OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 13 JUNE 1968 ( 1 )

Mr President,

Members of the Court,

The applicant in the present proceedings runs a sugar factory in the Land of Lower Saxony in the Federal Republic of Germany. There it produces, from sugar beet, raw sugar which is further processed into white sugar by other concerns called refineries. It feels aggrieved by a provision of the common organization of the market in sugar which the Council of Ministers set up in Regulation No 1009/67 of 18 December 1967 (Official Journal No 308).

This organization of the market, the details of which are obscure and complex for the uninitiated, has as its object ‘to ensure that the necessary guarantees in respect of employment and standards of living are maintained’ for Community growers of sugar beet and sugar cane. For this purpose it provides measures for stabilizing the sugar market, which — like other agricultural markets in the Community — has to be regulated essentially by means of price. At the centre of the market organization, therefore, we find the fixing of a target price for white sugar and a corresponding intervention price which are fixed each year for the Community area having the largest surplus. The minimum prices which the sugar manufacturers are obliged to pay the sugar beet producers have also to be fixed each year for the different sugar beet producing areas, taking into account the intervention price. Furthermore, provision is made for derived intervention prices for other Community areas, intervention prices for raw cane sugar and intervention prices for raw beet sugar. These play a part for the intervention agencies designated by the Member States which are required ‘to buy in at the intervention price valid for the area in which the sugar is located at the time of purchase’.

However, although this obligation to buy in at intervention prices applies without any limitation in time to white sugar and cane sugar and thus represents a permanent component of the organization of the market, the rules on the intervention buying of raw beet sugar are, by virtue of Article 9(30) of the said Regulation, of limited duration: they cease to have effect on 31 December 1969. Thereafter, Article 9(4) provides only that ‘special measures may be taken for raw beet sugar should an abnormal situation arise’.

The applicant objects to these exceptions. It sees in them an unjustified discrimination against manufacturers of raw beet sugar and accordingly, in its application lodged at the Court Registry on 29 February 1968, requests the annulment of Article 9(3) of Regulation No 1009/67.

As you know, the Council's only reaction to this was to lodge its own application under Article 91 of the Rulex of Procedure, that is to say, it regards the original application as inadmissible since the contested provision partakes of the nature of a regulation, and asks for a preliminary ruling on this question. Thus it was that the applicant was able to submit its observations on the Council's objection in a further document and that the parties only discussed the admissibility of the application in the oral proceedings of 29 May.

I will now give my opinion on this problem of admissibility.

The relevant provision is the second paragraph of Article 173 of the EEC Treaty which the Court has considered on several occasions and according to which it is necessary to distinguish three cases in which individuals have the right to institute proceedings for annulment. There must either be a decision addressed to the applicant, that is to say, directed to him, or a decision which is directed to a person other than the applicant, or a decision issued in the form of a regulation. Both parties correctly take the view that the measure issued by the Council is in principle a regulation in its totality, so that only the third of these cases comes into consideration in the present case. This means that we are concerned in the first place with the legal nature of the contested measure, if we are not to take the course, which was adopted once (in Case 40/64) but was not followed in the last relevant case (Case 30/67), and leave open the question of the legal nature of the measure and to ascertain immediately whether at least, as the second paragraph of Article 173 prescribes, it is of individual and direct concern to the applicant. If one endeavours to define the legal nature of the criticized measure, then, according to our previous case-law (as last expressed in Case 30/67), the decisive question is whether the provision to be examined is a regulation in appearance only, that is to say, has the form of a regulation (a measure which cannot be contested by a private person) but must in reality be described as a decision.

This question of classification — decision or regulation, there is no third category — raises more difficulties in the present case than in other disputes. We must therefore investigate it more closely.

Let me remind you once more of what concerns us. It is the imposition of a limit in time on part of the intervention rules contained in Regulation No 1009/67, that is to say, a provision under which the national intervention agencies will as from 1 January 1970 no longer be under an obligation to buy in raw beet sugar, or — in other words — the abolition of a sales guarantee to the detriment of those who produce and sell this product.

