61987O0167

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Procedure - Costs - No need for a decision of the Court

( Rules of Procedure, Art . 69(5 ) )

In Case 167/87

Organización de Productores Asociados de Grandes Atuneros Congeladores de España ( Opagac ) and its member undertakings, whose registered office is in Madrid, represented by Gaspar Ariño Ortiz, of the Madrid Bar, with an address for service in Luxembourg at the Chambers of Elvinger & Hoss, 15 Côte d' Eich,

applicant,

v

Commission of the European Communities, represented by its Legal Advisers Robert Caspar Fischer and Francisco José Santaolalla, acting as Agents, with an address for service in Luxembourg at the office of G . Kremlis, Centre Wagner, Kirchberg,

defendant,

APPLICATION for the annulment of Commission Regulation ( EEC ) No 712/87 of 12 March 1987 determining the maximum amount of the compensation for tuna supplied to the canning industry for the period 1 March to 31 May 1986;

In Case 168/87

Organización de Productores de Túnidos Congelados ( Optuc ), whose registered office is at Bermeo, represented by Luis Maria Angulo Errazquin, of the Vizcaya Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 4 avenue Marie-Thérèse,

applicant,

v

Commission of the European Communities, represented by its Legal Advisers Robert Caspar Fischer and Francisco José Santaolalla, acting as Agents, with an address for service in Luxembourg at the office of G . Kremlis, Centre Wagner, Kirchberg,

defendant,

APPLICATION for the annulment of Commission Regulation ( EEC ) No 712/87 of 12 March 1987 determining the maximum amount of the compensation for tuna supplied to the canning industry for the period 1 March to 31 May 1986;

In Case 28/88

Organización de Productores Asociados de Grandes Atuneros Congeladores de España ( Opagac ) and its member undertakings, represented by Gaspar Ariño Ortiz, of the Madrid Bar, with an address for service in Luxembourg at the Chambers of Elvinger & Hoss, 15 Côte d' Eich,

applicant,

v

Commission of the European Communities, represented by its Legal Advisers Robert Caspar Fischer and Francisco José Santaolalla, acting as Agents, with an address for service in Luxembourg at the office of G . Kremlis, Centre Wagner, Kirchberg,

defendant,

APPLICATION for the annulment of Commission Regulation ( EEC ) No 3307/87 of 3 November 1987 determining the maximum amount of the compensation for tuna supplied to the canning industry for the period 1 June to 31 August 1986;

and in Case 123/88

Organización de Productores Asociados de Grandes Atuneros Congeladores de España ( Opagac ) and its member undertakings, whose registered office is in Madrid, represented by Gaspar Ariño Ortiz, of the Madrid Bar, with an address for service in Luxembourg at the Chambers of Elvinger & Hoss, 15 Côte d' Eich,

applicant,

v

Commission of the European Communities, represented by its Legal Advisers Robert Caspar Fischer and Francisco José Santaolalla, acting as Agents, with an address for service in Luxembourg at the office of G . Kremlis, Centre Wagner, Kirchberg,

defendant,

APPLICATION for the annulment of Commission Regulation ( EEC ) No 228/88 of 27 January 1988 determining the maximum amount of the compensation for tuna supplied to the canning industry for the period 1 September to 31 December 1986,

THE COURT

composed of : O . Due, President, T . Koopmans, R . Joliet, T . F . O' Higgins and F . Grévisse ( Presidents of Chambers ), Sir Gordon Slynn, G . F . Mancini, C . Kakouris, F . Schockweiler, J . C . Moitinho de Almeida, G . C . Rodríguez Iglesias, M . Diez de Velasco and M . Zuleeg, Judges,

