JUDGMENT OF 1. 4. 1965 — CASE 40/64 SGARLATA v COMMISSION

In Case 40/64

THE COURT composed of: Ch. L. Hammes, President, A. M. Donner and R. Lecourt, Presidents of Chambers, L. Delvaux (Rapporteur), A. Trabucchi, W. Strauß and R. Monaco, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

The facts and procedure may be summarized as follows:

On 11 September 1964 Mr Sgarlata and 9 other Italian producers of citrus fruits lodged an application at the Registry of the Court for the annulment of the Regulations of the Commission of the EEC dated 16 and 26 June 1964 and published in the Official Journal of the European Communities on 25 and 29 June 1964, fixing the reference prices for lemons, mandarins, clementines and sweet oranges. This application also asks the Court to declare inapplicable Article 11 (2) of Regulation No 23 of the Council of the EEC of 4 April 1962 (Official Journal of 20 April 1962), on the progressive establishment of a common organization of the market in fruit and vegetables, and Regulation No 100 of the Commission of the EEC of 27 July 1962 (Official Journal of 30 July 1962), which lays down the procedure for applying the abovementioned Regulation No 23.

By order of 25 September 1964 the President of the Court allocated the case to the First Chamber for the purposes of conducting any necessary preliminary inquiry. On the same day he designated Judge Delvaux as Rapporteur.

In a memorandum lodged on 21 October 1964 the Commission of the EEC, the defendant, requested the Court to declare the applications inadmissible in accordance with Article 91 of the Rules of Procedure.

The applicants lodged their observations on 19 November 1964.

At its session on 15 December 1964 the Court decided to hear the oral arguments of the parties on the question of admissibility alone.

The public hearing took place on 2 February 1965 and the Advocate-General delivered his opinion on 9 February 1965.

II — Conclusions of the parties

In their application the applicants claim that the Court should:

‘After declaring that this application is admissible, annul the measures contested with all the consequences which that implies; order the defendant to pay the costs.’

In its objection that the application is admissible the defendant contends that the Court should:

‘Give a preliminary ruling on the admissibility of the application in accordance with Article 91 of the Rules of Procedure; Declare that the application is inadmissible and therefore dismiss it; Order the applicants to pay the costs of the proceedings.’

In their observations in reply the applicants submit:

‘For these reasons, after formally requesting in the interests of justice that the application be joined to those brought by the Italian Government for the same purposes, this request being made only in order to bring the arguments together at one and the same hearing, we hope that the Court, after rejecting the claim by the opposing party that the case is inadmissible, will in accordance with Article 91 (4), second subparagraph, of the Rules of Procedure or at least after refusing to rule on the defendant's request as to inadmissibility, reserve its decision. We reserve all our rights and also request that the defendant be ordered to pay the costs.’

III — Submissions and arguments of the parties on the objection of inadmissibility

The submissions and arguments of the parties may be summarized briefly as follows:

A —) The applicant asserts in their request that since the contested measures were adopted in the form of ‘regulations’ the application seems at first sight inadmissible, but that the soundness of an objection of inadmissibility may only be apparent.

1) It follows from the precise definition of the word ‘regulation’ given in Articles 189 of the EEC Treaty and 161 of the EAEC Treaty that a measure should not be acknowledged as a regulation, even though published under this name, if its contents are not of a legislative nature, in other words if they are not general and abstract in scope. This also follows from the indications in the case-law of the Court in its two judgments of 14 December 1962, the first one in the case Confederation nationale des producteurs de fruits et légumes and Others v Council of the EEC, and the second in the case Federation nationale de la boucherie en gros et du commerce en gros des viandes and Others v Council of the EEC. Furthermore the originating power of the Community to make regulations which within the Community amount to laws is vested in the Council alone. The Commission only possesses the power to adopt regulations which are purely implementing regulations. However these implementing regulations may sometimes have a general and abstract nature and, therefore, be legislative in scope. But in this case the contested measures are only concrete administrative acts, applying the legislation to a concrete case, in accordance with what the legislation itself calls for.