In considering whether this measure is to be regarded as a decision or a regulation within the meaning of the Treaty we must first state that the criteria formulated in the Treaty itself for the purposes of definition are not abundant or very precise. Article 189 merely says: ‘A decision shall be binding in its entirety upon those to whom it is addressed’, while on the subject of the regulation all it says essentially is that it shall have ‘general application’. Even our case-law does not appear to me to be very helpful in evaluating the facts of this case, since, when looked at closely, it has never had to deal with a comparable borderline case, but always with measures which could either clearly by qualified as decisions or which contained measures which were clearly of a legislative character, that is to say, measures which leave no doubt that they are rules of law. As regards the lastmentioned category of measure, I am able to refer to Cases 16 and 17/62 in which the elimination of quantitative restrictions and dispensing in general with recourse to Article 44 of the Treaty in the context of Regulation No 23 were at issue; Cases 19 to 22/62 which were concerned with the applicability of the competition law of the Economic Community to agreements on agricultural products; Case 40/64 in which the fixing of reference prices for citrus fruits was discussed; finally, Case 30/67, decided a short while ago, the subject-matter of which was the fixing of derived intervention prices in the context of the organization of the market in cereals. Corresponding judgments could be cited on the concept of general decisions under the Coal and Steel Treaty. In view of the subject-matter of the disputes in these cases it is therefore not surprising that, for the purposes of characterizing general decisions (within the meaning of the ECSC Treaty) or of regulations (within the meaning of the EEC Treaty) expressions were used in which abstract and general factors predominate. Thus in the judgment in Joined Cases 36 to 38, 40 and 41/58 it is stated that a general decision ‘establishes a series of legislative principles, lays down in abstract form the circumstances in which they are to apply and specifies the legal consequences flowing from them… it contains general … rules which… may be of importance in the same way for an indeterminate number of cases and are to be applicable to all persons finding themselves in the circumstances specified for the application of such rules’. The judgment delivered in Cases 16 and 17/62, which specifies certain characteristics of a regulation under the EEC Treaty, states: ‘A regulation, being essentially of a legislative nature, is applicable … to categories of persons viewed abstractly and in their entirety’.

However, apart from those clear and unmistakable forms of administrative action to which the definitions of our previous case-law relate, there also exist without any doubt intermediate or hybrid forms. This is shown if we look at national law, and in particular at German law in which the dividing line between individual and legislative measures plays a similar part to that under the EEC Treaty (whilst under French, Italian and Belgian law, which I have not neglected to consider, this problem does not arise or is of secondary importance). A look at national law further shows that it is impossible to take sufficient account of the existence of such intermediate action on the basis of concepts of pure legal theory, for example by concentrating solely on the class of persons addressed and regarding as individual acts only those measures in respect of which, at the time of their issue, the number of the persons to whom they are addressed is established objectively, whilst regarding as legal norms or rules of law all those measures in respect of which, at the time of their issue, the class of persons to whom they are addressed is not ascertainable because it is liable to alter during the period of validity of the measure where there is, as Fuß ( 2 ) once expressed it, ‘a potential for fluctuation in the class of persons concerned’.

In the case-law of the Bundesverwaltungsgericht (Federal Administrative Court), in particular, but also in the case-law of other German courts, we find a series of cases which were decided without any reference to the undoubtedly clear and unequivocal criteria of delimitation which I have just outlined. Instead, these courts have also considered as decisive, where hybrid forms of administrative action are concerned, the question whether what is at issue is an individual case, in other words a ‘specific case’. Where this was so, and it was the sole decisive criterion according to the wording of the Rules of Administrative Procedure (Military Government Ordinance No 165) which formerly applied in the British Zone of Control, one spoke of a ‘general provision’ (‘Allgemeinverfügung’), that is to say, an administrative measure which could be contested even where an indeterminate number of persons was concerned. This applied, for example, to an order for the merging of one Gemeinde with another, ( 3 ) to the erection of traffic signs, ( 4 ) to the closure of a public right of way, ( 5 ) to a police prohibition for reasons of public health against dealing in certain goods in certain areas, ( 6 ) to a refusal to approve the rules on membership fees of a Chamber of Crafts (‘Handwerkskammer’), ( 7 ) or to a refusal to approve the electoral rules of a Chamber of Commerce and Industry. ( 8 ) On occasion we find this justified expressly on the basis that the concept of an administrative measure (‘Verwaltungsakt’) is also a concept of procedural law and should be given a broad definition ( 3 ) in the interests of the basic idea in constitutional law of comprehensive legal protection.

