61962J0019

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1 . PROCEDURE - APPLICATION FOR ANNULMENT - APPLICATION BY NATURAL AND LEGAL PERSONS AGAINST EEC REGULATIONS - ADMISSIBILITY

( EEC TREATY, ARTICLE 173 )

2 . PROCEDURE - APPLICATION FOR ANNULMENT - DECISION WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY - CONCEPT

( EEC TREATY, ARTICLES 173 AND 189 )

3 . ADMINISTRATIVE MEASURES - MEASURES OF THE INSTITUTIONS OF THE EEC - DECISION AND REGULATION - DISTINCTION - CRITERIA

( EEC TREATY, ARTICLE 189 )

4 . ADMINISTRATIVE MEASURES - NATURE - CRITERIA

( EEC TREATY, ARTICLES 173 AND 189 )

5 . PROCEDURE - APPLICATION FOR ANNULMENT - APPLICATION BY NATURAL AND LEGAL PERSONS - REGULATIONS - PROVISIONS HAVING THE NATURE OF A DECISION - ADMISSIBILITY

( EEC TREATY, ARTICLE 173 )

6 . PROCEDURE - APPLICATION FOR ANNULMENT - EEC ACTS - PERSONS INDIVIDUALLY CONCERNED - MEASURES AFFECTING THE GENERAL INTERESTS OF A CATEGORY OF NATURAL OR LEGAL PERSONS - ASSOCIATION REPRESENTING THAT CATEGORY

( EEC TREATY, ARTICLE 173 )

1 . NATURAL AND LEGAL PERSONS OTHER THAN MEMBER STATES ARE NOT ENTITLED TO MAKE AN APPLICATION FOR ANNULMENT OF REGULATIONS ADOPTED BY THE COUNCIL OR THE COMMISSION .

2 . THE TERM 'DECISION' USED IN ARTICLE 173 HAS THE TECHNICAL MEANING EMPLOYED IN ARTICLE 189, WHICH IN PARTICULAR MAKES A CLEAR DISTINCTION BETWEEN THE CONCEPT OF A 'DECISION' AND THAT OF A 'REGULATION '.

3 . THE CRITERION FOR THE DISTINCTION BETWEEN THE TERMS 'DECISION' AND 'REGULATION' SHOULD BE SOUGHT IN THE GENERAL 'APPLICATION' OR OTHERWISE OF THE MEASURE IN QUESTION .

A DECISION IS OF INDIVIDUAL CONCERN TO SPECIFIC INDIVIDUALS; ITS ESSENTIAL CHARACTERISTICS ARISE FROM THE RESTRICTION OF THE CLASS OF PERSONS TO WHOM IT IS ADDRESSED .

A REGULATION, BEING ESSENTIALLY OF A LEGISLATIVE NATURE, IS NOT ADDRESSED TO A RESTRICTED NUMBER OF PERSONS, DEFINED OR INDENTIFIABLE, BUT APPLIES TO OBJECTIVELY DETERMINED SITUATIONS . IT INVOLVES IMMEDIATE LEGAL CONSEQUENCES IN ALL MEMBER STATES FOR CATEGORIES OF PERSONS VIEWED IN A GENERAL AND ABSTRACT MANNER .

4 . THE DETERMINATION OF THE LEGAL NATURE OF A MEASURE EMANATING FROM THE COUNCIL OR THE COMMISSION DOES NOT DEPEND ONLY ON ITS OFFICIAL DESIGNATION, BUT SHOULD FIRST TAKE INTO ACCOUNT ITS OBJECT AND CONTENT .

5 . WHEN A MEASURE, WHICH AS A WHOLE CONSTITUTES A REGULATION, INCLUDES PROVISIONS WHICH ARE CAPABLE OF BEING OF DIRECT AND INDIVIDUAL CONCERN TO CERTAIN NATURAL OR LEGAL PERSONS, SUCH PROVISIONS DO NOT HAVE THE CHARACTER OF A REGULATION AND MAY THEREFORE BE IMPUGNED BY THOSE CONCERNED .

