61976J0101

MEASURES ADOPTED BY AN INSTITUTION - REGULATION - CONCEPT

A REGULATION IS A MEASURE WHICH APPLIES TO OBJECTIVELY DETERMINED SITUATIONS AND PRODUCES LEGAL EFFECTS WITH REGARD TO CATEGORIES OF PERSONS REGARDED GENERALLY AND IN THE ABSTRACT .

THE NATURE OF A MEASURE AS A REGULATION IS NOT CALLED IN QUESTION BY THE POSSIBILITY OF DETERMINING MORE OR LESS PRECISELY THE NUMBER OR EVEN THE IDENTITY OF THE PERSONS TO WHOM IT APPLIES AT A GIVEN MOMENT AS LONG AS IT IS ESTABLISHED THAT IT IS APPLIED BY VIRTUE OF AN OBJECTIVE LEGAL OR FACTUAL SITUATION DEFINED BY THE MEASURE IN RELATION TO THE OBJECTIVE OF THE LATTER .

THE FACT THAT A LEGAL PROVISION MAY HAVE DIFFERENT ACTUAL EFFECTS FOR THE VARIOUS PERSONS TO WHOM IT APPLIES IS NOT INCONSISTENT WITH ITS NATURE AS A REGULATION WHEN THAT SITUATION IS OBJECTIVELY DEFINED .

IN CASE 101/76

KONINKLIJKE SCHOLTEN HONIG N.V . AND ITS SUBSIDIARIES , AAN DE KABELWEG , AMSTERDAM , REPRESENTED AND ASSISTED BY P . C . VAN DEN HOEK AND D . J . GIJLSTRA OF THE AMSTERDAM BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J . C . WOLTER , 2 , RUE GOETHE ,

APPLICANT ,

V COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY DANIEL VIGNES , DIRECTOR IN ITS LEGAL DEPARTMENT , AND ASSISTED BY ITS LEGAL ADVISER , GIJSBERTUS PEETERS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF J . N . VAN DEN HOUTTEN , DIRECTOR OF THE LEGAL DEPARTMENT OF THE EUROPEAN INVESTMENT BANK , 2 , PLACE DE METZ ,

DEFENDANT ,

AND

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , J . H . J . BOURGEOIS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF M . CERVINO , LEGAL ADVISER , BATIMENT JEAN MONNET , KIRCHBERG ,

DEFENDANT ,

APPLICATION AT THE PRESENT STAGE OF THE PROCEEDINGS CONCERNING THE ADMISSIBILITY OF AN APPLICATION FOR THE ANNULMENT OF ARTICLE 2 OF COUNCIL REGULATION ( EEC ) NO 1862/76 OF 27 JULY 1976 ( OJ 1976 , L 206 , P . 3 ) AMENDING REGULATION ( EEC ) NO 2742/75 ON PRODUCTION REFUNDS IN THE CEREALS AND RICE SECTORS ( OJ 1975 , L 281 , P . 57 ) AND COMMISSION REGULATION ( EEC ) NO 2158/76 OF 31 AUGUST 1976 LAYING DOWN RULES FOR THE APPLICATION OF THE COUNCIL REGULATION ( OJ 1976 , L 241 , P . 21 ),

1 THE APPLICATION , WHICH WAS ENTERED IN THE COURT REGISTER ON 20 OCTOBER 1976 , SEEKS THE ANNULMENT OF ARTICLE 2 OF COUNCIL REGULATION ( EEC ) NO 1862/76 OF 27 JULY 1976 AMENDING REGULATION ( EEC ) NO 2742/75 ON PRODUCTION REFUNDS IN THE CEREALS AND RICE SECTORS ( OJ 1976 , L 206 , P . 3 ) AND COMMISSION REGULATION ( EEC ) NO 2158/76 OF 31 AUGUST 1976 LAYING DOWN RULES FOR THE APPLICATION OF THE COUNCIL REGULATION ( OJ 1976 , L 241 , P . 21 ).

