61976J0088

1 . PROCEDURE - PROCEEDINGS INSTITUTED BY INDIVIDUALS - MEASURE OF DIRECT AND INDIVIDUAL CONCERN - CONCEPT - ADMISSIBILITY

( EEC TREATY , SECOND PARAGRAPH OF ARTICLE 173 )

2 . PROCEDURE - PROCEEDINGS INSTITUTED BY INDIVIDUALS - MEASURE NOT APPLICABLE TO THE PLAINTIFF - LACK OF LEGAL INTEREST - INADMISSIBILITY

( EEC TREATY , SECOND PARAGRAPH OF ARTICLE 173 )

3 . PROCEDURE - COSTS - UNREASONABLE COSTS - PAYMENT THEREOF

( RULES OF PROCEDURE , ARTICLE 69 ( 3 ))

1 . PROCEEDINGS INSTITUTED BY NATURAL OR LEGAL PERSONS ARE ADMISSIBLE AGAINST A MEASURE OF AN INSTITUTION CONCERNING THEM BY REASON OF CIRCUMSTANCES IN WHICH THEY ARE DIFFERENTIATED FROM ALL OTHER PERSONS AND DISTINGUISHED INDIVIDUALLY JUST AS IN THE CASE OF THE PERSON ADDRESSED .

2 . PROCEEDINGS INSTITUTED BY ANY NATURAL OR LEGAL PERSON AGAINST A MEASURE ( REGULATION ) WHICH IS NOT APPLICABLE TO THE SITUATION OF THE PLAINTIFF ARE INADMISSIBLE FOR LACK OF LEGAL INTEREST .

3 . EVEN A SUCCESSFUL PARTY WHICH , THROUGHOUT THE PROCEEDINGS , BASED ITS POSITION ON A PRESUMPTION WHICH REVEALS ITSELF TO BE UNFOUNDED MAY BE ORDERED TO PAY THE COSTS WHICH IT CAUSED THE OTHER PARTY TO INCUR .

IN CASE 88/76

SOCIETE POUR L ' EXPLOITATION DES SUCRES SA , HAVING ITS REGISTERED OFFICE IN ANTWERP , REPRESENTED BY WILMA VISCARDINI , ADVOCATE AT THE PADUA BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , CENTRE LOUVIGNY , 34/B/IV RUE PHILIPPE II ,

APPLICANT ,

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

DEFENDANT ,

APPLICATION FOR THE PARTIAL ANNULMENT OF COMMISSION REGULATION ( EEC ) NO 1579/76 OF 30 JUNE 1976 LAYING DOWN SPECIAL DETAILED RULES OF APPLICATION FOR SUGAR UNDER REGULATION ( EEC ) NO 557/76 ON THE EXCHANGE RATES TO BE APPLIED IN AGRICULTURE ( OJ L 172 OF 1 . 7 . 1976 , P . 59 ),

1 THE APPLICATION LODGED AT THE COURT REGISTRY ON 16 SEPTEMBER 1976 SEEKS THE ANNULMENT OF COMMISSION REGULATION ( EEC ) NO 1579/76 OF 30 JUNE 1976 LAYING DOWN SPECIAL DETAILED RULES OF APPLICATION FOR SUGAR UNDER REGULATION ( EEC ) NO 557/76 ON THE EXCHANGE RATES TO BE APPLIED IN AGRICULTURE ( OJ L 172 , P . 59 ) IN SO FAR AS IT ABOLISHES THE RIGHT OF CANCELLATION OF EXPORT LICENCES CERTIFYING THE REFUND FIXED UNDER THE AWARDS PROVIDED FOR BY REGULATION NO 2101/75 , ISSUED BEFORE 15 MARCH 1976 AND NOT YET USED ON 1 JULY 1976 ( ARTICLE 1 ( 2 )).

2 REGULATION ( EEC ) NO 1134/68 OF THE COUNCIL OF 30 JULY 1968 LAYING DOWN RULES FOR THE IMPLEMENTATION OF REGULATION ( EEC ) NO 653/68 ON CONDITIONS FOR ALTERATIONS TO THE VALUE OF THE UNIT OF ACCOUNT USED FOR THE COMMON AGRICULTURAL POLICY ( OJ , ENGLISH SPECIAL EDITION , 1968 ( II ), P . 396 ) PROVIDES IN ARTICLE 4 ( 1 ) THAT IN THE CASE OF ALTERATION OF THE RELATIONSHIP BETWEEN THE PARITY OF THE CURRENCY OF A MEMBER STATE AND THE VALUE OF THE UNIT OF ACCOUNT , THE AMOUNTS WHICH HAVE BEEN FIXED IN ADVANCE FOR A TRANSACTION STILL TO BE CARRIED OUT AFTER THAT ALTERATION ARE TO BE ADJUSTED .

