JUDGMENT OF 13. 3. 1968 — CASE 30/67 MOLITORIA IMOLESE v COUNCIL

In Case 30/67

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

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and Procedure

The applicants, milling undertakings situated in the provinces of Bologna and Ancona, lodged their application at the Court Registry on 18 August 1967.

On 25 September 1967 the Council of the European Communities, the defendant, submitted an objection of inadmissibility based upon the second paragraph of Article 173 of the Treaty and requested that Article 91 of the Rules of Procedure be applied.

The applicants submitted their observations on this objection on 2 November 1967. After hearing the opinion of the Advocate-General, the Court decided to open the oral procedure on the objection of inadmissibility.

The parties presented their oral observations at the hearing on 17 January 1968. The Advocate-General delivered his opinion at the hearing on 8 February 1968.

II — Submissions and arguments of the parties regarding admissibility

In its objection of inadmissibility, the Council of the European Communities, the defendant, recalls the terms of the second paragraph of Article 173 af the EEC Treaty and states that, since the contested measure is in the form of a regulation, the application can be admissible only if it is established that the contested measure is a regulation in appearence only, whereas in fact it is of direct and individual concern to the applicants.

The defendant states, first, that in order to judge whether a measure is in the nature of a regulation, the Court does not rely exclusively upon the official designation of that measure but ascertains whether or not it is of general application. The Council further states that it is a consequence of the case-law of the Court that measures which are of direct and individua concern to certain natural or legal persons may be contested by those persons even if they are contained in a measure which, in other respects, may properly be described as a regulation. Accordingly, the reply to the question whether the contested measure, taken as a whole, is in fact in the nature of a regulation or is merely a decision adopted in the form of a regulation is unnecessary for the purpose of deciding upon the admissibility of an application, as the Court has held in Case 40/64.

In the defendant's view, therefore, it is sufficient, in this case, to examine whether the provisions at issue are such as to be of direct and individual concern to the applicants. In this respect the established case-law of the Court specifies that an act can only be of individual concern to the instigator of an application if it affects him ‘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 distinguishes [him] individually just as in the case of the person addressed’. The Court has not yet been called upon to define the concept ‘direct concern’ in as rigorous a manner as it has done for the concept ‘individual concern’. It has confined itself to a definition of the scope of this expression in a given situation. The reason for this difference lies in the fact that these two conditions are not alternatives, that is to say, that it is not sufficient for one of them alone to be fulfilled for the application to be admissible. On the contrary, they are complementary. As the Court has emphasized in the judgments given in Cases 25/62 and 1/65, if the applicant is not individually concerned, it is pointless to inquire whether the measure affects him directly.

The defendant applies the principles outlined above to the present case and notes in consequence that the regulation at issue concerns the fixing of the prices and principal marketing centres for cereals for the 1967-1968 marketing year and that the provisions whose annulment is requested by the applicants are concerned with the fixing of derived intervention prices for common wheat at two Italian marketing centres, Bologna (the marketing centre having the lowest derived intervention price) and Ancona (one of the principal marketing centres). These prices were fixed by the Council pursuant to Article 4(4) of Regulation No 120/67 on the common organization of the market in cereals. Article 4(1) specifies that these prices shall be fixed in order to guarantee to producers that the market price does not fall below a minimum level'. This assurance is guaranteed by the activity of the intervention agencies, referred to in Article 7 of the same regulation, which are obliged, in the event of certain conditions materializing, to buy in at the intervention price ruling for the marketing centre at which the cereal is offered.

The fixing of intervention prices is therefore one of those operations which are necessary to ensure the proper functioning of one of the principal mechanisms of the common organization of the market, that of intervention by agencies designated by the Member States. The fixing of derived intervention prices is of concern to an indeterminate number of persons affected who cannot be dinstinguished individually as natural or legal persons, but at the very most as abstractly defined categories of persons. This is because this provision is of concern, in the marketing centres for which the prices are fixed, both to the intervention agencies designated by the States, which may buy only at those prices, to producers in the regions around those centres, who are protected by the fixing of intervention prices against falls in market prices below a certain level, and finally to the various categories of industralists and traders whose operations are influenced by the existence of a guaranteed minimum market price.

The defendant, while recognizing that the applicants belong to one of these last categories, in that they are industrial milling undertakings situated at the marketing centres concerned, adds that the line of argument indicated above clearly shows that the measure for the fixing of prices is not of individual concern to them. In effect, the applicants are adversely affected by the provisions at issue by reason only of a commercial activity which, at any given moment, may be undertaken by any person, and whereby they are not therefore differentiated from all other persons, or, accordingly, individually distinguished just as in the case of the person addressed. Moreover, in a previous case, the Court has expressly stated that the fixing of a reference price, in implementation of the provisions of the regulation on the common organization of the market in fruit and vegetables, is not of individual concern to producers of the foodstuffs in question. Although the mechanism of the reference price is not identical to that under discussion in this case, it is nevertheless comparable and is directed to ends which are broadly similar.