2 THE COUNCIL TAKES THE VIEW THAT THE APPLICATION IS INADMISSIBLE IN SO FAR AS IT IS DIRECTED AGAINST REGULATION NO 1862/76 , BECAUSE IT IS BROUGHT AGAINST A MEASURE OF GENERAL APPLICATION WHICH DOES NOT CONCERN THE APPLICANT DIRECTLY AND INDIVIDUALLY , AND RAISES THIS OBJECTION BEFORE ANY DISCUSSION OF THE SUBSTANCE OF THE CASE .

3 THE COMMISSION CONSIDERS THAT THE QUESTION OF THE ADMISSIBILITY OF THE APPLICATION ARISES IN IDENTICAL TERMS WITH REGARD TO REGULATION NO 1862/76 AND REGULATION NO 2158/76 SINCE THESE TWO REGULATIONS ARE BOTH IN THE NATURE OF A LEGISLATIVE PROVISION OF THE TYPE REFERRED TO IN THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY .

4 FOR THE PURPOSES OF ITS DEFENCE IT EXPRESSLY ADOPTS THE SUBMISSIONS PUT FORWARD IN THE COUNCIL ' S DEFENCE .

5 ARTICLE 173 OF THE EEC TREATY EMPOWERS A NATURAL OR LEGAL PERSON TO CONTEST A DECISION ADDRESSED TO THAT PERSON OR A DECISION WHICH , ALTHOUGH IN THE FORM OF A REGULATION OR A DECISION ADDRESSED TO ANOTHER PERSON , IS OF DIRECT AND INDIVIDUAL CONCERN TO THE FORMER .

6 THE OBJECTIVE OF THIS PROVISION IS IN PARTICULAR TO PREVENT THE COMMUNITY INSTITUTIONS FROM BEING IN A POSITION , MERELY BY CHOOSING THE FORM OF A REGULATION , TO EXCLUDE AN APPLICATION BY AN INDIVIDUAL AGAINST A DECISION WHICH CONCERNS HIM DIRECTLY AND INDIVIDUALLY .

7 THE CHOICE OF FORM CANNOT CHANGE THE NATURE OF THE MEASURE .

8 IN ORDER TO MAKE A DECISION AS TO THE ADMISSIBILITY OF THE APPLICATION IT IS THEREFORE NECESSARY TO EXAMINE WHETHER THE CONTESTED MEASURES ARE REGULATIONS OR DECISIONS WITHIN THE MEANING OF ARTICLE 173 OF THE TREATY .

9 BY VIRTUE OF THE SECOND PARAGRAPH OF ARTICLE 189 OF THE TREATY THE CRITERION FOR DISTINGUISHING BETWEEN A REGULATION AND A DECISION IS WHETHER THE MEASURE AT ISSUE IS OF GENERAL APPLICATION OR NOT .

10 THE NATURE OF THE CONTESTED MEASURES MUST THEREFORE BE STUDIED AND IN PARTICULAR THE LEGAL EFFECTS WHICH IT IS INTENDED TO OR DOES ACTUALLY PRODUCE .

11 IT IS NECESSARY IN THIS CONNEXION TO CONSIDER THE PROVISIONS IN QUESTION IN THE CONTEXT OF THE RULES ON PRODUCTION REFUNDS FOR STARCHES .

