C-40/64

1. Cf. para. 1, summary of the judg­ Commission and the Member States ment in Case 38/64. can discourage the importation of the said products by measures for safe­ 2. It follows from Article 11 of Regu­ guarding the common agricultural lation No 23 of the Council of the market. EEC and from Regulation No 100 of The annual and uniform fixing of the Commission of the EEC that the reference prices forms a basis for reference price in the fruit and freedom of action in the import vegetable sector constitutes a general business and in business generally. criterion adopted in the public in­ Therefore the fixing of reference terest with a view to facilitating com­ prices does not concern the appli­ mercial transactions and to stabilizing cants individually but is directed to prices on the markets, at the same a multiplicity of citizens of the Com­ time limiting the powers whereby the munity as a whole.

In Case 40/64

MARCELLO SGARLATA, SALVATORE URSO, in his capacity as Director of the Syracuse Provincial Growers' Federation, PAOLO BELFIORE LUCOVICH, in his capacity as President of the Syracuse Farmers' Association, GIUSEPPE DENARO, in his capacity as Legal Representative of the Provincial Federation of the Union of Syracuse Mutual Cooperatives,

1 - Language of the Case: Italian. 2 - CMLR.

JUDGMENT OF 1. 4. 1965 — CASE 40/64

SALVATORE PITRUZZELLO, authorized to act for Sebastiano Formica by power of attorney, ANTONIO PIAZZA, SEBASTIANO FAILLA, SALVATORE BUTERA, GIUSEPPE INNORTA, VINCENZO PALUMBO, producers and exporters of citrus fruits, assisted by Carlo Selvaggi of the Rome Bar and Aldo Palumbo of the Catania Bar, with an address for service in Luxembourg at the Chambers of Mr Arendt, Advocate, 6 rue Willy-Goergen, applicants,

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

SGARLATA V COMMISSION

JUDGMENT

Issues of fact and of law

JUDGMENT OF 1. 4. 1965 — CASE 40/64

We reserve all our rights and also concrete administrative acts, applying request that the defendant be ordered the legislation to a concrete case, in to pay the costs.' accordance with what the legislation itself calls for.

III — Submissions and argu­ 2. The applicants then go on to apply ments of the parties this general theory to the case under on the objection of discussion. inadmissibility (a) The basic rule is contained in Article 11 (2) of Regulation No 23 of 4 April The submissions and arguments of the 1962. This provision consists of a parties may be summarized briefly as specific safeguard clause in favour of follows: market-garden and fruit production in the Community. The operation of this A — The applicant asserts in their re­ clause (which may involve suspension of quest that since the contested measures imports from third countries or the were adopted in the form of 'regulations' application of a special countervailing the application seems at first sight in­ charge) may only take effect if it is admissible, but that the soundness of established that the Community markets an objection of inadmissibility may only experience or are threatened with serious be apparent. disturbances resulting from imports 1. It follows from the precise definition coming from third countries at prices of the word 'regulation' given in Articles lower than the reference price. This rule 189 of the EEC Treaty and 161 of the is undoubtedly general and abstract in EAEC Treaty that a measure should not scope. This being so, there is no inten­ be acknowledged as a regulation, even tion of requesting in the present appli­ though published under this name, if cation that the rule be annulled, but its contents are not of a legislative only that, in so far as necessary and as nature, in other words if they are not a secondary point, it be declared in­ general and abstract in scope. This also applicable within the meaning of Article follows from the indications in the case- 184.

ever the present application is not dir 3. It remains to be shown that the con ectly aimed at Regulation No 100; it tested measures (which in fact amount does not request that it be annulled to a decision addressed to Member but in making certain submissions States) concern the applicants directly simply disputes its validity in accord and individually. In this connexion it ance with Article 184 with reference may be observed that Article 11 (2) of both to the requirements of the Treaty Regulation No 23 provides a safeguard and to the provisions of Article 11 of clause in favour of producers of fruit Regulation No 23.

act under Article 175. The contested basis of the provisions of Article 2 measures which have fixed a reference (2), (3) and (4) of Regulation No 100. These measures cannot contain the price well below the one which ought to have been fixed (as will be made qualities of generality and abstractness clear later by means of various sub which, according to the case-law of the missions) have practically deprived the Court, characterize regulations made on persons concerned of the safeguard the basis of Article 189.

JUDGMENT OF 1. 4. 1965 — CASE 40/64

Furthermore it judgment of 25 July 1963, Plaumann subjects Member States (including those & Co. v Commission of the EEC). which otherwise would have no intention Finally the applicants use the argument at all of applying the safeguard meas that if their applications were declared ures on imports entering from third inadmissible, they would find themselves countries) and private importers to the deprived of any legally enforceable Community power to order that im guarantee. ports be suspended or that the counter