6 . AN ASSOCIATION WHICH REPRESENTS A CATEGORY OF NATURAL OR LEGAL PERSONS IS NOT CONCERNED INDIVIDUALLY BY A MEASURE AFFECTING THE GENERAL INTERESTS OF THE PERSONS IN THAT CATEGORY .

IN JOINED CASES 19 TO 22/62

19/62 - FEDERATION NATIONALE DE LA BOUCHERIE EN GROS ET DU COMMERCE EN GROS DES VIANDES, HAVING ITS HEAD OFFICE AT 59 RUE SAINT-LAZARE, PARIS, REPRESENTED BY JACQUES LASSIER, ADVOCATE OF THE PARIS COUR D'APPEL,

20/62 - STICHTING VOOR NEDERLANDSE ZELFSTANDIGE HANDEL EN INDUSTRIE, HAVING ITS HEAD OFFICE AT 4 WASSENAARSEWEG, THE HAGUE, REPRESENTED BY JACQUES LASSIER, ADVOCATE OF THE PARIS COUR D'APPEL, AND BY HARALD DITGES OF COLOGNE,

21/62 - SYNDICAT DE LA BOUCHERIE EN GROS DE PARIS, HAVING ITS HEAD OFFICE AT THE LA VILLETTE SLAUGHTERHOUSES, 28 AVENUE CORENTIN - CARIOU, PARIS, REPRESENTED BY JACQUES LASSIER, ADVOCATE OF THE PARIS COUR D'APPEL,

ALL WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT, ADVOCATE OF THE COURT OF LUXEMBOURG, 4 BOULEVARD JOSEPH-II,

22/62 - ZENTRALVERBAND DES DEUTSCHEN GETREIDE -, FUTTER - UND DUNGEMITTELHANDELS E . V ., HAVING ITS HEAD OFFICE AT 2-4 OLBERG-STRASSE, BONN, REPRESENTED BY ITS PRESIDENT, RUDOLF SCHWARZE, ASSISTED BY HARALD DITGES OF COLOGNE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR AUDRY, FEDERATION DES COMMERCANTS, 8 AVENUE DE L'ARSENAL, APPLICANTS,

V

COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY, PROVISIONALLY ESTABLISHED AT BRUSSELS, REPRESENTED IN CASES 19, 20 AND 21/62 BY ITS LEGAL ADVISER, JACQUES MEGRET, ACTING AS AGENT, AND IN CASE 22/62 BY ITS LEGAL ADVISER, ERNST WOHLFARTH, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF THE SECRETARIAT GENERAL OF THE COUNCILS OF MINISTERS, 3-5 RUE AUGUSTE-LUMIERE, DEFENDANT,

APPLICATION FOR ANNULMENT OF THE SECOND SENTENCE OF ARTICLE 2 ( 1 ) OF REGULATION N . 26 OF THE COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY,

P . 497

I - AS TO ADMISSIBILITY

1 . UNDER THE TERMS OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY, ANY NATURAL OR LEGAL PERSON MAY INSTITUTE PROCEEDINGS AGAINST AN ACT OF THE COMMISSION OR THE COUNCIL ONLY IF THAT ACT CONSTITUTES EITHER 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 . IT FOLLOWS THAT SUCH A PERSON IS NOT ENTITLED TO MAKE AN APPLICATION FOR ANNULMENT OF REGULATIONS ADOPTED BY THE COUNCIL OR THE COMMISSION .

P . 498

THE COURT ADMITS THAT THE SYSTEM THUS ESTABLISHED BY THE TREATIES OF ROME LAYS DOWN MORE RESTRICTIVE CONDITIONS THAN DOES THE ECSC TREATY FOR THE ADMISSIBILITY OF APPLICATIONS FOR ANNULMENT BY PRIVATE INDIVIDUALS . HOWEVER, IT WOULD NOT BE APPROPRIATE FOR THE COURT TO PRONOUNCE ON THE MERITS OF THIS SYSTEM WHICH APPEARS CLEARLY FROM THE TEXT UNDER EXAMINATION .

