C-19/62
ECLI:EU:C:1962:48
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JUDGMENT OF 14.12.1962 — JOINED CASES 19 TO 22/62
1. Natural legal determined It in and persons other ively situations.
than Member States are not entitled volves immediate legal consequences to make an application for annulment in all Member States for categories of of Regulations adopted by the Council persons viewed in a general and
or the Commission. abstract manner.
'decision' 2. The term used in Article 4. The determination of the legal nature 173 has the technical meaning ofa measure emanating from the employed in Article 189, which in Council or the Commission does not particular makes a clear distinction depend only on its official designation, 'decision' between the concept of a but should first take into account its and that of a 'regulation'. object and content.
3. The criterion for the distinction 5. When a which as a whole measure, 'decision' between the terms and constitutes a regulation, includes pro
'regulation' should be sought in the 'application' visions which are capable of being general or otherwise of direct individual concern to of and
the measure in question. certain natural or legal persons, such A decision is of individual concern provisions do not have the character to specific individuals; its essential of a regulation and may therefore be characteristics arise from the restric impugned by those concerned. tion of the class of persons to whom it
is addressed. 6. An association which represents a
A regulation, being essentially of a category of natural or legal persons is legislative nature, is not addressed to not concerned individually by a
a restricted numberofpersons, defined measure affecting the general interests or indentifiable, but applies to object- of the persons in that category.
In Joined Cases 19 to 22/62
19/62 — FÉDÉRATION 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 the La Villette slaughterhouses, 28 avenue Corentin- office at
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,
FEDERATION NATIONALE DE LA BOUCHERIE v COUNCIL
FUTTER— 22/62 — ZENTRALVERBAND des Deutschen Getreide-, UND
at 2-4 Olberg Düngemittelhandels e. V., having its head office
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 l'
commerçants, 8 Avenue de Arsenal,
applicants, v
Council of the European Economic Community , provisionally established
at Brussels, represented in Cases by its Legal Adviser, 19, 20 and 21/62 Jacques Mégret, acting as Agent, by its Legal Adviser, and in Case 22/62 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-Lumière,
defendant,
Application for annulment of the second sentence of Article 2(1) of Regula tion No 26 of the Council of the European Economic Community,
THE COURT
composed of: A. M. Donner, President, L. Delvaux and R. Rossi (Presidents of Chambers), O. Riese, Ch. L. Hammes, A. Trabucchi (Rapporteur) and R. Lecourt, Judges,
Advocate-General: M. Lagrange Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts of and trade in agricultural products' (Official Journal of the Communities The facts may be summarized as fol ws: of 20 April 1962). Article 2 (1) of this On 4 April 1962 the Council of the Regulation provides that:
European Economic Community Article 85 (1) of the Treaty shall not
Regulation No 26 deci adopted 'applying apply to such of the agreements,
certain rulesofcompetition to production sions and practices referred to in the
JUDGMENT OF 14. 12. 1962 —JOINED CASES 19 TO 22/62
form integral The defendant has preceding Article as an raised preliminary part of a national market organization objections of inadmissibility in the four or are necessary for attainment of the cases under Article 91 of the Rules of
objectives set out in Article 39 of the Procedure. In the summary of the
Treaty. In particular, it shall not apply submissions which follows, only the
to agreements, decisions and practices submissions and arguments relating to farmers'
of farmers, associations or admissibility are dealt with. associations of such associations belong
Member State II Conclusions of the Parties ing —
to a single which
concern the production or sale of The applicants claim in their applications agricultural products or the use of that the Court should: joint facilities for the storage, treatment 'annul the second sentence of Article or of agricultural products, processing No 26 of the Council 2(1) of Regulation and under which there is no obligation of the European Economic Community'. to charge identical prices, unless the The defendant contends in its statement Commission finds that competition is raising the preliminary objection of thereby excluded or that the objectives Article 39 inadmissibility that the Court should: of of the Treaty are 'without the substance of jeopardized.' considering the application in question, declare it to According to the applicants, which are be legal inadmissible, with all the associations of French, Dutch and Ger arising therefrom in partic consequences man traders dealing in agricultural ular in respect of the payment of fees, products, the second part of this pro
expenses and other costs'. any vision damages their interests because it The applicants oppose these conclusions establishes discrimination between pro in their replies. ducers of and traders in agricultural
products, to the advantage of the former. III — Submissions and arguments The applicants see this discrimination of the parties in the fact that the disputed provision farmers' gives to farmers, to associations The submissions and arguments of the
or to associations of such associations parties may be summarized as fol ws:
of a Member State, the right to make
agreements relating to the sale of agri 1. Preliminary objection of inadmissibility cultural products or the use of joint based on the nature and the application of facilities for the storage, treatment or the measure in dispute with processing of agricultural products, out its being necessary for such According to the defendant, the wording agree
ments to be promoting the capable of of the second paragraph of Article 173 objectives ofArticle 39 of the EEC Treaty, allows private persons to institute pro
whilst traders can make agreements only ceedings against a regulation only in the sole realizing the measure, because of its objec with aim of cases where such
tives of that Article. This differentiation content, does not have general but only of treatment puts those in commerce at a individual application. In this connexion disadvantageincompetitionwith farmers the defendant points out that the con
and their associations. dition that a regulation should be of
The applicants have asked for the individual concern to a private person if annulment of the second part of this that person is to be entitled to contest it provision on the basis of the second means that he must be affected not as a paragraph of Article 173, puting forward member of a category abstractly defined, submissions of misuse of powers and of but as a particular and specific individual infringement of the Treaty. That means that the measure in question
FEDERATION NATIONALE DE LA BOUCHERIE v COUNCIL
must in reality constitute a decision and are determined specifically, that is, not a regulation. farmers. In addition, as the applicant Moreover a comparison between Article remarks in Case 22/62, it was made in
173 of the EEC Treaty and Article 33 of relation to a well-defined particular
the ECSC Treaty clearly shows the matter and for cases, and well-defined intention of the authors of the EEC directly affects both the legal and
Treaty to limit the possibility of institut competitive position of the applicants.
