61987J0354

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1 . Action for annulment - Natural or legal persons - Acts of direct and individual concern to them - Regulation fixing the percentage reduction of quantities for which applications for import licences have been made during a certain period

( EEC Treaty, Art . 173, second paragraph, and Art . 189, second paragraph; Commission Regulation No 2806/87 )

2 . Agriculture - Common organization of the markets - Beef and veal - High-quality fresh, chilled or frozen beef and veal - System of import licences - Applications for licences exceeding the quantity available - Application of a uniform percentage reduction - Introduction, for the purposes of dealing with current applications, of a quantitative ceiling on applications to be satisfied after reduction - Commission' s own powers - Breach of the principle of legal certainty - None

( Commission Regulation No 2377/80, as amended by Regulation No 3578/82, and No 2806/87, Art . 1, second paragraph )

1 . In the context of the management of a tariff quota, a regulation laying down the percentage up to which the competent authorities of the Member States are to satisfy applications for import licences lodged by traders concerns such traders directly . Since it is adopted in the light of the overall quantity in respect of which such applications were made during a specific period, the regulation decides on the treatment to be accorded to each application lodged, even if the institution adopting the regulation did not know the identity of the applicants, so that the regulation is of individual concern to each of them . Consequently, it is not an act of general application within the meaning of the second paragraph of Article 189 of the EEC Treaty but a bundle of individual decisions and an act against which an action for annulment may be brought by a trader concerned under the second paragraph of Article 173 .

2 . In view of the aim of the system of import licence applications giving access to the Community tariff quota for high-quality fresh, chilled or frozen beef and veal and of the reduction of applications where such applications exceed the available quota, as it is laid down by Regulation No 2377/80, amended by Regulation No 3578/82, namely to provide a guarantee of equal and continuing access by all interested operators within the Community to the said quota, the Commission was entitled to make it clear, in the second paragraph of Article 1 of Regulation No 2806/87, at a time when all the applications for import licences had already been lodged, that if an application for a certificate exceeded the available quantity it would be taken into account only up to the limit of that quantity . The purpose of an application exceeding the available quantity could not have been anything other than to distort the proportional reduction in all the quantities applied for that was subsequently made by the Commission and such a measure of good administration was necessary in order to avoid the undermining of the aims of the scheme and, being within the Commission' s own powers, could be adopted without consultation of the management committee . Since it was limited to making clear existing rules of which it was a necessary consequence, it could not contravene the principle of legal certainty .

In Case C-354/87,

Weddel & Co . BV, a company incorporated under Netherlands law whose registered office is in Rotterdam, represented by G . van der Wal, of the Hague Bar, and G . F . van der Hardt Aberson, of the Rotterdam Bar, with an address for service in Luxembourg at the Chambers of Aloyse May, 31 Grand-rue,

applicant,

supported by

Kingdom of the Netherlands, represented initially by G . M . Borchardt and M . A . Fierstra and subsequently by J . W . de Zwaan and T . Heukels, of the Ministry of Foreign Affairs, acting as Agents,

intervener,

v

Commission of the European Communities, represented by René Barents, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of Guido Berardis, a member of its Legal Department, Wagner Centre, Kirchberg,

defendant,

APPLICATION for a declaration that Commission Regulation ( EEC ) No 2806/87 of 18 September 1987 on the issue of import licences for high-quality fresh, chilled or frozen beef and veal ( Official Journal 1987 L 268, p . 59 ) is void,

THE COURT ( Second Chamber ),

composed of : T . F . O' Higgins, President of Chamber, G . F . Mancini and F . A . Schockweiler, Judges,

Advocate General : W . Van Gerven

Registrar : J . A . Pompe, Deputy Registrar,

having regard to the Report for the Hearing,

after hearing oral argument presented by the parties at the hearing on 7 March 1990,

after hearing the Opinion of the Advocate General delivered at the sitting on 2 May 1990,

gives the following

Judgment

1 By an application lodged at the Court Registry on 24 November 1987, Weddel & Co . BV brought an action under Article 173 of the EEC Treaty for a declaration that Commission Regulation ( EEC ) No 2806/87 of 18 September 1987 on the issue of import licences for high-quality fresh, chilled or frozen beef and veal ( Official Journal 1987 L 268, p . 59 ) is void .

2 Before the merits of the application are considered it is necessary to set out the context of the contested regulation, that is to say the Community provisions on the Community tariff quota for the products concerned, the issue of import licences and the use of the quota in question .