2) The applicants then go on to apply this general theory to the case under discussion.

a) The basic rule is contained in Article 11 (2) of Regulation No 23 of 4 April 1962. This provision consists of a specific safeguard clause in favour of market-garden and fruit production in the Community. The operation of this clause (which may involve suspension of imports from third countries or the application of a special countervailing charge) may only take effect if it is established that the Community markets experience or are threatened with serious disturbances resulting from imports coming from third countries at prices lower than the reference price. This rule is undoubtedly general and abstract in scope. This being so, there is no intention of requesting in the present application that the rule be annulled, but only that, in so far as necessary and as a secondary point, it be declared inapplicable within the meaning of Article 184.

b) In order that these provisions be applied and in particular that the reference price be fixed, Article 11 (2) (last subparagraph) makes applicable the procedure set out in Article 13 which gives the Commission the necessary powers after considering the opinion of the Management Committee mentioned in Article 12. The Commission was applying these special provisions when it adopted Regulation No 100 on 27 July 1962. This Regulation is also general and abstract in scope and it was adopted under a legislative power (that is, a power to adopt implementing regulations), which the Council expressly granted to the Commission. In fact the purpose of Regulation No 100 is inter alia to establish the criteria and the procedures for fixing reference prices. However the present application is not directly aimed at Regulation No 100; it does not request that it be annulled but in making certain submissions simply disputes its validity in accordance with Article 184 with reference both to the requirements of the Treaty and to the provisions of Article 11 of Regulation No 23. From another angle, certain other submissions, whilst not disputing the applicability of Regulation No 100, show that the contested measures have incorrectly applied the rules laid down therein.

c) On the other hand the legislative or, in other words, general and abstract quality of the contested measures must be disputed. They are in fact limited to establishing reference prices by means of a simple practical calculation which can be carried out on the basis of the provisions of Article 2 (2), (3) and (4) of Regulation No 100. These measures cannot contain the qualities of generality and abstractness which, according to the case-law of the Court, characterize regulations made on the basis of Article 189. They consist, on the contrary, of merely taking practical steps towards implementation in order to make applicable other general and abstract rules contained both in Regulation No 23 and in Regulation No 100. The applicants conclude that despite their nomenclature the contested measures are not in the nature of regulations within the meaning of Article 189 in that they are not legislative in scope, but institute a limited concrete measure for carrying out a legislative precept. Similarly these measures are not abstract or even general in scope because they are nothing more than a purely factual statement and because the persons to whom they are addressed are certainly identifiable and can only be the Member States which import the products in question from third countries.

3) It remains to be shown that the contested measures (which in fact amount to a decision addressed to Member States) concern the applicants directly and individually. In this connexion it may be observed that Article 11 (2) of Regulation No 23 provides a safeguard clause in favour of producers of fruit and market-garden produce in the Community. Therefore the applicants are beneficiaries of this provision. Suppose for example that the Commission had not taken the necessary measures for fixing the reference prices, thus infringing the last subparagraph of Article 11 (2) mentioned above: the safeguard clause contained in Article 11 would have been practically inapplicable so that it would have been impossible to refuse to allow the persons concerned to bring an application for failure to act under Article 175. The contested measures which have fixed a reference price well below the one which ought to have been fixed (as will be made clear later by means of various submissions) have practically deprived the persons concerned of the safeguard which Article 11 (2) guaranteed them. In fact whether the safeguard clause cannot apply because of failure to fix a reference price, or whether it cannot be effective because of fixing too low a reference price, the practical result is the same for the persons concerned. In both the former case and in the latter they will be forced to sell their products at ridiculously low prices or simply not bother to harvest them. Therefore it cannot be denied that the applicants, who are growers and sellers of citrus fruits or represent associations of growers of citrus fruits, have a real and direct interest in contesting the measures in question. The central effect of the measures is in fact to deprive the applicants of the benefits of the safeguard clause which Regulation No 23 was intended to guarantee to them. They suffer direct and individual loss by reason of the contested measure in chat they are injured not as a class, but as individual producers. According to the applicants the words “direct and individual” contained in the second paragraph of Article 173 only mean that the applicant must be in possession of a right to act which must not be generic, but direct, personal and present (argument a contrario of the judgment of 25 July 1963, Plaumann & Co. v Commission of the EEC). Finally the applicants use the argument that if their applications were declared inadmissible, they would find themselves deprived of any legally enforceable guarantee.

