JUDGMENT OF 16. 4. 1970 — CASE 64/69 COMPAGNIE FRANÇAISE COMMERCIALE v COMMISSION

In Case 64/69

THE COURT composed of: R. Lecourt, President, R. Monaco and P. Pescatore, Presidents of Chambers, A. M. Donner (Rapporteur), A. Trabucchi, W. Strauß and J. Mertens de Wilmars, 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 of the case and the procedure followed may be summarized as follows: After the devaluation of the French franc, the Council of the European Communities decided on 11 August 1969, first, not to change the value of the unit of account and, secondly, to issue a regulation containing measures designed to ensure that the adaptation to the situation thus created, which would affect the French prices of products subject to a common organization of the market, should not be too abrupt. To this end Regulation No 1586/69 of the Council (OJ L 202 1969 p. 1) provides in particular that, for a limited period, the intervention prices payable by the French authorities (in units of account) may be reduced by 11.11 % (Articles 1 and 2). So as to avoid trade difficulties which might result from this situation, Article 3 provides that France shall grant import subsidies and levy compensatory amounts on exports. However, Article 8 gives the Commission the powers necessary to lay down the methods which include ‘in particular the fixing of the amounts of the import subsidies and of the compensatory amounts charged for exports’.

It was on the basis of this provision that the Commission adopted on 22 August 1969 Regulation No 1660/69 (OJ L 213 p. 1) which, in particular Articles 2 and 3 thereof, forms the subject-matter of the present dispute.

Article 2 provides that the compensatory amount charged on exports shall be reduced by an amount to be decided in respect of exports to third countries in accordance with a contract made before 11 August 1969 in which the selling price was expressed in French francs. However, the second subparagraph of Article 2 (1) (a) provides that where a refund may be fixed in advance the provisions of the foregoing subparagraph shall not apply unless this opportunity was made use of.

Under Article 3 the regulation was to come into force on 25 August 1969 but the provisions of Articles 1 and 2 were to take effect as from 11 August 1969.

The applicant has lodged an application directed against the restriction imposed by Article 2 (1) (a) on the application of the preceding provision. It argues that it is wrong to penalize an exporter by excluding him from the application of transitional measures made necessary by force of circumstance on the ground that he did not make use of a possible course of action which itself was not obligatory but purely optional.

By doing this the Commission is said to have infringed Article 16 (3) of Regulation No 120/67 of the Council of 13 June 1967, and the principle enshrined in the Treaty that all the parties must be treated equally. Secondly, the applicant objects to the retroactive effect given to the provisions of Articles 1 and 2 — the entire regulation — by Article 3.

The application was lodged at the Court Registry on 22 October 1969.

An interlocutory application was made to the Court by the defendant on 26 November 1969 raising an objection on the ground of inadmissibility, based on the second paragraph of Article 173 of the EEC Treaty, with a request that Article 91 of the Rules of Procedure be applied.

On 19 December 1969 the applicant presented its submissions on the objection.

After hearing the report of the Judge-Rapporteur and the views of the Advocate-General the Court decided to open the oral procedure with regard to the objection of inadmissibility.

The parties presented oral argument at the hearing on 17 February 1970.

The Advocate-General delivered his opinion at the hearing on 11 March 1970.

II — Conclusions of the parties

The applicant claims that the Court should :

annul the contested decisions with all the consequences that that entails in law and as regards costs ;

further, order all the necessary measures of inquiry for the purposes mentioned above.

In its interlocutory application the defendant claims that the Court should:

deciding in accordance with Article 91 of the Rules of Procedure on the admissibility of the original application, and without going into the substance of the case :

declare the original application inadmissible ;

order the applicant to pay the costs of the proceedings.

In its submissions in response to the interlocutory application the applicant contends that the Court should:

dismiss the objection raised in the interlocutory application and declare the original application admissible;

on that ground refer the case for final judgment in accordance with the provisions of Article 91 (4) of the Rules of Procedure ;

order the Commission to pay the costs of the interlocutory application.