3 IN ORDER TO PREVENT THE CHANGE IN THE AMOUNTS REFERRED TO FROM CAUSING DISADVANTAGE TO THE PERSONS CONCERNED THE LAST SUBPARAGRAPH OF ARTICLE 4 ( 1 ) ADDS HOWEVER THAT A PERSON WHO HAS OBTAINED ADVANCE FIXING FOR A SPECIFIC TRANSACTION MAY , BY APPLICATION , OBTAIN CANCELLATION OF THE ADVANCE FIXING AND OF THE RELEVANT DOCUMENT OR CERTIFICATE .

4 ARTICLE 5 ( 1 ) OF COUNCIL REGULATION ( EEC ) NO 557/76 OF 15 MARCH 1976 ON THE EXCHANGE RATE TO BE APPLIED IN AGRICULTURE ( OJ L 67 , P . 1 ) WHICH FIXED THE RATES OF EXCHANGE VALID FOR MARKETING YEARS COMMENCING IN THE COURSE OF 1976 STATED THAT THE PROVISIONS OF REGULATION NO 1134/68 WERE APPLICABLE WHILE STIPULATING HOWEVER IN ARTICLE 5 ( 2 ) THAT THE SECOND SUBPARAGRAPH OF ARTICLE 4 ( 1 ) REFERRED TO ABOVE PROVIDING FOR THE RIGHT OF CANCELLATION ' SHALL APPLY ONLY IF THE APPLICATION OF THE NEW REPRESENTATIVE RATES IS DISADVANTAGEOUS FOR THE PARTY CONCERNED ' .

5 THE ABOVEMENTIONED ARTICLE 5 ( 2 ) WAS FURTHER AMENDED BY COUNCIL REGULATION ( EEC ) NO 1451/76 OF 22 JUNE 1976 ( OJ L 163 , P . 5 ) WHICH STATED IN THE PREAMBLE THAT ' WHEREAS IF THIS RIGHT ( OF CANCELLATION ) WERE WIDELY EXERCISED , IT COULD IN CERTAIN CASES SERIOUSLY HINDER GOOD COMMUNITY ADMINISTRATION OF A GIVEN AGRICULTURAL MARKET ' ADDED THE FOLLOWING SUBPARAGRAPH TO THE SAID ARTICLE 5 ( 2 ): ' PROVISION MAY BE MADE FOR THIS DISADVANTAGE TO THE COMPENSATED FOR BY A SUITABLE MEASURE . IN SUCH A CASE , THE PROVISION REFERRED TO IN THE FIRST SUBPARAGRAPH SHALL NOT APPLY ' .

6 BY VIRTUE OF THIS LATTER PROVISION THE COMMISSION ADOPTED THE REGULATION AT ISSUE , STATING IN THE PREAMBLE THERETO THAT : ' WHEREAS IN THE SUGAR SECTOR LARGE SCALE RECOURSE TO THE RIGHT TO CANCEL EXPORT LICENCES ISSUED IN CONNEXION WITH PARTIAL AWARDS UNDER COMMISSION REGULATION ( EEC ) NO 2101/75 OF 11 AUGUST 1975 ON A STANDING INVITATION TO TENDER IN ORDER TO DETERMINE A LEVY AND/OR REFUND ON EXPORTS OF WHITE SUGAR , AS LAST AMENDED BY REGULATION ( EEC ) NO 1406/76 , COULD SERIOUSLY DISTURB THE COMMUNITY MANAGEMENT OF THE SECTOR ; WHEREAS IN ORDER TO AVOID SUCH A RISK PROVISION MUST BE MADE FOR THE RIGHT OF CANCELLATION NOT TO APPLY , FOR APPROPRIATE COMPENSATION FOR THE RESULTING DISADVANTAGE AND FOR THE TERMS UNDER WHICH SUCH COMPENSATION SHALL BE GRANTED ' .

7 ARTICLE 1 OF THAT REGULATION PROVIDES THAT :

' 1 . THE COMPENSATION REFERRED TO IN THE SECOND SUBPARAGRAPH OF ARTICLE 5 ( 2 ) OF REGULATION ( EEC ) NO 557/76 SHALL BE GRANTED FOR THOSE QUANTITIES OF WHITE SUGAR FOR WHICH CUSTOMS EXPORT FORMALITIES ARE COMPLETED ON OR AFTER 1 JULY 1976 IN CONNEXION WITH PARTIAL AWARDS UNDER REGULATION ( EEC ) NO 2101/75 AND FOR WHICH AN EXPORT LICENCE WAS ISSUED BEFORE 15 MARCH 1976 . FOR THE MEMBER STATES CONCERNED THIS COMPENSATION SHALL BE AS SHOWN IN THE ANNEX .