12 ACCORDING TO THE NINTH RECITAL OF THE PREAMBLE TO COUNCIL REGULATION ( EEC ) NO 2727/75 OF 29 OCTOBER 1975 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OJ 1975 , L 281 , P . 1 ) ' IN VIEW OF THE SPECIAL MARKET SITUATION FOR CEREAL STARCH , POTATO STARCH AND GLUCOSE PRODUCED BY THE ' ' DIRECT HYDROLYSIS ' ' PROCESS IT MAY PROVE NECESSARY TO PROVIDE FOR A PRODUCTION REFUND OF SUCH A NATURE THAT THE BASIC PRODUCTS USED BY THIS INDUSTRY CAN BE MADE AVAILABLE TO IT AT A LOWER PRICE THAN THAT RESULTING FROM THE APPLICATION OF THE SYSTEM OF LEVIES AND COMMON PRICES . '

13 ARTICLE 11 ( 1 ) OF THE REGULATION PROVIDES THAT A PRODUCTION REFUND MAY BE GRANTED FOR MAIZE AND COMMON WHEAT USED IN THE COMMUNITY FOR THE MANUFACTURE OF STARCH .

14 IN APPLICATION OF THIS PROVISION , THE COUNCIL , BY REGULATION ( EEC ) NO 2742/75 OF THE SAME DATE ( OJ 1975 , L 281 , P . 57 ), FIXED THE AMOUNT OF THE PRODUCTION REFUND .

15 BY REGULATION ( EEC ) NO 1862/76 OF 27 JULY 1976 THE COUNCIL AMENDED REGULATION NO 2742/75 , HAVING REGARD TO THE FACT THAT ' IN VIEW OF THE SITUATION WHICH WILL EXIST AS FROM THE BEGINNING OF THE 1976/1977 MARKETING YEAR , PARTICULARLY AS A RESULT OF THE APPLICATION FOR THAT MARKETING YEAR OF COMMON PRICES FOR CEREALS AND RICE , IT IS NECESSARY TO INCREASE THE PRODUCTION REFUNDS ; . . . HOWEVER , GIVEN THE OBJECTIVES OF THE PRODUCTION REFUND SYSTEM , SUCH AN INCREASE SHOULD NOT BE RETAINED IN THE CASE OF PRODUCTS USED IN THE MANUFACTURE OF GLUCOSE HAVING A HIGH FRUCTOSE CONTENT ; . . . THE BEST METHOD OF IMPLEMENTING A MEASURE OF THIS TYPE IS TO PROVIDE FOR RECOVERY FROM THE MANUFACTURERS CONCERNED OF THE AMOUNT OF THE INCREASE IN PRODUCTION REFUNDS ACCORDING TO THE PRODUCT USED ' .

16 UNDER ARTICLE 1 OF THAT REGULATION , THE REFUNDS ARE TO BE INCREASED AND , AT THE SAME TIME , UNDER ARTICLE 2 OF THAT REGULATION , ADDING A NEW ARTICLE , ARTICLE 5A , TO REGULATION ( EEC ) NO 2742/75 , THE PRODUCTION REFUND IS REDUCED FOR ONLY ONE PRODUCT PROCESSED FROM STARCH , GLUCOSE HAVING A HIGH FRUCTOSE CONTENT .

17 UNDER THAT ARTICLE , THE AMOUNT OF THE REFUND FOR STARCH PROCESSED INTO THIS PRODUCT IS MAINTAINED AT THE LEVEL OF THAT OF THE PREVIOUS MARKETING YEAR AND IS TO BE TOTALLY ABOLISHED AS FROM THE 1977/1978 MARKETING YEAR .

18 UNDER THE NEW ARTICLE 5A ( 3 ), THE MEMBER STATES MUST RECOVER FROM MANUFACTURERS OF GLUCOSE HAVING A HIGH FRUCTOSE CONTENT THE DIFFERENCE BETWEEN THE AMOUNT OF THE PRODUCTION REFUND FOR STARCH PROCESSED INTO GLUCOSE HAVING A HIGH FRUCTOSE CONTENT AND THE AMOUNT FOR STARCH USED FOR ANY OTHER PURPOSE .

19 THEREFORE , IN THE CASE OF PRODUCTS USED SUBSEQUENTLY FOR THE MANUFACTURE OF GLUCOSE HAVING A HIGH FRUCTOSE CONTENT , ARTICLE 2 OF REGULATION NO 1862/76 , BY USING THE EXPEDIENT OF ' RECOVERY ' , IN FACT REFUSES THE INCREASE IN THE PRODUCTION REFUND FOR THE 1976/1977 MARKETING YEAR AND ABOLISHES IT AS FROM THE FOLLOWING MARKETING YEAR .