B —)

1) The defendant, in its objection of inadmissibility, embarks on a refutation of the arguments advanced by the applicants which attempt to show that their application is admissible.

a) According to the applicants the provisions which they dispute cannot be general and abstract in scope because they are limited to stating reference prices by means of a simple practical calculation to be made on the basis of criteria in Regulation No 100. It is said that they consist “of merely taking practical steps towards implementation in order to make applicable other general and abstract rules contained either in Regulation No 23 or in Regulation No 100.” The defendant does not agree that something merely practical is involved. In the first place it is not correct to say that the Commission must undertake with the help of the Management Committee a simple practical calculation in accordance with the requirements of the two Regulations; these leave a considerable margin of discretion in assessing the situation on the market and determining the reference price. But even if it had to follow rigid criteria which did not permit any freedom of judgment, the measure of the Community body would still remain a legal measure producing compulsory effects for the Community bodies, Member States, and those concerned with the economy. In fact it determines the nature of the further measure whereby the Commission, after consulting the Management Committee, or possibly the Council in cases of conflict between the Commission and the Committee, decides to suspend imports or to introduce the countervailing charge. Furthermore it subjects Member States (including those which otherwise would have no intention at all of applying the safeguard measures on imports entering from third countries) and private importers to the Community power to order that imports be suspended or that the countervailing charge be levied when entry prices fall below the reference price so determined. Thus the disputed acts have nothing to do with non-compulsory statements such as for example an expert's report or the recommendation of a technical body, which a public authority takes note of before taking a given measure. Such fact-finding reports or recommendations do not have any compulsory effect, whereas on the contrary the Regulations at issue do have such an effect. Besides if the measures in question really consisted “of merely taking practical steps towards implementation” not only would they not be regulations, but they would not be decisions within the meaning of Article 189 of the Treaty either. They would not be subject to the requirements that they be published and that they should state the reasons on which they are based or to review by the Court etc.; and it does not seem that the applicants wish to arrive at such a conclusion.

b) According to the applicants the EEC Treaty gives “originating” legislative power to the Council alone, which means that it gives to it alone authority to put the principles which are embodied in the Treaty into effect by means of general and abstract provisions. Apart from the exceptional case of Article 91 (1) the Treaty only gives the Commission “delegated” legislative power, which by virtue of the last part of Article 155 can be exercised only within the limits and according to the rules fixed by the Council in each individual case. Thus it is argued that this power is by its very nature of an exceptional character and that it “should be excluded when it is not explicitly or implicitly conferred by the provisions which assign to the Commission the task of putting regulations adopted by the Council into effect”. If this reasoning be correct it clearly follows “that the measures adopted by the Commission for putting the Regulation in question into effect are not themselves of the nature of regulations despite the nomenclature adopted, but are only of the nature of concrete administrative acts”. The defendant cannot admit that the Treaty denied the Commission originating legislative power. It says that this power is also conferred by provisions of the Treaty other than Article 91 (2), for example in Article 10 (2), the first paragraph of Article 22 and in Article 48 (3) (d). However it does admit that in accordance with Article 43 (2) of the Treaty legislative provisions for introducing the common agricultural policy, including the creation of a common organization of the markets, are adopted by the Council (on a proposal from the Commission and after consulting the European Parliament). The defendant moreover observes that the regulations on agriculture have given powers to the Commission which are themselves in the nature of powers to make regulations. This leads the defendant to say that even if it be admitted that in the present case we are concerned with a “delegated” power (in the sense that it is not based directly on the Treaty but on regulations based in their turn on Article 43 of the Treaty) there is nothing to show why the provision creating this power must be considered as exceptional and must be interpreted restrictively. Article 43, which provides for the creation of a common “organization” of agricultural markets, requires not only that a set of legal provisions be prepared, but also that “institutions” be designated and given the task of putting the provisions into effect; this involves giving very wide powers to them, particularly to the Commission, including the power to draw up the. necessary implementing regulations. This authority is not an exceptional one but an ordinary one when it is remembered that it is the last indent of Article 155 which makes it possible for the Council to confer unlimited powers on the Commission for the implementation of the rules which the Council lays down. So far as applying Article 43 is concerned there was moreover an urgent and pressing need for a body capable of adopting the necessary provisions for bringing the common organization of agricultural markets into being speedily while keeping in contact with the national administrations concerned. Finally it is easy to show that it is for the Commission to fix the reference prices for fruit and vegetables after consulting the Management Committee. In the first place this power flows from the fourth subparagraph of Article 11 (2) of Regulation No 23, and is confirmed by Article 1 (1) of Regulation No 100. The Commission is not subjected to any restriction as to what form to give to the provision. And since it clearly consists of a provision which is general in scope the Commission obviously has the power to give it the form of a regulation. Thus the contested measures are regulations and as such are not open to direct challenge by individuals.