III — Submissions and arguments of the parties as to admissibility

The submissions and arguments of the parties as to the admissibility of the application may be summarized as follows: The defendant claims that the application is inadmissible both because of the nature of the contested measures and because they do not concern the applicant individually. Regarding the nature of the provision in the second subparagraph of Article 2 (1) (a) the defendant argues in particular :

that the fixing of the compensatory amounts charged on exports of agricultural products pursuant to Regulation No 1586/69 of the Council is essentially legislative in nature;

that the first paragraph of Article 2 (1) (a) of Regulation No 1660/69 is a provision creating a temporary exception to the general rule concerning the levying of the said compensatory amounts, and as such shares the general and abstract nature of that general rule;

that the second subparagraph of Article 2 (1) (a), for its part, imposes a restriction on that exception and thus it, too, shares the general and abstract nature of the general rule;

that, furthermore, the contested measure applies to objectively determined situations and involves legal consequences for categories of persons viewed in a general and abstract manner.

As far as the nature of Article 3 of Regulation No 1660/69 is concerned, the defendant contends that this provision, by virtue of the fact that it determines the application ratione temporis of provisions the nature of which it considers it has sufficiently shown to be that of regulations, has that same legislative nature.

Moreover, according to the defendant the applicant cannot claim that the contested measures are of individual concern to it. The defendant points out in this respect that the applicant does not claim to be in the situation to which those measures refer. Even if that were the case the provision in the second subparagraph of Article 2 (1) (a) only affects the applicant's interests in its capacity as a member of a category of dealers viewed in the abstract. The fact that the provision applies to situations in the past is of no significance here because persons who had concluded contracts during that period cannot claim that this fact alone makes them a closed group identifiable in the same way as those to whom a decision is addressed.

On the basis that, on the one hand, the same arguments apply in relation to Article 3 and, that on the other, it is unnecessary to decide whether the contested provisions are of direct concern to the applicant, the defendant concludes that the application is inadmissible.

The applicant argues in the first place that the contested provisions should be examined to see whether they are of direct and individual concern to it without first stopping to consider the nature of those provisions in abstracto. In this respect it refers to the judgment of the Court in Case 40/64 (Sgarlata and Others v Commission of the EEC [1965] E.C.R. 215 et seq.). The applicant claims in any case that the argument used by the defendant, to the effect that a provision imposing a restriction on an exception to a general rule necessarily shares the nature of a regulation enjoyed by the latter rule, is misconceived.

The contested provision does not apply to persons viewed in a general and abstract manner but, on the contrary, to clearly ascertained persons known to the Commission at the time when the relevant regulation was adopted, that is, exporters having concluded export contracts in French francs before 11 August 1969 and who had not taken advantage of the opportunity of fixing the export refund in advance.

This is what makes the provision of individual concern to the applicant in view of the fact that it had made a number of contracts under the circumstances indicated above.

As regards the second head of its conclusions the applicant notes that in the interlocutory application it is claimed that the arguments used to support the submission that the first head of the conclusions is inadmissible are equally valid for the second. It points out that the head of the conclusions directed against Article 3 is not a subsidiary claim but a principal one, and invokes the same arguments against the submissions in the interlocutory application as it used with regard to the first head of the conclusions, and considers that no further observations are called for.

Lastly, the applicant claims that the contested provisions are of direct concern to it by reason of the contracts which it has concluded.

In the oral proceedings the defendant alleged that the present case could not be compared with the situation which formed the subject-matter of Joined Cases 106 and 107/63 ([1965] E.C.R. 405 et seq.). Whereas in that case the decision of the Commission actually concerned a determined and known number of dealers defined as such, the present case concerns a provision partaking of the nature of a regulation laying down a transitional rule which affects the applicant only inasmuch as it belongs to the abstractly defined group to which the regulation applies.

The applicant claims that, on the contrary, the two cases are perfectly comparable to each other; when the Commission adopted a regulation on 22 August 1968 concerning contracts concluded before 11 August it knew full well that the provision would apply only to a certain restricted number of contracts, arid, therefore, of dealers.

At the Court's request the defendant declared its willingness to supply a list of the contracts to which the provision in question applied.

