT THE PARLIAMENT HAS BEEN CONSULTED .

36 THE COUNCIL HAS NOT DENIED THAT CONSULTATION OF THE PARLIAMENT WAS IN THE NATURE OF AN ESSENTIAL PROCEDURAL REQUIREMENT . IT MAINTAINS HOWEVER THAT IN THE CIRCUMSTANCES OF THE PRESENT CASE THE PARLIAMENT , BY ITS OWN CONDUCT , MADE OBSERVANCE OF THAT REQUIREMENT IMPOSSIBLE AND THAT IT IS THEREFORE NOT PROPER TO RELY ON THE INFRINGEMENT THEREOF .

37 WITHOUT PREJUDICE TO THE QUESTIONS OF PRINCIPLE RAISED BY THAT ARGUMENT OF THE COUNCIL IT SUFFICES TO OBSERVE THAT IN THE PRESENT CASE ON 25 JUNE 1979 WHEN THE COUNCIL ADOPTED REGULATION NO 1293/79 AMENDING REGULATION NO 1111/77 WITHOUT THE OPINION OF THE ASSEMBLY THE COUNCIL HAD NOT EXHAUSTED ALL THE POSSIBILITIES OF OBTAINING THE PRELIMINARY OPINION OF THE PARLIAMENT . IN THE FIRST PLACE THE COUNCIL DID NOT REQUEST THE APPLICATION OF THE EMERGENCY PROCEDURE PROVIDED FOR BY THE INTERNAL REGULATION OF THE PARLIAMENT ALTHOUGH IN OTHER SECTORS AND AS REGARDS OTHER DRAFT REGULATIONS IT AVAILED ITSELF OF THAT POWER AT THE SAME TIME . FURTHER THE COUNCIL COULD HAVE MADE USE OF THE POSSIBILITY IT HAD UNDER ARTICLE 139 OF THE TREATY TO ASK FOR AN EXTRAORDINARY SESSION OF THE ASSEMBLY ESPECIALLY AS THE BUREAU OF THE PARLIAMENT ON 1 MARCH AND 10 MAY 1979 DREW ITS ATTENTION TO THAT POSSIBILITY .

38 IT FOLLOWS THAT IN THE ABSENCE OF THE OPINION OF THE PARLIAMENT REQUIRED BY ARTICLE 43 OF THE TREATY REGULATION NO 1293/79 AMENDING COUNCIL REGULATION NO 1111/77 MUST BE DECLARED VOID WITHOUT PREJUDICE TO THE COUNCIL ' S POWER FOLLOWING THE PRESENT JUDGMENT TO TAKE ALL APPROPRIATE MEASURES PURSUANT TO THE FIRST PARAGRAPH OF ARTICLE 176 OF THE TREATY .

39 PURSUANT TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE PLEADINGS .

40 THE COUNCIL HAS BEEN UNSUCCESSFUL AND THE APPLICANT , ALBEIT NOT THE PARLIAMENT , HAS ASKED FOR AN ORDER FOR COSTS . IT FOLLOWS THAT THE COUNCIL MUST BE ORDERED TO PAY ONLY THE COSTS OF THE APPLICANT .

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DECLARES REGULATION NO 1293/79 ( OFFICIAL JOURNAL L 162 , P . 10 WITH CORRIGENDUM IN OFFICIAL JOURNAL L 176 , P . 37 ) AMENDING REGULATION NO 1111/77 ( OFFICIAL JOURNAL L 134 , P . 4 ) TO BE VOID .

2 . ORDERS THE COUNCIL TO PAY THE COSTS OF THE APPLICANT .

3 . ORDERS THE PARLIAMENT TO BEAR ITS OWN COSTS .