2 . IN RESPECT OF THE EXPORT LICENCES REFERRED TO IN PARAGRAPH 1 , THE RIGHT TO CANCEL UNDER THE LAST SUBPARAGRAPH OF ARTICLE 4 ( 1 ) OF REGULATION ( EEC ) NO 1134/68 MAY NOT BE EXERCISED . '

ADMISSIBILITY

8 THE APPLICANT ARGUES THAT IT IS DIRECTLY AND INDIVIDUALLY CONCERNED BY THE DECISION WHICH IS CONTAINED IN THE SECOND PARAGRAPH OF THE ABOVEMENTIONED ARTICLE AND THEREFORE THAT HIS ACTION IS ADMISSIBLE UNDER ARTICLE 173 OF THE TREATY .

9 ON THE ONE HAND , BY REFERRING TO A CLEARLY DEFINED CATEGORY OF EXPORT LICENCES , NAMELY THOSE ISSUED BEFORE 15 MARCH 1976 AND STILL VALID ON 1 JULY 1976 , THE PROVISION AT ISSUE THEREFORE DIRECTLY CONCERNS TRADERS HOLDING SUCH LICENCES .

10 ON THE OTHER , THE TRADERS ARE DISTINGUISHED INDIVIDUALLY BY THE FACT THAT THEY OBTAINED , FOR THE PRODUCT IN QUESTION , ADVANCE FIXING IN LICENCES ISSUED BEFORE 15 MARCH 1976 AND STILL VALID ON 1 JULY 1976 .

11 THE PROVISION THEREFORE CONCERNS NATURAL OR LEGAL PERSONS AFFECTED BY REASON OF CIRCUMSTANCES IN WHICH THEY ARE DIFFERENTIATED FROM ALL OTHER PERSONS AND DISTINGUISHED INDIVIDUALLY JUST AS IN THE CASE OF THE PERSON ADDRESSED .

12 CONSEQUENTLY THE ACTION IS ADMISSIBLE IN THIS RESPECT .

13 HOWEVER BEFORE DECIDING ON THE SUBSTANCE OF THE CASE IT IS NECESSARY TO EXAMINE WHETHER THE REGULATION AT ISSUE IS APPLICABLE TO THE SITUATION OF THE APPLICANT .

14 INDEED IN THE ALTERNATIVE THE APPLICANT HAS ARGUED THAT THE REGULATION IS NOT APPLICABLE TO IT ON THE GROUND THAT ALTHOUGH IT WAS PUBLISHED IN AN ISSUE OF THE OFFICIAL JOURNAL DATED 1 JULY 1976 THE ISSUE WAS ONLY DISTRIBUTED ON THE FOLLOWING DAY AND THAT THE REGULATION CANNOT HAVE A RETROACTIVE EFFECT .

15 THE COMMISSION ADMITS THAT THIS ISSUE OF THE OFFICIAL JOURNAL WAS ONLY PUBLISHED AND DISTRIBUTED THE FOLLOWING DAY BECAUSE OF A STRIKE .

16 IN SPITE OF THE FACT THAT ARTICLE 2 OF THE REGULATION PROVIDES THAT IT SHALL ENTER INTO FORCE ON 1 JULY 1976 THE REGULATION COULD ONLY PROPERLY BE APPLIED ON THE FOLLOWING DAY .

17 WHILE COMMUNITY LAW DOES NOT EXCLUDE ALL POSSIBILITY OF RETROACTIVE EFFECTS THE REGULATION AT ISSUE CONTAINS NO FACTOR CAPABLE OF ATTRIBUTING TO IT EFFECTS BEFORE THE DAY OF ITS ACTUAL PUBLICATION .

18 CONSEQUENTLY IT CANNOT BE APPLIED TO THE APPLICATIONS FOR THE CANCELLATION OF LICENCES LODGED BY THE APPLICANT ON 1 JULY 1976 .

19 IN THESE CIRCUMSTANCES , IN VIEW OF THE LACK OF LEGAL INTEREST OF THE APPLICANT , THE ACTION IS INADMISSIBLE .

COSTS

20 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

21 HOWEVER ARTICLE 69 ( 3 ) PROVIDES THAT THE COURT MAY ORDER EVEN A SUCCESSFUL PARTY TO PAY COSTS WHICH IT CAUSED THE OTHER PARTY TO INCUR .

22 THROUGHOUT THE PROCEEDINGS THE COMMISSION BASED ITS ARGUMENT ON THE EXPRESS PRESUMPTION THAT REGULATION NO 1579/76 WAS INDEED APPLICABLE TO THE SITUATION OF THE APPLICANT AND THEREFORE ARTICLE 69 ( 3 ) SHOULD BE APPLIED IN THE PRESENT CASE AS IT HAS APPEARED THAT THAT PRESUMPTION WAS WITHOUT FOUNDATION .

23 CONSEQUENTLY THE DEFENDANT SHOULD BE ORDERED TO BEAR THE COSTS OF THE CASE INCLUDING THOSE OF THE PROCEEDINGS FOR THE ADOPTION OF INTERIM MEASURES .

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE ;

2 . ORDERS THE DEFENDANT TO PAY THE COSTS .