ing proceedings against measures of a The applicants in Cases 19, 20 and 21 /62 general nature to the Member States, furthermore criticize the construction
the Council and the Commission. placed by the defendant upon the
As to the distinction between a general expression 'of individual concern' and
and an individual measure, the defen remark that such an interpretation dant invokes the case law of the Court would shift the meaning of this expres
relating to the ECSC Treaty and states sion towards the concept of an addressee,
that on this point the Treaties of Rome contrary to the clear distinction made by have introduced no innovation. In the the second paragraph of Article 173 present case the provision in dispute in this respect. They claim that the individual'
being applicable to every legal person inclusion of the words 'and who at present or in the future fulfils has no purpose other than to clarify the the conditions which it has itself en meaning of the words 'of direct .. .
visaged and defined in an abstract concern'.
manner for its application clearly estab In support of their contentions the
lishes a legislative principle. It cannot applicants point out that it would be therefore usefully be replaced by a contrary to the law of nations and to bundle of individual decisions which democratic principles to accept the. could not have any effect with regard restrictive construction of the Council, to any persons concerned who might which would enable that institution, appear later. comprising members who are politically The applicants in Cases 19, 20 and 21/62 not responsible to the courts of Europe
reply that within the framework of the to frustrate unchecked the objectives of
EEC Treaty the distinction between a the Treaty and the rights of the citizens decision and a regulation does not of Member States. In the present case
correspond exactly to the difference the applicants would in practice have between an individual decision and a no chance of availing themselves of the
general decision within the meaning of objection of illegality (Article 184) the ECSC Treaty. In the absence of an against the disputed provision or of a
expressed intention to the contrary by referencefora preliminary ruling (Article the authors of the EEC Treaty, the 177), because the persons harmed by concept of a decision cannot be restricted this provision do not appear among only to measures directed to one or more those to whom it is addressed. The individuals indicated by name. A deci restrictive argument of the Council sion could also be addressed to one or would consequently lead to a real
more categories of individuals, whilst a denial of justice. regulation is a measure which lays down The applicant in Case 22/62 asserts
a general rule applicable in abstracto to that should the Court consider the
all individuals, present and future. disputed provision to be a regulation, it In the present action the applicants in would still have a right to institute the four cases maintain that the provision proceedings against this provision, for in dispute has the character of an the wording of the second paragraph of
individual decision, for the measure Article 173 of the EEC Treaty allows applies to a category of individuals who the inference that private individuals
JUDGMENT OF 14. 12. 1962 — JOINED CASES 19 TO 22/62
have a right to institute proceedings provision at issue. dam The applicants in Cases 19, 20 and 21/62 against regulations which occasion
age to them 'in a special manner'. They reply that the arguments of the defen
furthermore refer to the principle of dant appear to disregard the clear
German constitutional law according distinction which it is necessary to make to which private persons have always between the person who is concerned by the option of attempting by means of a measure and the person to whom it is legal proceedings to contest legislation addressed. They consider that the use of detrimental to them. This option should to'
the phrase 'is of .. . concern made
be open particularly when the applicant by the second paragraph of Article
relies, as here, not on a mere infringe 173, which is much wider than, for ment of the Treaty, but on the infringe example 'affects', implies that the Treaty ment of the fundamental principle of 'allows the widest possible right of
non-discrimination. action to all parties interested'. The requirement of direct concern referred
2. Preliminary objections of inadmissibility to in the second paragraph of Article based on the ground that the disputed 173 indicates that this provision allows
measure is not of direct concern to the 'an application for annulmentby only applicants persons who are immediately concerned, that is to say, without the intervention of
(a) The defendant maintains that Article persons who may also benefit or suffer
173 of the EEC Treaty, which requires from the measures'. The important that the act in question should be of position held by the applicant associa
direct concern to private persons, is more tions and their members in the agricul
restrictive than Article 33 of the ECSC tural sphere puts them directly in
Treaty which provides, in a more competition with farmers as regards the general way, for the right of private activities expressly mentioned in the
persons to attack individual decisions disputed measure. Thus it is of direct
'concerning them'. This condition imposed concern to them.