20 A REGULATION WHICH PROVIDES FOR THE REDUCTION OF A PRODUCTION REFUND FOR A WHOLE MARKETING YEAR WITH REGARD TO A CERTAIN PRODUCT PROCESSED FROM CEREALS AND RICE AND FOR ITS COMPLETE ABOLITION FROM THE FOLLOWING MARKETING YEAR IS BY ITS NATURE A MEASURE OF GENERAL APPLICATION WITHIN THE MEANING OF ARTICLE 189 OF THE TREATY .

21 IT IN FACT APPLIES TO OBJECTIVELY DETERMINED SITUATIONS AND PRODUCES LEGAL EFFECTS WITH REGARD TO CATEGORIES OF PERSONS REGARDED GENERALLY AND IN THE ABSTRACT .

22 IT ONLY AFFECTS THE APPLICANT BY VIRTUE OF ITS CAPACITY AS A PRODUCER OF GLUCOSE HAVING A HIGH FRUCTOSE CONTENT WITHOUT ANY OTHER SPECIFICATION .

23 MOREOVER , THE NATURE OF A MEASURE AS A REGULATION IS NOT CALLED IN QUESTION BY THE POSSIBILITY OF DETERMINING MORE OR LESS PRECISELY THE NUMBER OR EVEN THE IDENTITY OF THE PERSONS TO WHOM IT APPLIES AT A GIVEN MOMENT AS LONG AS IT IS ESTABLISHED THAT IT IS APPLIED BY VIRTUE OF AN OBJECTIVE LEGAL OR FACTUAL SITUATION DEFINED BY THE MEASURE IN RELATION TO THE OBJECTIVE OF THE LATTER .

24 MOREOVER , THE FACT THAT A LEGAL PROVISION MAY HAVE DIFFERENT ACTUAL EFFECTS FOR THE VARIOUS PERSONS TO WHOM IT APPLIES IS NOT INCONSISTENT WITH ITS NATURE AS A REGULATION WHEN THAT SITUATION IS OBJECTIVELY DEFINED .

25 TO REFUSE TO ACKNOWLEDGE THAT RULES ON PRODUCTION REFUNDS AMOUNTED TO A REGULATION ONLY BECAUSE THEY CONCERNED A SPECIFIC PRODUCT AND TO TAKE THE VIEW THAT SUCH RULES AFFECTED THE MANUFACTURERS OF THAT PRODUCT BY VIRTUE OF CIRCUMSTANCES WHICH DIFFERENTIATED THEM FROM ALL OTHER PERSONS WOULD ENLARGE THE CONCEPT OF A DECISION TO SUCH AN EXTENT AS TO JEOPARDIZE THE SYSTEM OF THE TREATY WHICH ONLY PERMITS AN APPLICATION FOR ANNULMENT TO BE BROUGHT BY ANY PERSON AGAINST AN INDIVIDUAL DECISION WHICH AFFECTS HIM AS THE PERSON TO WHOM IT IS ADDRESSED OR AGAINST A MEASURE WHICH AFFECTS HIM AS IN THE CASE OF SUCH A PERSON .

26 FOR THE SAME REASONS IT IS NECESSARY TO SUSTAIN THE OBJECTION RAISED BY THE COMMISSION .

27 IT FOLLOWS THAT THE APPLICATION MUST BE DISMISSED AS INADMISSIBLE .

COSTS

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

29 THE APPLICANT HAS FAILED IN ITS SUBMISSIONS .

30 IT MUST THEREFORE BE ORDERED TO BEAR THE COSTS .

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE ;

2 . ORDERS THE APPLICANT TO BEAR THE COSTS .