c) The efforts of the applicants to show that the Regulations which they dispute were in fact decisions addressed to Member States are of no avail because, for them to obtain the benefit of the second paragraph of Article 173, they would have had to show that they were dealing with decisions which, although made in the form of a regulation, are of “direct and individual concern” to them. The defendant observes that recourse to the concept of a legal interest in taking proceedings is considered unacceptable in the opinions of Mr Advocate-General Lagrange (Rec. 1962, pp. 932 et seq.) and Mr Advocate-General Roemer (Rec. 1964, p. 833). Thus the limitations prescribed by Article 173 on direct proceedings by private persons against measures of the institutions have a precise meaning, and they cannot be whittled away by interpretation, as the applicants would like. The applicants do not bring forward any fresh fact enabling their case to be distinguished from the Plaumann and Glucoseries Réunis cases. On the contrary since they are content to say that the contested provisions injure them individually, “not as a class, but as individual producers”, they seem to be simply unaware of the abovementioned case-law and to wish to strip the condition requiring individual concern of all effective significance. It is not enough to say that various producers of citrus fruits suffer the effects which the contested provisions may have on the situation in the market. What matters is whether they can be seen to suffer individually, because of matters appertaining to them personally, or because of their belonging to one economic sector. It cannot be said that the contested provisions were adopted with any particular producer of citrus fruits in mind. Moreover it would be wrong to think that the said provisions only concern those who fall into the class of producers of citrus fruits. In fact these Regulations concern everybody who is interested in these products (importers directly and exporters, producers and even consumers indirectly).

2) In support of its submission of inadmissibility, the defendant reminds the Court of its case-law on the interpretation of the second paragraph of Article 173 of the EEC Treaty.

a) If the contested instruments are indeed regulations the Court has decided that “natural or legal persons are not entitled to make an application for the annulment of regulations adopted by the Council or the Commission” (judgment of 14 December 1962Confederation nationale des producteurs de fruits et légumes v Council of the EEC, Rec. 1962, p. 917 and judgment of 14 December 1962Fédération nationale de la boucherie en gros des viandes v Council of the EEC, Rec. 1962, p. 958), According to the defendant moreover, it is not possible to dispute the general scope of the disputed Regulations which in fixing the reference price for certain agricultural products establish the conditions for a general prohibition on imports, or the fixing of one and the same countervailing charge for the whole Community, payable by any person importing these products into the Community from third countries.

b) Even if the contested instruments are decisions addressed to the Member States and of such a nature as to concern all producers of citrus fruits in the Community, the applicant must be declared inadmissible in accordance with the case-law of the Court according to which “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” (judgment of 15 July 1963, Plaumann & Co. v Commission of the EEC, Rec. 1963, p. 223 and judgment of 2 July 1964, Glucoseries Réunies v Commission of the EEC, Rec. 1964, p. 823). The defendant asserts that the contested measures are not of “individual” concern to the applicants. In fact, according to the defendant, apart from Member States the measures in question concern the large class of importers of citrus fruits from third countries, in so far as they are affected by a prohibition or a charge on imports, should the entry price go below the reference price. The provision indirectly affects exporters in third countries and, because of the indirect effect on prices in the market, consumers and producers of citrus fruits within the Community as well. Not only are very large classes affected but, more importantly, these classes are determined in an abstract and general way so that any particular person belonging to one of these classes cannot say that he is concerned individually. Finally neither the applicants nor any other particular persons were considered in the contested provisions in the light of a situation peculiar to them. Therefore the applicants are not affected individually, but only by reason of their membership of the group, defined in an abstract way, of all those persons who may wish to import, export, produce or consume citrus fruits in the Common Market during the 1964-1965 season.