an effect. Besides if the measures in tical steps towards implementation in question really consisted 'of merely tak order to make applicable other general ing practical steps towards implementa and abstract rules contained either in tion' not only would they not be regu Regulation No 23 or in Regulation No lations, but they would not be decisions 100.' within the meaning of Article 189 of The defendant does not agree that some the Treaty either. They would not be thing merely practical is involved. In subject to the requirements that they the first place it is not correct to say be published and that they should that the Commission must undertake state the reasons on which they are with the help of the Management Com based or to review by the Court etc.; mittee a simple practical calculation in and it does not seem that the applicants accordance with the requirements of the wish to arrive at such a conclusion. two Regulations; these leave a con (b) According to the applicants the EEC siderable margin of discretion in assess Treaty gives 'originating' legislative ing the situation on the market and de power to the Council alone, which termining the reference price. But even means that it gives to it alone authority if it had to follow rigid criteria which to put the principles which are em did not permit any freedom of judg bodied in the Treaty into effect by ment, the measure of the Community means of general and abstract provis body would still remain a legal measure ions. Apart from the exceptional case producing compulsory effects for the of Article 91 (1) the Treaty only gives Community bodies, Member States, and the Commission 'delegated' legislative

measures adopted by the Commission last indent of Article 155 which makes for putting the Regulation in question it possible for the Council to confer into effect are not themselves of the unlimited powers on the Commission nature of regulations despite the nomen­ for the implementation of the rules clature adopted, but are only of the which the Council lays down. So far as nature of concrete administrative acts'. applying Article 43 is concerned there The defendant cannot admit that the was moreover an urgent and pressing need for a body capable of adopting Treaty denied the Commission originat­ the necessary provisions for bringing the ing legislative power. It says that this common organization of agricultural power is also conferred by provisions of markets into being speedily while keep­ the Treaty other than Article 91 (2), for ing in contact with the national ad­ example in Article 10 (2), the first para­ ministrations concerned. graph of Article 22 and in Article 48 Finally it is easy to show that it is for (3) (d). However it does admit that in the Commission to fix the reference accordance with Article 43 (2) of the prices for fruit and vegetables after Treaty legislative provisions for intro­ consulting the Management Committee. ducing the common agricultural policy, In the first place this power flows from including the creation of a common or­ the fourth subparagraph of Article 11 ganization of the markets, are adopted (2) of Regulation No 23, and is con­ by the Council (on a proposal from the firmed by Article 1 (1) of Regulation Commission and after consulting the No 100. The Commission is not sub­ European Parliament). jected to any restriction as to what The defendant moreover observes that form to give to the provision. And since the regulations on agriculture have given it clearly consists of a provision which powers to the Commission which are is general in scope the Commission ob­ themselves in the nature of powers to viously has the power to give it the make regulations. This leads the de­ form of a regulation. Thus the con­ fendant to say that even if it be admit­ tested measures are regulations and as ted that in the present case we are such are not open to direct challenge concerned with a 'delegated' power (in by individuals. the sense that it is not based directly (c) The efforts of the applicants to show on the Treaty but on regulations based that the Regulations which they dispute in their turn on Article 43 of the were in fact decisions addressed to Treaty) there is nothing to show why Member States are of no avail because, the provision creating this power must for them to obtain the benefit of the be considered as exceptional and must second paragraph of Article 173, they be interpreted restrictively. would have had to show that they were

dealing with decisions which, although Court of its case-law on the interpre made in the form of a regulation, are tation of the second paragraph of Article of 'direct and individual concern' to 173 of the EEC Treaty. them. The defendant observes that re (a) If the contested instruments are in course to the concept of a legal interest deed regulations the Court has decided in taking proceedings is considered un that 'natural or legal persons are not acceptable in the opinions of Mr entitled to make an application for the Advocate-General Lagrange (Rec. 1962, annulment of regulations adopted by the pp. 932 et seq.) and Mr Advocate- Council or the Commission' (judgment General Roemer (Rec. 1964, p. 833). of 14 December 1962 Confederation Thus the limitations prescribed by nationale des producteurs de fruits et Article 173 on direct proceedings by légumes v Council of the EEC, Rec. private persons against measures of the 1962, p. 917 and judgment of 14 institutions have a precise meaning, and December 1962 Fédération nationale they cannot be whittled away by inter

all effective significance. It is not enough (b) Even if the contested instruments to say that various producers of citrus are decisions addressed to the Member fruits suffer the effects which the con States and of such a nature as to con tested provisions may have on the cern all producers of citrus fruits in the situation in the market. What matters Community, the applicant must be de is whether they can be seen to suffer clared inadmissible in accordance with individually, because of matters apper

2. In support of its submission of in Commission of the EEC, Rec. 1964, admissibility, the defendant reminds the p. 823).