What is more, the fact that the application is directed not against all intervention prices but against the derived intervention prices for the Bologna and Ancona marketing centres does not affect the legal argument set out above. The persons to whom the contested measure was addressed are nevertheless abstractly defined and not separately distinguished as individuals, particularly because, in contrast to their statements, the applicants are by no means the ‘necessary’ buyers for wheat produced in the areas where the relevant marketing centres are situated.

The defendant therefore concludes that the provisions at issue are not of individual concern to the applicants and that, accordingly, pursuant to the case-law referred to above, their application is inadmissible. It notes, finally, that according to this case-law, once it is established that the measure at issue is not of individual concern to the applicants it is not necessary to ascertain whether it is of direct concern to them.

It mentions, nevertheless, that the intervention price is paid to producers by the intervention agencies and that it is therefore only indirectly, for example through the influence which it exerts on the market price, that this price may possibly be of concern to undertakings in the processing category:

In their observations on the objection of inadmissibility the applicants reply that the interpretation of the second paragraph of Article 173 of the EEC Treaty advanced by the defendant would, if taken to its logical conclusion, lead to the negation of that provision itself. They allege that the defendant states, on the one hand, that the regulation is addressed to a category of persons, but, on the other hand, claims that membership of that category is a factor of no importance, because it is the consequence of an activity which may be undertaken by any person at any time. This argument leads to the conclusion ‘that, under Community law, the distinction between the legal or natural person as such and such person as characterized by the activities he pursues becomes immaterial in the sense, which is clearly contradictory, that such person is superseded by the category to which he belongs and which is in turn transcended by the fact that all persons may belong to it’.

The applicants further state that, since the provisions of the Treaty create rights and obligations in respect of any interested person who is directly subject to the rules which they establish, reference must be made to the power actually exercised by the Community institution in order to obtain a correct understanding of the words ‘of direct and individual concern’. The important factor is not the abstract objective of the provision, but the actual objective. Seen in this light, the objective purpose of the measure is expressed in the obligation imposed upon the millers of Bologna and Ancona to pay a specified and unchangeable producer price. The miller is. concerned directly, first, by reason of the geographical location, secondly, because it is he who must pay the price out of his own funds and, finally, because between him and the producer there is no intermediate third party, in the sense that the contested provision directly determines the economic value of the obligation which arises as between the miller as transferee and the producer as transferor.

The applicants further note that the Court has made an analysis, in relation to Article 33 of the ECSC Treaty, of the concept ‘of direct and individual concern’ and has decided, in its judgment in Joined Cases 7 and 9/54, that, in order to be entitled to bring an action, it is sufficient that the undertaking should have a legal interest in taking action, and that it is not strictly necessary that the contested decisions should have been addressed to the applicant undertaking. The applicants consider, with the support of legal doctrine, that there is general agreement on the fact ‘that the essential scope both of the second paragraph of Article 33 of the ECSC Treaty and of the second paragraphs of Article 173 of the EEC Treaty and Article 146 of the EAEC Treaty is the same for practical purposes and that the adjectives “direct” and “individual” are intended to specify the necessity for the existence of a direct and immediate interest on the part of the applicant’. They believe they have demonstrated, in the light of the arguments expounded above, that the Court cannot accept the Council's argument that the individuality of the applicants' situation, arising from the existence of a direct and immediate interest on their part, does not exist because the activity which distinguishes them is such that it may be undertaken by others. They allege that the only important factor is the objective circumstance that a given natural or legal person is undertaking, at the time when the measure at issue is intended to take effect, that specific activity which, in relation to the measure, identifies and distinguishes them individually. Moreover, the fact that, apart from the present applicants, there were other millers at Ancona and at Bologna is of no importance, since membership of a class is not a specific attribute but merely generic. In fact, the necessary relationship specified by the economic provisions of the contested measure exists not between millers as a class and the producer, but between each miller taken individually and the producer.