C —) The applicants reply in their memorandum of submissions:

that the objection of inadmissibility which has been raised is not well-founded;

that in order to reach a decision on the problem which has been raised it is necessary to examine the questions of inadmissibility and substance together;

that in spite of the applications against the same measures by the Italian Government it would be convenient to allow the applicants to put forward their submissions in defence as to substance, both in writing and orally.

1)

a) In order to show that the contested measures are not regulations, the applicants go back over the arguments set out in their application, supplying greater detail. Regulation No 23 of the Council of the EEC (Official Journal of 20 April 1962) on the progressive establishment of a common organization of the market in fruit and vegetables, gave the Commission (last subparagraph of Article 11 (2)) the necessary powers for adopting an implementing regulation intended to lay down the methods of application. But this delegated legislative power was extinguished by the Commission when it adopted Regulation No 100 (Official Journal of 30 July 1962), and cannot be resurrected in a chain of regulations going beyond the authority conferred. The contested measures cannot be classed in substance as legislative provisions because they do not contain rules whose exclusive feature is that they do not at once solve a concrete case but rather enable concrete cases to be solved. In reality the contested measures have as their object and effect the solving of a concrete case by applying the abstract provisions resulting from the legislative measures laid down in Regulation No 23 of the Council of the EEC and in Regulation No 100 of the Commission of the EEC.