Grounds of judgment

1. In an application lodged on 22 October 1969 the applicant has applied for the annulment of Regulation (EEC) No 1660/69 of the Commission of 22 August 1969 on certain measures to be taken in the agricultural sector as a result of the devaluation of the French franc (OJ L 213 p. 1) in so far as it provides in the second subparagraph of Article 2 (1) (a) that ‘Where a refund may be fixed in advance the provisions of the foregoing subparagraph shall not apply unless this opportunity was made use of’ , and provides in Article 3 that Articles 1 and 2 shall take effect from 11 August 1969.

2. In an interlocutory application lodged at the Registry on 26 November 1969 the defendant has raised an objection of inadmissibility under Article 91 of the Rules of Procedure, claiming that the measures in question were regulations and were not of individual concern to the applicant.

3. It is therefore for the Court to examine in the light of Article 173 of the Treaty whether the provisions which formed the subject-matter of the application are merely in the form of a regulation and do, in reality, constitute decisions of individual concern to the applicant.

4. The regulation in question was adopted pursuant to Article 8 of Regulation (EEC) No 1586/69 of the Council of 11 August 1969 relating to certain measures of conjunctural policy to be taken in the agricultural sector as a result of the devaluation of the French franc (OJ L 202 p. 1) and forms part of a body of provisions designed to adjust the functioning of the intervention mechanisms of the common organization of agricultural markets to the devaluation of the French franc on 8 August 1969.

5. The main purpose of these measures is that certain correcting factors, corresponding to the devaluation of the French franc as against the unit of account, should be applied to certain amounts payable or to be charged by France as a result of the common agricultural policy, and they lay down the amounts of these in French francs for various products.

6. The contested provisions are transitional measures designed to govern the effects of the alterations of the amounts, expressed in French francs, with regard to situations which arose under the previous provisions relating to the common agricultural policy.

7. They provide in particular that transactions relating to exports which are the subject-matter of contracts of sale concluded in French francs before 11 August 1969 shall not be wholly subject to the obligation to pay a compensatory amount provided, however, that in cases where a refund may be fixed in advance that opportunity was made use of.

8. It is also provided that the provisions in question are to take effect as from 11 August 1969.

9. The applicant denies that the contested provisions are general in character and have the nature of regulations, claiming that the restriction imposed on the scheme provided for exports which are the subject-matter of contracts of sale concluded before 11 August in French francs, and the choice of 11 August as the date on which the scheme should come into effect, are of direct and individual concern to him.

10. The group of undertakings to which the condition objected to applies is defined, according to the applicant, since the undertakings are accurately known or identifiable from before the date on which the contested provision was adopted.

11. Where a measure has the character of a regulation that character is not called in issue by virtue of the fact that the number and even the identity of the persons to whom it applies at a given moment may be determined more or less precisely, provided that it is clear that this application depends on an objective legal or factual situation defined by the measure with reference to its purpose.

12. The fact that a transitional provision is applicable only to certain situations arising before a date fixed by it and, therefore, often established before it comes into force, does not prevent that provision from being an integral part of the former and new provisions which it is designed to reconcile and, consequently, from partaking of their general nature.

13. There is also no doubt that Article 3 of Regulation No 1660/69, providing that the provisions of Articles 1 and 2 shall take effect from 11 August 1969, has the nature of a regulation.

14. The provision in question fixes the date from which the new provisions shall take effect.

15. In the absence of any misuse of powers, such a provision partakes of the general nature of the measures which it brings into effect.

16. In any event the choice of 11 August as the date was necessary from an objective point of view, since the adjustment of the intervention mechanisms of the common agricultural policy to the devaluation of the French franc had to be accomplished at the earliest possible date, that is, from the entry into force of Regulation No 1586/69.

17. There is therefore nothing whatsoever to indicate that Article 6 was merely in the form of a regulation and concerns the applicant individually.

18. The result of the foregoing is that the application must be dismissed as inadmissible.

Costs

19. According to Article 69 (2) of the Rules of Procedure the unsuccessful party shall pay the costs.

20. In the present instance the applicant has failed in its application.

21. It must therefore be ordered to pay the costs.

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 the Treaty establishing the European Economic Community, especially Articles 173 and 189; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT hereby :

1 Dismisses the application as inadmissible;

2 Orders the applicant to bear the costs.