Finally, the applicants adduce an argument from the text of the second paragraph of Article 173 of the EEC Treaty, noting that it envisages, at the same time as the hypothesis of a measure having the form of a regulation, that of a measure adopted in relation to a particular person which is of individual concern to a different person. It seems clear to the applicants that the expression ‘individual’, in the second case, in terms both of logical and of semantic interpretation, must refer to the concept of an injured interest. They claim that, in this case, the applicant is not the nominal addressee of the measure, but merely a person having the right to institute proceedings, because of the fact that he has an individual interest which is directly injured by the measure. The applicants allege that the words ‘direct and individual’ refer either to the case of a decision adopted with regard to other persons or to that of a measure having the form of a regulation, and that it cannot be accepted that the significance of one and the same expression can alter according to the cases to which it refers.

Grounds of judgment

The applicants have instituted proceedings against Regulation No 128/67 of the Council fixing the prices and principal marketing centres for cereals for the 1967 — 1968 marketing year. More particularly, they request the annulment of Articles 2 and 3 of the said regulation and of Annexes A and B thereto, to the extent to which those provisions fix derived intervention prices for common wheat at the Bologna and Ancona marketing centres.

Under Article 91 of the Rules of Procedure of the Court, the defendant has raised an objection of inadmissibility against the application, submitting that the above-mentioned provisions of Regulation No 128/67 are not of direct and individual concern to the applicants.

Under the second paragraph of Article 173 of the Treaty, individuals are empowered to institute proceedings for annulment only against decisions addressed to them or against decisions which, although in the form of regulations or of decisions addressed to other persons, are of direct and individual concern to them. In the present case it is necessary to examine, in application of that Article, whether the provisions which are the subject of the application are merely in the form of a regulation and in fact constitute a decision of direct and individual concern to the applicants. It is accordingly necessary to ascertain, in relation to the stated criteria, the true legal nature of the measure entitled Regulation No 128/67 and, more particularly, of Articles 2 and 3 of that regulation as well as certain parts, specified in the application, of Annexes A and B to the Regulation.

Having fixed the target price, the basic intervention price and the guaranteed minimum price for certain products for the 1967-1968 marketing year in Article 1, Regulation No 128/67 fixes, in Article 2, the derived intervention prices for common wheat, durum wheat, rye. and barley, as listed in Annexes A and B, for that marketing year. The said Annexes provide for the fixing of those prices, inter alia, for the Bologna and Ancona marketing centres. Finally, in Article 3, the said Regulation fixes the threshold price for certain cereals, including common wheat, for the same marketing year.

Owing to the price mechanism brought into being by Regulation No 120/67, the creation of a single market in cereals for the whole Community depends in part upon the adoption of a system comprising, apart from a target price valid for the whole Community, a single threshold price and a single method of fixing intervention prices. With a view in particular to stabilizing markets and guaranteeing the free movement of cereals within the Community, Regulation No 120/67 provides for the fixing of intervention prices derived from the basic price, the effect of which is to enable surpluses in production areas to be offset against requirements in deficit areas. For the purposes of such offsetting, the necessary intervention measures must be standardized and the circumstances justifying those measures must be assessed not on the basis of a locality or sector but at Community level. The proper working of the system thus set up could not be guaranteed in the absence of a correlation, effected by the fixing of threshold prices, between the price system and the levy system. It is clear from the above that the fixing of derived intervention prices and threshold prices is an integral part of the price system which is held to be indispensable in ensuring the progressive establishment of a common organization of the market in cereals in accorance with Regulation No 120/67 and the objectives of Article 39 of the Treaty. The state of interdependence between these prices is moreover demonstrated by the fact that, both intervention prices and threshold prices are fixed in relation to a common target price which allows producers to settle their plans for cultivation accordingly.

Accordingly, it cannot be contested that the measure of which the provisions at issue form an integral part is in the nature of a regulation.

This finding cannot be invalidated by the fact that Article 2 lays down derived intervention prices which vary according to the marketing centre concerned and that, for each of those prices, the effects of that provision are limited to the areas listed in Annexes A and B. Although 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, no such persons are individually distinguished in this case. In fact the provisions of the said Article 2, the ambit of which is circumscribed by Annexes A and B, do not concern, within each marketing centre, the interests of given named or identifiable persons, but affect the interests of given named or identifiable persons, but affect the interests of categories of users and traders, considered in the abstract, who are distinguished solely by their participation in the market for the relevant products.

The application is accordingly inadmissible under the terms of the second paragraph of Article 173 of the Treaty and must therefore be dismissed.

Costs

Under Article 69(2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs if they have been asked for in the successful party's pleading. In this case neither the applicants nor the defendant have made any submissions as to costs. Under the circumstances, each party must be ordered to pay its own costs.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Having regard to Articles 173 and 189 of the Treaty establishing the EEC; 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; Upon hearing the opinion of the Advocate-General; THE COURT hereby:

1 Dismisses Application No 30/67 as inadmissible;

2 Orders each party to bear its own costs.