The defendant asserts that the con put forward their submissions in tested measures are not of 'individual' defence as to substance, both in concern to the applicants. In fact, writing and orally. according to the defendant, apart from 1. (a) In order to show that the con Member States the measures in ques tested measures are not regulations, the tion concern the large class of im applicants go back over the arguments porters of citrus fruits from third set out in their application, supplying countries, in so far as they are affec

Finally going beyond the authority conferred. neither the applicants nor any other The contested measures cannot be clas particular persons were considered in sed in substance as legislative provis the contested provisions in the light of ions because they do not contain rules a situation peculiar to them. Therefore whose exclusive feature is that they do the applicants are not affected individ not at once solve a concrete case but ually, but only by reason of their mem rather enable concrete cases to be bership of the group, defined in an solved. In reality the contested measures abstract way, of all those persons who have as their object and effect the solv may wish to import, export, produce ing of a concrete case by applying the or consume citrus fruits in the Com abstract provisions resulting from the mon Market during the 1964-1965 legislative measures laid down in Regu season. lation No 23 of the Council of the EEC and in Regulation No 100 of the C — The applicants reply in their Commission of the EEC. memorandum of submissions: (b) Next, the applicants assert that the — that the objection of inadmissibility contested measures are of direct and which has been raised is not well- individual concern to them. founded; In the judgments cited by the defendant the Court had to give decisions on — that in order to reach a decision on entirely different sets of facts. the problem which has been raised

JUDGMENT OF 1. 4. 1965 — CASE 40/64

Furthermore if legislative provisions contained both in the Commission had explicitly rejected Regulation No 23 and in Regulation the request calling upon it to act No 100 assume an individual char (second paragraph of Article 175) and acter, so to speak, as regards the per asking it to fix the reference prices in sons directly concerned. accordance with the obligation laid on In its judgment of 15 July in the case it, the persons concerned would in of Plaumann v Commission of the EEC disputably have had the right to con the Court of Justice declared that an test the measure containing the ex application brought by an importer of plicit refusal under Article 173, since citrus fruit was inadmissible, taking the they would have been victims of direct view that the measure affected the ap and individual damage. plicant in his capacity as an importer, This leads to the applicant's argument 'that is to say, by reason of a com that fixing the reference price too low mercial activity which may at any time is in practice equivalent to not fixing be practised by any person and is not any reference price at all.

This acti 173 would have been, why should an vity cannot be carried out by anybody, application brought against measures but only by those who are actual or having a substantially analogous and, potential beneficiaries of the measures in part, absolutely identical effect to of protection laid down in Article 11 that of not fixing a reference price at of Regulation No 23. It is certain that all be considered inadmissible? The a refusal of, or an inadequate grant of, Court has often shown itself to attach

much more importance to substance applicant has a direct, individual and than to outward form. It is for just present interest. this reason that the applicants hope it 2. The applicants then allege that in will see fit not to alter but to comple their application the questions of ad ment and clarify its earlier case-law, missibility are linked to questions con and thus see its way to declaring that cerning the substance of the case, and the present application is admissible. in particular to the answer to be given Otherwise it would be necessary to sup to the following questions: pose that in order to overcome obstacles of form the procedure under Article (a) Does Article 11 of Regulation No 175 should necessarily have been adop 23 require that the alternative

The applicants also countries? analyse the opinion of Mr Advocate- (d) Are the contested measures exclu General Roemer in Case 1/64, and sively directed at protecting the point out that the decision contested production of citrus fruit, and are in that case not only affected the Bel they therefore of such a nature as gian producer who brought the case to cause a direct injury only and (whether or not he was the sole Bel exclusively to a right or an interest gian producer of glucose is of little of the producers of citrus fruit? importance), but also any producer of (e) Does the fixing of an abnormally glucose in the other Member States, low reference price have the same

precision. They are only and exclusively tries definitely excluded in one or the other of the cases set out the producers of oranges, lemons, man above? darins and clementines, that is to say solely and exclusively the owners or Furthermore it is only when the sub cultivators of citrus fruit plantations. stance of the matter is examined that They may be more or less numerous; it can be shown that the protection but given enough effort they could be system has not worked effectively for

JUDGMENT OF 1. 4. 1965 — CASE 40/64

private persons and to the general in­ The interests of the applicants do not terests of Member States without being differ in the present case from those subject to review by the Court of of the Italian Government, but it must Justice at the behest of the private be recognized that it is the person who persons affected. is directly concerned who can best de­ The applicants add that although the dend his own interests. judgments of 14 December 1962 Con­ For example, the individuals concerned fédération nationale des producteurs de are not responsible for the behaviour fruits et légumes and Others v Council of government officials when Regula­ of the EEC and of 15 July 1963 tion No 23 or Regulation No 100 was Plaumann & Co. v Commission of the adopted. Therefore they are entirely EEC resulted in the applications' be­ free to ask for a declaration that Article ing declared inadmissible, this was only 11 (2) of Regulation No 23 and Regu­ after an exhaustive discussion as to lation No 100 are inapplicable. For substance. They conclude that for these obvious reasons these submissions can­ same reasons the decision on the ob­ not be made by the Italian Government, jection of inadmissibility should be re­ which has limited itself to denouncing served for the final judgment in the a certain number of specifically inherent present case. defects in the contested measures. 3. Finally the applicants allege that This leads the applicants to assert that while the Italian Government has it is useful to be able to have all the brought applications against the same aspects of the problem brought out measures, it is nevertheless to be ob­ before the Court so as to enable it to served that the submissions put for­ reach its decided view in full knowl­ ward are only partially the same. edge of the facts.

SGARLATA v COMMISSION

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 counter­ vailing 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 con­ stitutes 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.

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