b) Next, the applicants assert that the contested measures are of direct and individual concern to them. In the judgments cited by the defendant the Court had to give decisions on entirely different sets of facts. The provisions of Article 11 (2) of Regulation No 23, and therefore the provisions found in the implementing Regulation No 100, were adopted in the exclusive interest of the various producers of fruit and vegetables in the Community. The “Schutzgesetztheorie” which contemplates legislation expressly adopted with a view to protecting a right or an interest considered directly is thus relevant in this case. It cannot in fact be denied that the safeguard clause laid down in Article 11 (2) is intended to protect fruit and vegetables, and therefore the producers. The legislative provision laid down in this Article is indeed a general and abstract provision, as are those laid down in Regulation No 100, with a view to setting out in detail the criteria and procedure to be adopted for fixing different reference prices applicable to each fruit and market-garden product. Thus it cannot be denied that the measure fixing the reference prices of oranges, lemons, mandarins and Clementines is aimed directly and individually at the various producers of oranges, lemons, mandarins and Clementines. At this point the general and abstract legislative provisions contained both in Regulation No 23 and in Regulation No 100 assume an individual character, so to speak, as regards the persons directly concerned. In its judgment of 15 July in the case of Plaumann v Commission of the EEC the Court of Justice declared that an application brought by an importer of citrus fruit was inadmissible, taking the view that the measure affected the applicant in his capacity as an importer, “that is to say, by reason of a commercial activity which may at any time be practised by any person and is not therefore such as to distinguish the applicant in relation to the contested Decision as in the case of the addressee”. Thus in the case now under discussion the producers of citrus fruits must be owners or cultivators of a holding where citrus fruits are produced. This activity cannot be carried out by anybody, but only by those who are actual or potential beneficiaries of the measures of protection laid down in Article 11 of Regulation No 23. It is certain that a refusal of, or an inadequate grant of, this protection harms not a general interest, but the direct and individual interest of the various producers of citrus fruits both as individual producers and as a class. The applicants also point out that it would certainly not have been possible to declare inadmissible an application brought by them under Article 175, if the Commission had failed to fix any reference price at all for citrus fruits. For in such a case first the infringement of an obligation placed on the Commission by the terms of Article 11 of Regulation No 23 and by Regulation No 100 would have been obvious, and secondly it would not have been possible to say that the persons concerned, unjustly deprived of the protection which the regulations in question give them, did not have a direct and individual interest. Furthermore if the Commission had explicitly rejected the request calling upon it to act (second paragraph of Article 175) and asking it to fix the reference prices in accordance with the obligation laid on it, the persons concerned would indisputably have had the right to contest the measure containing the explicit refusal under Article 173, since they would have been victims of direct and individual damage. This leads to the applicant's argument that fixing the reference price too low is in practice equivalent to not fixing any reference price at all. Furthermore no reference price for oranges was fixed during the month of December. In view of the fact that an application brought under Article 175 would certainly have been admissible against a refusal to fix reference prices, just as an application brought under Article 173 would have been, why should an application brought against measures having a substantially analogous and, in part, absolutely identical effect to that of not fixing a reference price at all be considered inadmissible? The Court has often shown itself to attach much more importance to substance than to outward form. It is for just this reason that the applicants hope it will see fit not to alter but to complement and clarify its earlier case-law, and thus see its way to declaring that the present application is admissible. Otherwise it would be necessary to suppose that in order to overcome obstacles of form the procedure under Article 175 should necessarily have been adopted. Thus the Commission should have been called upon to fix a reference price in accordance with the obligation placed on it by Regulation No 100. Then either its implicit decision refusing to do so should have been contested under Article 175, or its explicit refusal should have been contested under Article 173. The applicants also analyse the opinion of Mr Advocate-General Roemer in Case 1/64, and point out that the decision contested in that case not only affected the Belgian producer who brought the case (whether or not he was the sole Belgian producer of glucose is of little importance), but also any producer of glucose in the other Member States, and any exporter, importer or even trader. For these reasons Mr Advocate-General Roemer asserted that “the number of possible parties concerned thus becomes not merely larger, but illimitable and therefore unascertainable”. However the persons concerned can be determined in the present case with precision. They are only and exclusively the producers of oranges, lemons, mandarins and clementines, that is to say solely and exclusively the owners or cultivators of citrus fruit plantations. They may be more or less numerous; but given enough effort they could be counted. Thus we are not here considering an illimitable and unascertainable class of persons concerned. By parity of reasoning the fact that not all the producers of citrus fruit have made applications does not matter, because it is enough to find that the applicant has a direct, individual and present interest.

2) The applicants then allege that in their application the questions of admissibility are linked to questions concerning the substance of the case, and in particular to the answer to be given to the following questions:

a) Does Article 11 of Regulation No 23 require that the alternative measures of protection laid down be adopted?

b) Does Regulation No 100 give or not give a discretionary power to the Commission?

c) Do the contested measures have or do they not have compulsory effect as regards importers from third countries?

d) Are the contested measures exclusively directed at protecting the production of citrus fruit, and are they therefore of such a nature as to cause a direct injury only and exclusively to a right or an interest of the producers of citrus fruit?

e) Does the fixing of an abnormally low reference price have the same economic consequences as a failure to fix any reference price at all?

f) Is the effect of the safeguard clause contained in Article 11 of Regulation No 23 and, therefore, the protection of Community citrus fruit as regards imports from third countries definitely excluded in one or the other of the cases set out above? Furthermore it is only when the substance of the matter is examined that it can be shown that the protection system has not worked effectively for table grapes in one of the States of the Community because it was incorrectly applied. Such an examination would be the only means of deciding whether the action of the Commission and of the Member States can guarantee sufficient protection both to private interests and private persons and to the general interests of Member States without being subject to review by the Court of Justice at the behest of the private persons affected. The applicants add that although the judgments of 14 December 1962Confédération nationale des producteurs de fruits et légumes and Others v Council of the EEC and of 15 July 1963Plaumann & Co. v Commission of the EEC resulted in the applications' being declared inadmissible, this was only after an exhaustive discussion as to substance. They conclude that for these same reasons the decision on the objection of inadmissibility should be reserved for the final judgment in the present case.