Advocate General : C . O . Lenz

Registrar : J.-G . Giraud

after hearing the views of the Advocate General,

makes the following

Order

1 By two applications lodged at the Court Registry on 5 June 1987, the Organización de Productores de Túnidos Congelados (" Optuc ") and the Organización de Productores Asociados de Grandes Atuneros Congeladores (" Opagac "), together with its eight member undertakings, brought an action under the second paragraph of Article 173 of the EEC Treaty for the annulment of Commission Regulation No 712/87 of 12 March 1987 determining the maximum amount of the compensation for tuna supplied to the canning industry for the period 1 March to 31 May 1986 ( Official Journal 1987, L 70, p . 19 ). Subsequently, by two applications lodged at the Court Registry on 26 January 1988 and 21 April 1988 Opagac and its eight member undertakings brought two actions under the second paragraph of Article 173 of the EEC Treaty for the annulment of Commission Regulation No 3307/87 of 3 November 1987 determining the maximum amount of the compensation for tuna supplied to the canning industry for the period 1 June to 31 August 1986 ( Official Journal 1987, L 313, p . 14 ) and of Commission Regulation No 228/88 of 27 January 1988 determining the maximum amount of the compensation for tuna supplied to the canning industry for the period 1 September to 31 December 1986 ( Official Journal 1988, L 23, p . 11 ).

2 The applications in Cases 167/87, 168/87, 28/88 and 123/88 have the same aim and are so closely related that they may be dealt with in a single order of the Court .

3 Pursuant to Article 7 of Council Regulation No 1196/76 of 17 May 1976 laying down general rules for the granting of compensation to producers of tunny for the canning industry ( Official Journal 1976, L 133, p . 1 ) the Commission is to adopt, in accordance with the Management Committee procedure, detailed rules for the application of the regulation and the maximum amount of the compensation . The detailed implementing rules were laid down by Commission Regulation No 2469/86 of 31 July 1986 ( Official Journal 1986, L 211, p . 19 ). On the basis of those provisions the Commission determined the maximum amount of the compensation in a number of regulations, including the regulations challenged by the applicants .

4 In its judgment of 24 February 1988 in Case 264/86 French Republic v Commission (( 1988 )) ECR 973 the Court annulled Article 2(3 ) of Regulation No 2469/86 . The Commission considered that it was therefore necessary to redetermine the maximum amount of the compensation for the 1986 marketing year, and accordingly on 11 August 1988 it adopted Regulation No 2551/88 ( Official Journal 1988, L 228, p . 15 ). Article 1 of Regulation No 2551/88 lays down the maximum amount of the compensation payable during four consecutive quarters, while Article 2 repeals Regulations Nos 712/87, 3307/87 and 228/88 .

5 By observations lodged at the Court Registry on 17 October 1988 the applicants informed the Court that they had obtained satisfaction by virtue of the adoption of Regulation No 2551/88 . They requested the Court to make an order declaring that there was no need to give a decision on the four cases . By letter of 24 October 1988 the Commission consented to an order in those terms .

6 In those circumstances, it should be declared that there is no need to give a decision in Cases 167/87, 168/87, 28/88 and 123/88 .

Costs

7 The Commission contends that the Court should order the applicants to pay the costs . It takes the view that the applications are inadmissible, first, because the Court has consistently held that a producers' organization has no locus standi to challenge an act affecting the general interests of its members and, secondly, because the act in question is a legislative act of general application . Since the applications are inadmissible the applicants must be ordered to pay the costs .

8 The applicants, on the other hand, claim that the Court should order the Commission to pay the costs . They take the view that the Commission' s attitude obliged them to bring a series of actions which became devoid of purpose as a result of the behaviour of the defendant . With regard to the issue of admissibility, the applicants claim that the contested regulations, governing situations which no longer obtain, are in fact decisions affecting a limited number of undertakings, and the applications are therefore admissible .

9 In the face of those arguments it should be recalled that under Article 69(5 ) of the Rules of Procedure, where a case does not proceed to judgment costs are in the discretion of the Court .

10 In these cases it must be accepted that it was the behaviour of the Commission which deprived the applications of their purpose, since the regulation which it adopted, Regulation No 2551/88, takes account of the claims made by the applicants in their applications . However, it must also be observed that there are serious doubts as to the admissibility of the four applications . That being so, the parties must bear their own costs .

On those grounds,

THE COURT

hereby orders as follows :

( 1 ) There is no need to give a decision on the applications;

( 2 ) The parties shall bear their own costs .

Luxembourg, 18 January 1989 .