by Article 173 is fulfilled by 'the person The applicant in Case 22/62 asserts
for whose benefit, or against whose that in order that a person may be interests, the disputed measure creates, affected by a measure within the mean
modifies or abolishes rights or obliga ing of the second paragraph of Article tions when, in a word, the effect of the 173, it is not necessary that such measure measure on the person in question is should alter his rights and duties, but it direct and not mediate'; so that unlike is sufficient that it damages him in the position within the framework of the respect of his economic interests. In ECSC Treaty, 'this condition is not order to decide whether the measure
fulfilled when that measure takes effect causes direct damage, whether within
only after the intervention of a legal the legal sphere or within the sphere of
act of a third party taken on the basis a person's economic interests, the decisive of the measure in question'. In the element is the quantum of damage. In present case, the applicants do not the context of admissibility, it must
complain that they do not benefit from suffice that, 'according to the statement the disputed provision, but go no further of the applicant, it is not out of the than to maintain that their competitors question that the disputed measure
are favoured by provisions the regularity adversely affects his rights and interests'. of which is disputed by the applicants. The discrimination contained in the This damage could occur only when their disputed decision, which involves a
competitors have made use by agree unilateral advantage for the applicant's
ments, decisions or practices of the competitors, has directly altered the
FEDERATION NATIONALE DE LA BOUCHERIE v COUNCIL
legal position and the competitive posi interests in the case of the applicants are tion to the disadvantage of the applicant accordingly affected as such, and the
in its capacity as general representative trades thus affected confers on them the
of the interests of its members. The capacity and interest to act. applicants in the four cases state that According to the applicants, the interest they are the discriminatory of the Community in the good admini attacking principle contained in the provision stration of justice and full supervision of in question as such and not as discrimina the measures adopted by Community tion consequent upon the making of institutions requires that basic trade
agreements between producers. organizations, specialized in the defence The applicants in Cases 19, 20 and 21 /62 of a well-defined trade, be acknowledged point that, in addition, the agree out as having a right of action as wide as that 'direct'
ments, decisions or practices referred to in the ECSC Treaty (the words 'individual' in the disputed provision are not subject and in the second para
to any prior authorization, and that, in graph of Article 173 having the effect consequence, the Council is not able to of excluding inter-trade organizations), prove that no agreement has been interests in the case of the applicants
made. are accordingly affected as such, and the
(b) As a subsidiary point, the defendant, for only these associations are in a
bearing in mind that the EEC Treaty, position to defend sectional interests and
unlike the ECSC Treaty, contains no to put them to the Court in their proper provision expressly granting a right of perspective. The applicant in Case action to associations of undertakings, 22/62 emphasizes in this respect that
expresses doubts as to the possibility of the individual undertakings rarely in a are
being institute keep themselves informed of associations'
able to position to
proceedings against a measure which — the measures adopted by Community like the provision in the present case — institutions or to contest them in appro is not of direct concern to them as priate cases.
associations but only by the intermediary of and through their members. IV — Procedure The applicants in Cases 19, 20 and 21/62 reply that, since the disputed provision The procedure followed the normal
establishes two distinct systems for two course.
occupational categories, it is based on a In view of the fact that the present
criterion of differentiation of trades, and cases are similar in their subject matter, it is therefore for the trade organizations the Court by an Order dated 7 Novem to act, since it is at their level that the ber 1962 joined the four cases for pur
discrimination appears. The commercial poses of the oral procedure and the
defence of the general interests of the judgment.
Grounds of judgment
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
JUDGMENT OF 14. 12. 1962 —JOINED CASES 19 TO 22/62
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. 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 'decision' Article 189 makes a clear distinction between the concept of a and 'decision' that of a 'regulation'. It is inconceivable that the term 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 bedirectly in all Member applicable
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 entitledby 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
FEDERATION NATIONALE DE LA BOUCHERIE v COUNCIL
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.
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 individ capacity as the representative of a category of businessmen, could be ually 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 of the system Treaty which allows applications for annulment by private individuals only ofdecisions 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.
OPINION OF MR LAGRANGE - JOINED CASES 19 TO 22/62
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.
II — Costs
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.
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 Treaty establishing the European Economic Community;
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 Communites, especially Articles 69 (2) and 91 (4);
THE COURT
hereby
1. Dismisses the applications as being inadmissible;
2. Orders the applicants to pay the costs of the proceedings.
Donner Delvaux Rossi
Riese Hammes Trabucchi Lecourt
Delivered in open court in Luxembourg on 14 December 1962.
For the President
A. Van Houtte L. Delvaux Registrar President of Chamber
OPINION OF MR ADVOCATE-GENERAL LAGRANGE DELIVERED ON 20 NOVEMBER 1962
(see Joined Cases 16 and 17/62, page 481)