C-6/68
ECLI:EU:C:1968:43
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JUDGMENT OFTHE COURT 11 JULY 19681
Zuckerfabrik Watenstedt GmbH v Council of the European Communities 2
Case 6/68
Summary
Measures adoptedby an institution — Regulation — Concept (EEC Treaty, Article 189)
A measurewhich is applicable to objectively regulation simply becauseit may be possible determined situations andwhich involves to ascertain with agreateror lesser degree legalconsequences forcategories ofpersons ofaccuracy the number oreven the identity viewed ina generalandabstract manner of the persons towhich it applies at any constitutes a regulation. giventime aslong as there is no doubt that Cf. paragraph 3,summary, Joined Cases the measure is applicable as the result of an 16 and17/62, [1962]E.C.R.471. objectivesituation of law or of fact which it Ameasure whichabrogates a provision of specifies andwhich isin harmony with its general application orplaces atime-limit on ultimate objective. its applicability partakes ofthe general The factthat a legal provision may have nature of the latter provision. different practical effects on the different Cf. paragraph2, summary, JoinedCases 36 personsto whom it applies in no way con to 38, 40and 41/58,Rec. 1958—1959, p. tradictsits nature as a regulation provided 335. that thesituation to which it refers is objec A measure does not loseits character as a tively determined.
InCase 6/68
Zuckerfabrik Watenstedt GmbH , havingitsregistered office atWatenstedt über Schöningen, KreisHelmstedt,representedby its managers Rudolf Modrow andAlfred Steinmeier,assisted by KonradRedeker, Advocateof the Bonn Bar, with an address for servicein Luxembourgat the Chambers of Georges Reuter, avocat-avoué, 7 avenue de l' Arsenal,
applicant,
Councilof the European Communities , represented by its Legal Adviser, Hans Jürgen Lambers,acting as Agent,with an addressfor service in Luxembourg at theChambers ofÉmileReuter, CentreEuropéen, Luxembourg-Kirchberg,
defendant,
1 — Language of the Case: German. 2 — CMLR.
JUDGMENT OF 11. 7.1968 — CASE6/68
Application relating atthe present stageof the procedure to the admissibilityof the applicationforthe annulment of paragraph(3) of Article 9 of Regulation No 1009/67/EEC of the Council of 18December 1967 on the common organization ofthe marketin sugar, whichprovides thatthe intervention system prescribed by paragraphs (1) and(2) ofthe saidArticle 9shall only apply to raw beet sugaruntil 31 December1969;
THE COURT
composedof: R. Lecourt,President, A. M. Donner, President of Chamber, A. Trabucchi, J. Mertens de Wilmars(Rapporteur) and P. Pescatore, Judges,
Advocate-General: K.Roemer
Registrar:A. Van Houtte
givesthefollowing
JUDGMENT
Issues of factandof law
I — Factsand procedure TheAdvocate-General delivered his opin ion at the hearingon 13 June 1968. The applicantcompany is a sugar factory which manufactures from sugarbeet raw II — Conclusions ofthe parties sugar which is then processed into refined sugar by another undertaking (arefinery). A— The applicant claims in itsapplication Itlodgeditsapplication at the CourtRegis that the Court should: try on 29 February1968. The Council of the European Communities, '1. Declare the application admissible; the defendant, submittedon5 April 1968 an 2. Declarenull and void Article 9(3) of Reg objectionof illegality based onthe second ulation No 1009/67/EEC of the Council paragraph ofArticle 173of the EEC Treaty of the European Communities of 18 and sought to apply Article 91of the Rules December 1967 on the common organi of Procedure. zation of themarket in sugar to the The applicantlodged its observations on extent towhich the intervention system this objection on 9 May 1968. forraw beet sugar prescribed by para The Court,havingheard the views ofthe graphs(1) and (2) of Article 9 only Advocate-General, decided to openthe oral applies until31 December 1969; procedure on the objection ofinadmissibil 3.Order the defendant topay the costs.' ity. The oral submissionsof the parties onad B— In its objection of inadmissibility the missibilitywere made at the hearing on 29 defendant claims thatthe Court should: May 1968. At the request orthe Advocate-General the '1. Declare the application inadmissible un Court called upon the defendant toprovide der Article91 ofthe Rules of Procedure, certain documents on the sugar factories of without considering the substance of the the Community engagedsolely in the man matter; ufacture of raw beet sugar. 2. Orderthe applicant to bear the costs.'