The Community tariff quota

3 Each year, as part of its obligations under the General Agreement on Tariffs and Trade ( hereinafter referred to as "GATT "), the Community opens a Community tariff quota for high-quality fresh, chilled or frozen beef and veal . The quota for 1987 was opened by Council Regulation ( EEC ) No 3928/86 of 16 December 1986 ( Official Journal 1986 L 365, p . 2 ). Under Article 1 of that regulation, the total volume of the quota was to be 29 800 tonnes . Article 2 provided that detailed rules of application were to be adopted in accordance with the "management committee" procedure laid down in Article 27 of Regulation ( EEC ) No 805/68 of the Council of 27 June 1968 on the common organization of the market in beef and veal ( Official Journal, English Special Edition 1968 ( I ), p . 187 ).

4 Commission Regulation ( EEC ) No 3985/86 of 23 December 1986 ( Official Journal 1986 L 370, p . 37 ) laid down the detailed rules for the application of the import arrangements . Article 1(1)(d ) of that regulation provides as follows :

"1 . The tariff quota for fresh, chilled or frozen beef and veal provided for in Article 1(1 ) of Regulation ( EEC ) No 3928/86 shall be allocated as follows :

( a ) ...

...

( d ) 10 000 tonnes product weight of meat, falling within subheadings 02.01 A II ( a ) and ( b ) of the Common Customs Tariff and answering the following definition : ..."

Article 7 provides as follows :

"The lodging of licence applications and the issuing of import licences for the meat referred to in Article 1(1)(d ) shall be effected in accordance with the provisions of Articles 12 and 15 of Regulation ( EEC ) No 2377/80 ."

The rules governing import licences

5 During the relevant period in these proceedings, the issuing of import licences was governed by Commission Regulation ( EEC ) No 2377/80 of 4 September 1980 ( Official Journal 1980 L 241, p . 5 ). Article 12 of that regulation, as amended by Article 2 of Commission Regulation ( EEC ) No 3578/82 of 23 December 1982 ( Official Journal 1982 L 373, p . 59 ), applied until 1 January 1988 and provided as follows :

"1 . In order to qualify for the special import arrangements referred to in Article 1(1)(d ) of Regulation ( EEC ) No 2972/79 :

( a ) the licence application or applications lodged by any one applicant shall relate to a total quantity corresponding to not less than five tonnes of meat by product weight in respect of the arrangements in question for the month during which the application or applications are lodged;

..."

6 Article 15 of Regulation No 2377/80 governs applications for import licences and the issuing thereof . Article 15(6)(d ), as inserted therein by Regulation No 3578/82, provides as follows :

"( d ) The Commission shall decide to what extent applications under Article 12 can be accepted . If the quantities for which licences have been requested exceed the quantities available, the Commission shall reduce the amounts requested by a fixed percentage . If the total quantity requested is lower than that available, the Commission shall determine the amount of the balance remaining ."

Utilization of the Community tariff quota

7 As regards the quota of 10 000 tonnes of high-quality beef and veal fixed for 1987 pursuant to Article 1(1)(d ) of Regulation No 3985/86, the total quantities for which applications for import licences were lodged exceeded the quantities available . By Commission Regulation ( EEC ) No 519/87 of 20 February 1987 ( Official Journal 1987 L 52, p . 12 ), the Commission exercised its power under Article 15(6)(d ) of Regulation No 2377/80 to reduce the amounts requested by a fixed percentage . Article 1 of Regulation No 519/87 provides as follows :

"All applications for import licences in respect of February 1987 for high-quality fresh, chilled or frozen beef and veal as referred to in Article 1(1)(d ) of Regulation ( EEC ) No 3985/86 are hereby met to the following extent, 3.343% of the quantity requested ."

8 Since a large number of the licences applied for were not used for commercial reasons, a new award procedure was opened by Commission Regulation ( EEC ) No 2539/87 of 24 August 1987 ( Official Journal 1987 L 241, p . 6 ). Article 1 of Regulation No 2539/87 provides as follows :

"Licence applications can be submitted in accordance with Article 12 of Regulation ( EEC ) No 2377/80, during the first 10 days of September 1987 for a total quantity of 4 617 tonnes of beef and veal originating in and imported from the United States of America or from Canada ."

9 It subsequently appeared necessary to reduce by a certain percentage the quantities applied for under Regulation No 2539/87 . For that purpose, Article 1 of the contested Regulation No 2806/87 provided as follows :

"All applications for import licences in respect of September 1987 for high-quality fresh, chilled or frozen beef and veal as referred to in Article 1(1)(d ) of Regulation ( EEC ) No 3985/86 are hereby met to the following extent 0.2425% of the quantity requested .

All applications for a quantity in excess of the 4 617 tonnes made available by Regulation ( EEC ) No 2539/87 are deemed to have been made for that quantity ."