3) Finally the applicants allege that while the Italian Government has brought applications against the same measures, it is nevertheless to be observed that the submissions put forward are only partially the same. The interests of the applicants do not differ in the present case from those of the Italian Government, but it must be recognized that it is the person who is directly concerned who can best dedend his own interests. For example, the individuals concerned are not responsible for the behaviour of government officials when Regulation No 23 or Regulation No 100 was adopted. Therefore they are entirely free to ask for a declaration that Article 11 (2) of Regulation No 23 and Regulation No 100 are inapplicable. For obvious reasons these submissions cannot be made by the Italian Government, which has limited itself to denouncing a certain number of specifically inherent defects in the contested measures. This leads the applicants to assert that it is useful to be able to have all the aspects of the problem brought out before the Court so as to enable it to reach its decided view in full knowledge of the facts.

Grounds of judgment

I — Admissibility

The defendant contends that the application is inadmissible on the ground that the measures fixing the reference prices for lemons, mandarins, clementines and sweet oranges are regulations.

The applicants take the contrary view, namely that the said measures, although adopted in the guise of regulations, are in reality decisions of direct and individual concern to them.

Without its being necessary to examine the nature of the contested measure it is in this instance sufficient to decide whether this measure is of direct and individual concern to the applicants within the meaning of the second paragraph of Article 173 of the EEC Treaty.

In order to be individually concerned the person making the application must have been affected by the measure in question by reason of certain attributes which are peculiar to him or by reason of circumstances in which he is differentiated from all other persons and by virtue of these factors must have been distinguished individually just as in the case of the person addressed.

According to the terms of Article 11 of Regulation No 23 of the Council of the EEC: ‘where Community markets experience or are threatened with serious disturbances resulting from imports from third countries at prices lower than the reference price, Member States may suspend these imports or impose upon them a countervailing charge, which shall be the same for all Member States payable on entry’.

According to this same provision: ‘The Management Committee: shall decide upon the suspension of imports and the fixing of the amount of the countervailing charge, in accordance with the procedure laid down in Article 13 …’.

In accordance with Regulation No 100 of the Commission laying down the detailed rules for applying Article 11 (2) of Regulation No 23, a reference price shall be the same in all Member States and shall be fixed every year by product, by variety or by group of varieties.

It follows from the provisions referred to above that the reference price constitutes a general criterion, adopted in the public interest with a view to facilitating commercial transactions and to stabilizing prices on the markets. This criterion limits the powers whereby the Commission and the Member States can discourage the importation of the said products by measures for safeguarding the common agricultural market.

The annual and uniform fixing of reference prices forms a basis for freedom of action in the import business and in business generally. Therefore the fixing of reference prices does not concern the applicants individually but is directed to a multiplicity of citizens of the Community as a whole.

Finally Regulations 65/64/EEC, 66/64/EEC and 74/64/EEC do no more than fix reference prices to the exclusion of any other provision of such a nature as to concern the applicants directly and individually. Therefore these Regulations cannot, as regards any of their provisions, be the subject-matter of an application brought by the applicants.

The applicants object that, if recourse to Article 173 were to be refused by reason of a restrictive interpretation of its wording, individuals would thus be deprived of all protection by the courts both under Community law and under national law, which would be contrary to the fundamental principles governing all the Member States.

However these considerations, which will not be discussed here, cannot be allowed to override the clearly restrictive wording of Article 173, which it is the Court's task to apply.

Having regard to the formal wording of this text it matters little whether the contested measure is attributable to a direct power of the Commission or only to a derived or delegated power.

It follows from all the above considerations that the application must be declared inadmissible.

II — Costs

Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay tie costs.

In this case the applicants have failed in their action and must bear the cost of the proceedings.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to Articles 173 and 189 of the EEC Treaty; Having regard to the Protocol on the Statute of the Court of Justice of the EEC; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; Having regard to Regulation No 23 of the Council of the EEC dated 4 April 1962 and to Regulation No 100 of the Commission of the EEC dated 27 July 1962; THE COURT hereby:

1 Dismisses Application 40/64 as inadmissible;

2 Orders the applicants to pay the costs.