ZUCKERFABRIK WATENSTEDT v COUNCIL
III — Submissions andarguments of asto distinguish them individually in the theparties on admissibility senseof the second paragraph ofArticle 173 of theTreaty' (judgment of 3March 1968 in A —In itsobjection ofinadmissibility the Case 30/67,IndustriaMolitoria Imolese and Councilof the EuropeanCommunities, the Others vCouncil, [1968]E.C_R_). defendant, submits thatthe applicationcan It follows fromthis case-law that measures only be admissible byvirtue of the second whichare of directand individual concern paragraph ofArticle173 ofthe EECTreaty tocertain natural or legal personsmay be inthe followingtwo cases: contestedby those persons evenif theyare containedin a regulation properly de (a) iftheapplication is directedagainsta scribed assuch. decision addressedto the applicant Inthe present case, therefore, all that need within the meaningof Article189of the bedoneis to examine whether the contested Treaty, thatis to say,to theextent to provisionsof Article 9(3) of Regulation No which thatdecision specifies the appli 1009/67/EECare of direct andindividual cantas the personaffectedby it; concerntothe applicant. (b) ifthe application is directedagainst a Inthis connexionaccording to the con decision which, although inthe form of sistentcase-law ofthe Court, applicants aregulation ora decision addressed to mayonly claim to beindividually con anotherperson,is of direct andindivid cerned,by a contested measure if it 'affects ual concern to the applicant. thembyreason of certainattributes which Sincethe contestedmeasuretakes the form arepeculiar to them, or by reasonof circum of aregulation,clearly case (a) cannotapply stancesin which they are differentiated from
here. According to the defendant,the appli allother persons,andby virtue of these cation isonlyadmissible if itis established factorsdistinguishes them individually just that thecontested measureis only a regula asin thecase of the person addressed' tion inform andthat itis in reality adecision (judgment of 15 July 1963 in Case 25/62, which isof direct andindividual concern to Plaumann,Rec. 1963, p. 223; judgment of the applicant. 2July 1964 in Case 1/64, Glucoseries, [1964] E.C_R_413; judgment of 1 April1965 in The defendantsays that,for thepurpose of Case40/64, Sgarlata, [1965]E.C_R_ 215; answeringthe question whether a measure judgmentof 1 April1965 in Case 38/64 described as aregulation in factconstitutes Getreide-Import,[1965] E.C_R_ 203; judg a decision, the Courtdoes notbase its judg mentof 1July 1965in Joined Cases 106 and mentexclusively on the officialtitle of the 107/63, Toepferand Getreide-Import, [1965] measure, but takes into accountits object E.C_R_405). and content andinquires whether it hasa Inthe defendants opinion the applicant is 'general "application"',that is to say, nottobe regarded as 'individually con whetheritapplies 'notto a limitednumber cerned'in thesense of this case-law, since of persons, defined oridentifiable, but to Regulation No 1009/67/EEC creates,for categories of persons viewed abstractly and the wholeof the EEC, a common organiza in theirentirety' (judgments of 14 December tionof the market in sugar.
Similarly to 1962 inJoined Cases 16and 17/62, Con whathas beenprovided in respectof other federation nationale desproducteurs de market organizations the market in sugar is fruits etlegumesand Others vCouncil of the regulated essentiallyby means of price. In EEC andin Joined Cases 19to 22/62, order tomaintain the price at the level Federationdu commercedegros desviandes desiredthe Regulationlaysdown inpartic and Others v Council of the EEC, [1962] ular the obligationon the partof the inter E.C_R_ 471 and491 respectively). vention agencies designated by the sugar- The Courthas in anyevent admittedthat 'it producingMember States to buy in the may happenthat a measure which,taken as sugaroffered to them.
Thisobligation is awhole, has thecharacteristics of a regula containedin Article9(1) in respect of white tion, mayneverthelesscontain provisions sugarand rawcane sugar andin Article addressed to specificpersons in sucha way 9(2) in respectofraw beet sugar. These
JUDGMENTOF 11. 7.1968 — CASE 6/68
purchases are made, asregards eachof the cantis only affected bythe provision in threekindsof sugar, at the intervention dispute by virtue ofthe factthat it is a pricesvalid forthe area ofthe Community processer of beetinto rawsugar, that is to inwhich the sugar is locatedat the timeof say,by virtue of an industrial activity which purchase.The intervention prices arefixed, maybe carried on at any time by anyone and for thedifferent areas and foreach kind of which therefore is not of such a natureasto sugar (whitesugar, raw canesugar andraw differentiatethe applicant from all other beetsugar),in accordance with the detailed personsand thus to distinguish itindivid rules specifiedrespectively byArticle 3(1) ually just as in the case ofa person addressed and (2), Article3(4)and Article 9(7).' bya decision. The setting up of the intervention mech When the applicant, in orderto substantiate anismconstitutes a measure whichis wholly itsopinion to the contrary, referred to the general in natureand whichconcerns an judgment ofthe Courtof 1 July 1965 in indefinite number of naturaland legal per JoinedCases 106 and 107/63, Toepfer and sons engaged in production or marketingin Getreide-Import ([1965] E.C_R_ 405), it dis thesector of sugar.More particularly, the regarded the fact that the measure annulled obligationto buyin rawbeet sugar and its by the Court inthese cases wasconcerned necessarycomplement, thefixing of the with transactions whichoccurred before intervention price for raw beetsugar, con that measure was adopted and which there cern an indefinite number of persons who fore madeit possibleto distinguish the cannot be identified individually, butat persons concerned individually.In the pre most as constituting a categoryof persons sent case, on the contrary,the persons who defined in abstract, generalterms. For these may be concerned on31 December 1969 pricesare of concern, in theareas in which cannotbe ascertained except as constituting they are valid, first of allto the intervention categories of personsdefined in general, agencies designated by the MemberStates, abstract terms. which can onlybuy in atthese prices,then to The provisions in disputeare accordingly theproducers of rawbeet sugar engaged in notof individualconcern to the applicant.