THE COURT IS UNABLE IN PARTICULAR TO ADOPT THE INTERPRETATION SUGGESTED BY ONE OF THE APPLICANTS DURING THE ORAL PROCEDURE, ACCORDING TO WHICH THE TERM 'DECISION', AS USED IN THE SECOND PARAGRAPH OF ARTICLE 173, COULD ALSO COVER REGULATIONS . SUCH A WIDE INTERPRETATION CONFLICTS WITH THE FACT THAT ARTICLE 189 MAKES A CLEAR DISTINCTION BETWEEN THE CONCEPT OF A 'DECISION' AND THAT OF A 'REGULATION '. IT IS INCONCEIVABLE THAT THE TERM 'DECISION' WOULD BE USED IN ARTICLE 173 IN A DIFFERENT SENSE FROM THE TECHNICAL SENSE AS DEFINED IN ARTICLE 189 . IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE PRESENT APPLICATIONS SHOULD BE DISMISSED AS INADMISSIBLE IF THE MEASURE IN DISPUTE CONSTITUTES A REGULATION .

IN EXAMINING THIS QUESTION, THE COURT CANNOT RESTRICT ITSELF TO CONSIDERING THE OFFICIAL TITLE OF THE MEASURE, BUT MUST FIRST TAKE INTO ACCOUNT ITS OBJECT AND CONTENT .

2 . UNDER THE TERMS OF ARTICLE 189 OF THE EEC TREATY, A REGULATION SHALL HAVE GENERAL APPLICATION AND SHALL BE DIRECTLY APPLICABLE IN ALL MEMBER STATES, WHEREAS A DECISION SHALL BE BINDING ONLY UPON THOSE TO WHOM IT IS ADDRESSED . THE CRITERION FOR THE DISTINCTION MUST BE SOUGHT IN THE GENERAL 'APPLICATION' OR OTHERWISE OF THE MEASURE IN QUESTION .

THE ESSENTIAL CHARACTERISTICS OF A DECISION ARISE FROM THE LIMITATION OF THE PERSONS TO WHOM IT IS ADDRESSED, WHEREAS A REGULATION, BEING ESSENTIALLY OF A LEGISLATIVE NATURE, IS APPLICABLE NOT TO A LIMITED NUMBER OF PERSONS, DEFINED OR IDENTIFIABLE, BUT TO CATEGORIES OF PERSONS VIEWED ABSTRACTLY AND IN THEIR ENTIRETY . CONSEQUENTLY, 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 .

IN THESE CIRCUMSTANCES, IF A MEASURE ENTITLED BY ITS AUTHOR A REGULATION CONTAINS PROVISIONS WHICH ARE CAPABLE OF BEING NOT ONLY OF DIRECT BUT ALSO OF INDIVIDUAL CONCERN TO CERTAIN NATURAL OR LEGAL PERSONS, IT MUST BE ADMITTED, WITHOUT PREJUDICE TO THE QUESTION WHETHER THAT MEASURE CONSIDERED IN ITS ENTIRETY CAN BE CORRECTLY CALLED A REGULATION, THAT IN ANY CASE THOSE PROVISIONS DO NOT HAVE THE CHARACTER OF A REGULATION AND MAY THEREFORE BE IMPUGNED BY THOSE PERSONS UNDER THE TERMS OF THE SECOND PARAGRAPH OF ARTICLE 173 .

P . 499

3 . IN THIS CASE THE MEASURE IN DISPUTE WAS ENTITLED BY ITS AUTHOR A 'REGULATION '. HOWEVER, THE APPLICANTS MAINTAIN THAT THE DISPUTED PROVISION IS IN FACT 'A DECISION IN THE FORM OF A REGULATION '. IT IS POSSIBLE WITHOUT DOUBT FOR A DECISION ALSO TO HAVE A VERY WIDE FIELD OF APPLICATION . HOWEVER, A MEASURE WHICH IS APPLICABLE TO OBJECTIVELY DETERMINED SITUATIONS AND WHICH INVOLVES IMMEDIATE LEGAL CONSEQUENCES IN ALL MEMBER STATES FOR CATEGORIES OF PERSONS VIEWED IN A GENERAL AND ABSTRACT MANNER CANNOT BE CONSIDERED AS CONSTITUTING A DECISION, UNLESS IT CAN BE PROVED THAT IT IS OF INDIVIDUAL CONCERN TO CERTAIN PERSONS WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 .