10 On 9 September 1987, the applicant submitted to the competent authorities in the Netherlands an application for an import licence for 80 000 tonnes of beef, followed on 10 September by a new application for 240 000 tonnes . As a result of the application of the ceiling provided for in the second paragraph of Article 1 of Regulation No 2806/87, the contested measure, the applicant was granted a licence for only 0.2425% of 4 617 tonnes and was thus allowed to import only 11.19 tonnes of beef .

11 The question whether, under Regulation No 2539/87, a trader could apply for licences for a quantity greater than the available quantity was first raised at the meeting of the management committee on 11 September 1987 . According to the summary Minutes of the meeting, "the Commission replied that the wording of Article 12 of Regulation ( EEC ) No 2377/80 did not specify any maximum quantity . The question was nevertheless doubtful and would require further consideration ".

12 On 11 September 1987 the Produktschap voor Vee en Vlees ( Cattle and Meat Board, hereinafter referred to as "the Produktschap "), the Netherlands agency with which licence applications are lodged and which issues import licences, informed the Commission of the total quantity in respect of which applications had been lodged in the Netherlands . On 15 September 1987, the Commission replied that a licence application should relate to a total quantity corresponding to not less than 5 tonnes of meat and not more than the total quantity available at the time when the application was lodged, although there had been no specific ceiling under these arrangements since 1982 .

13 The Produktschap replied that this interpretation of Regulation No 2539/87 was inconsistent with certain decisions taken earlier, in particular at the management committee meeting on 11 September 1987, and was giving rise to serious difficulties for the undertakings concerned in the Netherlands . However, by the contested regulation, No 2806/87 of 18 September 1987, the Commission established a ceiling for applications which reduced proportionately the quantities applied for .

14 By order of 27 April 1988, the Court granted the Netherlands Government leave to intervene in support of the applicant' s conclusions .

15 Reference is made to the Report for the Hearing for a fuller account of the rules applicable, the facts of the case, the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

Admissibility

16 The applicant claims that the application is admissible in accordance with the judgment of the Court in Joined Cases 41 to 44/70 International Fruit Co . NV and Others v Commission [1971] ECR 411, on the ground that the contested regulation is not of general application and is of direct and individual concern to it . The applicant claims that it has suffered considerable damage through the application of the regulation in question since licence applications were granted only up to the limit of a maximum tonnage and it was therefore unable to import a considerably larger quantity of beef and veal from the United States or Canada, or from both countries . It was also unable to obtain licences in the framework of GATT .

17 The Commission considers the application inadmissible on the ground that the contested regulation, No 2806/87, is not of direct and individual concern to the applicant within the meaning of the second paragraph of Article 173 of the EEC Treaty : that regulation is of general application and cannot be regarded as a decision or series of decisions meeting the requirements of Article 173; the fact that it is possible to determine the number, and even the identity, of the persons to whom a regulation is addressed does not of itself constitute sufficient grounds for holding that regulation to be an act whose legality may be reviewed as provided for in the second paragraph of Article 173 of the EEC Treaty .

18 It is necessary to examine whether the provisions of Regulation No 2806/87 are of direct and individual concern to the applicant within the meaning of the second paragraph of Article 173 of the EEC Treaty .

19 As regards the first condition, it is sufficient to state that Regulation No 2806/87 fixes in great detail the criteria on the basis of which import licences must be granted, without leaving any discretion to the agencies of the Member States responsible for issuing licences . Consequently, the regulation is of direct concern to the applicant .

20 As regards the second condition, it is not disputed that Regulation No 2806/87 was adopted in view of the quantities of beef and veal in respect of which individual applications for import licences had been lodged in the first 10 days of the month of September 1987 .

21 When the regulation was adopted, the number of applications which were likely to be affected by it was therefore known . No new application could be added . On the basis of the total quantity for which applications had been lodged the percentage up to which applications were to be granted was determined .

22 Consequently, even if the Commission was aware only of the quantities applied for when it adopted Regulation No 2806/87, it thereby decided on the treatment to be accorded to each application lodged .

23 It follows that Article 1 of Regulation No 2806/87 is not a provision of general application within the meaning of the second paragraph of Article 189 of the EEC Treaty but must be regarded as a bundle of individual decisions taken by the Commission pursuant to Article 1(1)(d ) of Regulation No 3985/86 in the guise of a regulation, each of those decisions affecting the legal position of each applicant . It must therefore be concluded that the regulation is of direct and individual concern to the applicant and that the application is therefore admissible .

Substance

24 The applicant puts forward a number of submissions claiming in particular that the statement of the reasons on which the contested regulation was based was inadequate, that the regulation was ultra vires and that an essential procedural requirement was infringed .

25 The applicant thus claims first of all that the preamble to Regulation No 2806/87 does not state the reasons for the second paragraph of Article 1 of the regulation, which represents a change in the policy followed until then by the Commission . The regulation was therefore adopted in breach of Article 190 of the EEC Treaty .