On reading this case-law one is reminded of the statement of principle in the judgment in Case 25/62: ‘Provisions of the Treaty regarding the right of interested parties to bring an action must not be interpreted restrictively’. But then, in order to give a specific meaning to this statement, one will also find oneself bound to pose the question whether Community law does not allow a similarly wide interpretation of the concept of a decision, that is to say, a solution of the problem of classification raised by the second paragraph of Article 173 which does not follow the lines of strict legal theory which I have just indicated.

It seems to me that our case-law offers some guidance in answering this question. At least the expressions used in some of the relevant judgments lend support to a flexible treatment of the question of delimitation. Thus, according to the judgment in Cases 16 and 17/62, when a measure ‘is applicable … to a limited number of persons, defined or identifiable’ it is not a regulation; private persons can institute annulment proceedings against measures ‘which affect them in a similar manner’ to individual decisions addressed to them; and it is expressly stated: ‘In order to determine in doubtful cases whether one is concerned with a decision or a regulation, it is necessary to ascertain whether the measure in question is of individual concern to specific individuals’. Similarly, in Case 25/62: ‘In order to determine whether or not a measure constitutes a decision one must inquire whether that measure concerns specific persons’, for what characterizes a decision is the fact that it is directed to a limited number of persons. Finally, in the most recent relevant judgment, in Case 30/67, it is pointed out that it may happen that: ‘A measure which, taken as a whole, has the characteristics of a regulation … may nevertheless contain provisions addressed to specific persons in such a way as to distinguish them individually in the sense of the second paragraph of Article 173 of the Treaty’ and the question is raised whether ‘the interests of certain named or identifiable persons are affected by the contested measure’.

In tact, therefore, there would appear to be a number of reference points which make it possible to resolve in a reasonable manner the problem of classification which concerns us, taking due account of legitimate interests entitled to legal protection without creating the danger of granting a right of action to all and sundry.

Let us see, therefore, what solution in this case appears appropriate in the light of the foregoing considerations. In this connexion we should bear in mind the following.

The contested Article provides, I repeat, that as from 1 January 1970 the obligation to buy in raw beet sugar at the intervention price will cease to exist, and so also therefore will the sales guarantee for producers of raw beet sugar at the intervention price. As the Council rightly points out, there is no doubt that this measure concerns, in all its direct and indirect effects, a large number of persons affected by the sugar market, including processing undertakings and even consumers. But for the purpose of our examination this is not conclusive. We must rather inquire whose legal situation is altered and who is affected by the legal effects of the measure. Only the person who is affected in this way can say that the measure ‘applies to him’, that he belongs to the class of persons which is relevant to the question of classification, whilst those who benefit from the measure solely as a result of legal repercussions must of course be left out of account. Once this necessary limitation is applied there in fact only remain, in the sense of persons concerned, in the present case, the national intervention agencies, that is to say, a fixed number of administrative authorities, and the producers of raw beet sugar. We do not know exactly how many they are. The information supplied by the Council was contested by the applicant at the last moment. However, even on the basis of the disputed information supplied by the Council, we are concerned with at most 30 undertakings within the Community. Now whilst, as a matter of pure legal theory, there is no denying that this number may alter in the future, that is to say until the relevant intervention rules cease to have effect, this theoretical possibility (which in fact would make it impossible to address the measure to specific individuals) cannot be decisive; what is decisive is the certain knowledge that, given the previous development of this sector of the economy, the situation actually existing today (excess production in the Community's sugar market) and the legal situation as it will exist in 1970 and which is clearly recognizable, any increase, let alone a considerable increase, in the number of those concerned is wholly unlikely. As the applicant has rightly pointed out, a reduction in numbers is more likely either for economic reasons or for legal reasons (merger of a number of undertakings).

I am convinced that the special features of this case justify our saying that the contested measure produces effects ‘akin to those of a decision’ and our approximating it to a special rule governing an individual case rather than attributing to it a legislative character. We are in fact, as the applicant submits, concerned with the second paragraph of Article 173 and cannot reject the application as inadmissible by referring to the legal nature of the disputed measure.

The Court has already had to examine on a number of occasions the conditions which must exist before it is possible to accept the existence of ‘individual concern’ within the meaning of the second paragraph of Article 173. In this connexion the case-law of the Court has given expression to the following formula: ‘Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them, or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the person addressed’. This definition, perfect or not, has until now certainly proved to be of practical value.