IN FACT THIS PROVISION GIVES TO THE CATEGORIES OF PERSONS IT AFFECTS, NAMELY AGRICULTURAL PRODUCERS AND THEIR ASSOCIATIONS, OPERATING IN EACH MEMBER STATE, THE ABILITY TO CONCLUDE AGREEMENTS AND TO ADOPT DECISIONS AND PRACTICES UNDER LESS RESTRICTIVE CONDITIONS THAN WOULD BE OBTAINED FROM A PURE AND SIMPLE APPLICATION OF ARTICLE 85 OF THE EEC TREATY .

IT REMAINS TO BE CONSIDERED WHETHER THE DISPUTED PROVISION IS OF INDIVIDUAL CONCERN TO THE APPLICANTS .

ALTHOUGH THIS PROVISION AFFECTS THE INTERESTS OF TRADERS IN AGRICULTURAL PRODUCTS, AND CONSEQUENTLY THE MEMBERS OF THE APPLICANT ASSOCIATIONS, BY PLACING THEM IN A LESS FAVOURABLE POSITION THAN THAT OF THEIR DIRECT COMPETITORS, THE AGRICULTURAL PRODUCERS, IT MUST BE STATED NEVERTHELESS THAT THE TRADERS WHO ARE MEMBERS OF THE APPLICANT ASSOCIATIONS ARE CONCERNED BY THE SAID PROVISION IN THE SAME WAY AS ALL OTHER TRADERS IN AGRICULTURAL PRODUCTS IN THE COMMUNITY .

MOREOVER, ONE CANNOT ACCEPT THE PRINCIPLE THAT AN ASSOCIATION, IN ITS CAPACITY AS THE REPRESENTATIVE OF A CATEGORY OF BUSINESSMEN, COULD BE INDIVIDUALLY CONCERNED BY A MEASURE AFFECTING THE GENERAL INTERESTS OF THAT CATEGORY . SUCH A PRINCIPLE WOULD RESULT IN THE GROUPING UNDER THE HEADING OF A SINGLE LEGAL PERSON, OF THE INTERESTS PROPERLY ATTRIBUTED TO THE MEMBERS OF A CATEGORY, WHO HAVE BEEN AFFECTED AS INDIVIDUALS BY GENUINE REGULATIONS, AND WOULD DEROGATE FROM THE SYSTEM OF THE TREATY WHICH ALLOWS APPLICATIONS FOR ANNULMENT BY PRIVATE INDIVIDUALS ONLY OF DECISIONS WHICH HAVE BEEN ADDRESSED TO THEM, OR OF ACTS WHICH AFFECT THEM IN A SIMILAR MANNER .

IN THESE CIRCUMSTANCES, IT CANNOT BE ADMITTED THAT THE PROVISION IN DISPUTE IS OF INDIVIDUAL CONCERN TO THE APPLICANTS . IT FOLLOWS THAT THE DEFENDANT WAS CORRECT IN DESIGNATING THE PROVISION IN QUESTION AS A REGULATION .

P . 500

THE PRELIMINARY OBJECTION OF INADMISSIBILITY IS THEREFORE WELL FOUNDED AND THE APPLICATIONS MUST BE DECLARED INADMISSIBLE, WITHOUT ITS BEING NECESSARY TO EXAMINE THE QUESTION WHETHER ASSOCIATIONS ARE ENTITLED TO ACT EACH TIME THEIR MEMBERS ARE ENABLED TO DO SO .

UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE OF THE COURT, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . IN THE PRESENT CASE THE APPLICANTS, HAVING FAILED IN THEIR ACTION, MUST BEAR THE COSTS OF THE PROCEEDINGS .

THE COURT

HEREBY

1 . DISMISSES THE APPLICATIONS AS BEING INADMISSIBLE;

2 . ORDERS THE APPLICANTS TO PAY THE COSTS OF THE PROCEEDINGS .