26 The applicant' s second submission is that Regulation No 2806/87 is not confined to fixing the procedure for lodging licence applications, in accordance with Article 15(6)(d ) of Council Regulation No 2377/80, but subjects the issue of licences to conditions which were not provided for in Article 12 of that regulation . By laying down new rules in a regulation adopted in order to implement a Council regulation, the Commission acted ultra vires .

27 Thirdly, the applicant claims that the Commission infringed a procedural rule or an essential procedural requirement, or both, by not consulting the management committee in accordance with Article 27 of Regulation No 805/68 of the Council, cited above .

28 After explaining the background to the adoption of the ceiling the Commission contends that the second paragraph of Article 1 of Regulation No 2806/87 is merely a clarification and not a modification of the arrangements contained in Articles 12 and 15 of Council Regulation No 2377/80 . The ceiling is simply the logical consequence of the application of the technique of the uniform percentage provided for in Article 15(6)(d ) of Regulation No 2377/80 .

29 It should be noted that the applicant' s three submissions raise the question whether the Commission was entitled, at a time when all the applications for import licences had already been lodged, to introduce the ceiling by means of the contested regulation and provide that each application would be granted only up to the limit of 4 617 tonnes, the total quantity available .

30 As is clear from the second recital in the preamble to Council Regulation ( EEC ) No 2957/79 of 20 December 1979 ( Official Journal 1979 L 336, p . 5 ), which opened for the first time a Community tariff quota for the meat in question, the aim of the system of import licence applications and of reducing applications if the quota is exhausted is that there should be "a guarantee of equal and continuing access by all interested operators within the Community to the said quota ".

31 It must be acknowledged that the rule laid down in the second paragraph of Article 1 of Regulation No 2806/87 evinces sound administration, in so far as it clarifies the pre-existing Community rules, of which it is furthermore a necessary consequence, since in the absence of such a rule the system of import licences could not operate properly . In this regard, it should be stressed that anyone lodging an application which exceeded the available quantity can have done so only with the intention of distorting, to his own advantage, the proportionate reduction in all the quantities applied for made subsequently by the Commission . Consequently, the provisions adopted by the Commission in order to prevent the aims of the system in question from being undermined, must be regarded as being within its own powers and consultation of the management committee as unnecessary .

32 The applicant further claims that, in other regulations and schemes under the common agricultural policy, it was usual and accepted for applications for more than the quantity available to be lodged . However, it was unable to give any example of such a practice in reply to a written question put by the Court . In those circumstances, the applicant could not reasonably expect the Commission to act differently so that this argument must be rejected .

33 The applicant also claims that the second paragraph of Article 1 of Regulation No 2806/87 infringes the principle of equal treatment in so far as it draws an unjustified distinction between those who lodged in one Member State a single application which exceeded the available quantity and those who lodged in more than one Member State applications relating each time to the entire quantity available . According to the applicant, the latter applications are not aggregated under Article 15(2)(b ) of Regulation No 2377/80, as amended by Regulation No 3578/82, and thus enable an import licence to be applied for in different Member States under the same special import arrangements .

34 The Commission acknowledges that since Regulation No 3578/82 entered into force the application of the ceiling provided for by Regulation No 2806/87 could indeed give rise to differences in treatment in the case of applicants who submit applications simultaneously in more than one Member State . However, so far no such case has arisen . In any event, the applicant has not suffered from this potential difference in treatment since it did not lodge any application in other Member States .

35 In this regard, it should be recalled first of all that the aim of the import arrangements in question is to guarantee equal access by all interested operators within the Community to the quantity available . Secondly, both the lodging in a single Member State of an application for a quantity exceeding the quantity available and the lodging in more than one Member State of applications each for the entire quantity available are likely to undermine the purpose of those arrangements . The fact that the Commission did not take quick action against the second type of abuse cannot therefore entitle the applicant to have its own method approved or justified . Consequently, the applicant is not justified in claiming a breach of the principle of equal treatment .

36 Lastly, as regards the argument put forward by the applicant and the Netherlands Government to the effect that the Commission' s interpretation did not clearly follow from the pre-existing Community rules and constituted a breach of legal certainty, it should be stressed once again that that interpretation merely clarified and was a necessary consequence of the pre-existing Community rules . The allegation of a breach of legal certainty must therefore be rejected .

37 It follows from the foregoing considerations that the submissions relied upon are unfounded and that the application must therefore be dismissed .

Costs

38 Under Article 69(2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . Since the applicant has been unsuccessful in its submissions, it must be ordered to pay the costs .

On those grounds,

THE COURT ( Second Chamber )

hereby :

( 1 ) Dismisses the application;

( 2 ) Orders the applicant to pay the costs .