Turning to the facts of the present case, one might perhaps hesitate to speak of ‘attributes peculiar to’ the applicant which could ‘distinguish it individually’ so far as the contested measure is concerned, since the passage quoted rather creates the impression of attributes inherent in specific persons. However, after all that has previously been said in the context of the examination of the legal nature of the contested measure, there can be no doubt that Article 9(3) of the contested regulation affects the applicant by reason of ‘special circumstances’ in which it is ‘differentiated from all other persons’.

They are to be found in its production activity, namely the manufacture of raw beet sugar, which it carries on along with an easily ascertainable, modest number of other Community undertakings and which could be adversely affected by the abolition of the price guarantee for raw beet sugar. Unlike the commercial activity in the sense of Case 25/62, it certainly cannot be said of this activity that it can be ‘exercised at any time by anyone’, since it requires considerable investment which, in view of the criticized abolition of the intervention rules for raw beet sugar, in all probability scarcely anyone will be prepared to undertake.

If one were to extend the class of persons concerned (which on the basis of the concept of damage to interests is undoubtedly justified), that is to say, if one were to include in the persons concerned, not of course the producers of sugar beet (who, as is known, receive a minimum price), but the national intervention agencies, the dealers and processers in this field, it would still not be possible to arrive at a different assessment of the applicant's position, for as regards the question of ‘concern’ it is on any reasonable view necessary to draw distinctions, in any event in so far as there exist substantial differences in the kind of disadvantages which result from the contested measure. In other words, even where the class of persons concerned is large, it may be justifiable to single out a narrower group of persons specially concerned and in their case to speak of particular circumstances which distinguish them individually in the sense of our case-law.

The present case does not give rise to any difficulties on this point as regards distinguishing the applicant from the authorities and persons who benefit from the abolition of the intervention rules, that is to say, the national intervention agencies and the buyers of raw beet sugar. However, it may also seem appropriate to distinguish undertakings which deal solely in raw beet sugar — whether any exist we do not know — and also undertakings which manufacture both raw beet sugar and white sugar, that is, the end product of the processing of raw beet sugar. Compared with these undertakings, the applicant (like other producers of raw sugar) is in fact in a special situation for the reason that the abolition of the sales guarantee for raw beet sugar could threaten its existence. According to the predictions which it is possible to make today in view of the excess of sugar production within the Community and the world market prices which are below the Community level (thus discouraging exports), the possibility cannot be excluded that the abolition of the intervention rules in respect of raw beet sugar in 1970 could entail serious economic difficulties for the applicant, since on the one hand it is still obliged to pay minimum prices to the beet producers whereas on the other it has no guarantee of being able to sell its products to the processers at reasonable prices which also take account of the costs of transport. Thus it is that the abolition of sales guarantees may give rise to the necessity for reorientations which undoubtedly hit those manufacturing only raw beet sugar much harder than undertakings whose production is mixed, or even dealers.

I would therefore take the view that, no matter how far the class of persons affected by the measure is extended, it seems entirely appropriate to accept that the applicant like other manufacturers of raw beet sugar, is individually concerned in the sense of our case-law.

That the applicant is in addition, as Article 173 also requires, directly concerned, does not call for lengthy comment. In its pleadings and in its oral submissions it has convincingly said all that is necessary on this point, and the Council has made no observations thereon. It is enough that in fact the legal effects of the contested rules will apply to the applicant at the time prescribed without the necessity of any measures of execution.

All told, I see no reason for doubting the admissibility of the application.

This leads me to express the following opinion:

Should the Court not find it preferable to reserve its decision on admissibility for the final judgment pursuant to Article 91(4) of the Rules of Procedure, it should be declared that the application is admissible. At the same time a new time-limit must be prescribed for the Council to lodge a full statement of defence. The decision on costs should only be given in the final judgment.

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( 1 ) Translated from the German.

( 2 ) Allgemeiner Rechtssatz und Einzelakt, Die öffentliche Verwaltung 1964, pp. 522 et seq.

( 3 ) Verwaltungsarchiv 1964, p. 384.

( 4 ) Verwaltungsgerichtshof (Higher Administrative Court), Kassel, Neue Juristische Wochenschrift 1964, p. 564.

( 5 ) Deutsches Verwaltungsblatt 1961, p. 247.

( 6 ) Neue Juristische Wochenschrift 1961, p. 2077.

( 7 ) Verwaltungsarchiv 1964, p. 76.

( 8 ) Entscheidungen des Bundesverwaltungsgerichts 16, p. 312.