productionin these areas,irrespectiveof Finally the defendant alleges that if itis whether ornot theyprocess theraw sugar established thatthe contested measure is not intowhite sugar, and finallyto the various of individual concern to the applicant, categories of industrialprocessers anddeal there is no need toinquirewhether thesaid lers whosetransactions are influenced bythe measure is of direct concernto it, since the fixing of theintervention price. The aboli
applicationis only admissible if both con tion under Article9(3) ofthe intervention ditions are satisfied simultaneously. mechanism on 31 December 1969 isalso of The defendant therefore claims that the concernto an indefinitenumber of natural application is inadmissible. legal persons. Thepersons concerned can B —The applicant replies that the condi not be identified individually,but at most tionsof admissibility stipulated by the only as categories of persons definedin secondparagraph of Article 173 are satisfied abstract, generalterms, although the abo in thepresent case. litionof theintervention system mayhave First,it observes that the provisions of the varying effectson different groupsamong EEC Treaty on the right to institute pro the personsconcerned. ceedings cannot be given a narrow inter Evenifone were toaccept the pointof view pretationand that the Court of Justice has on which the applicant basesits argument, already confirmed this in its judgment in namelythat the abolition ofthe intervention Case 25/62,Plaumann, of15 July 1963.
If system for rawbeet sugaron 31 December theprotection afforded by theCourt is to be 1969 is of concern only to thosesugar far-reaching and effective, the provisions of factories whichare notequipped to process the Treaty must be given a broadinter thissugarinto white sugar, the persons thus pretation.The objection of inadmissibility concerned couldnot beascertained individ raised by thedefendantignores thisneces uallybut only as categoriesof persons de sity orat least fails to take sufficient account finedin abstract,general terms. The appli- of it. In viewof this principle of interpreta-
ZUCKERFABRIKWATENSTEDT v COUNCIL
tion which emergesfrom thesaid judgment factthat, notwithstanding the formal char of 15 July 1963 the admissibility of the acteristicsof a regulation exhibited by this application,according totheapplicant, measure, theparticular rules in question cannot be contested." mustbe regarded as constituting adecision The applicantgoes onto reply tothe defend andconsequently ameasure which can be ant's allegation thatthe applicant is not contested before the Court.Article 9(3) of individually concerned by the contested the saidregulation constitutes such a deci provisions of Article9(3) ofRegulation No sion, since itis of direct and individual con 1009/67/EEC and concedesthat the judg cern toa specificclass of persons: the pro ment deliveredon 1 July1965 by theCourt ducersof rawbeet sugar. Set inthe context of Justicein Joined Cases 106 and 107/63, of the generalintervention system, this arti Toepferand Getreide-Import, is concerned cle contains a specific individual decision withdifferent situations, but itmaintains affecting producers of raw beet sugar in that that this factor isnotdecisive.
What is im itexcludes them,as from 1 January 1970, portantis theprinciple whichemerges from from thebenefit of the intervention system. this judgment,namelythat a person must be Althoughthis measure has the formof a consideredto beindividuallyconcerned if regulationand at first sight appears to be a it ispossible to establish that ameasure set ofrulesof generalapplication it never does notrefer onlyto a specificclass of per thelessconstitutes in substance a decision sonsbut to a sufficientlyascertainable class governingan individual case: the exclusion
ofpersons. This is thesituation in the pre of producers of raw beet sugar from the sent case because the classof rawbeet sugar benefit of the intervention system asfrom producers towhichthe applicant belongs is 1 January 1970. limited, can be clearly defined and is there The applicant goes on to argue that the pro fore ascertainablein the senseof the princi vision in question is of direct concern to it pleof interpretation established bythe sinceno other decision or legislative meas
Courtof Justice. In the present case the ureis necessary to exclude it, as a producer facts arethus entirely differentfrom those ofraw beet sugar, from the intervention inCase 1/64 on which theCourt delivered system as from 31 December 1969. its judgment of 2July 1964. Itwas precisely Finally theapplicant points out that at its inthe latter case that it wasnot possible to meetingof 27 and 28 November 1967 the ascertain with asufficient degree ofcertainty Council of Ministers of theEuropean Com whowere thepersons affectedby thecon munities decidedthat the situation ofraw tested measure. sugar factories in LowerSaxony should be Thisconclusion cannot beupset by arguing regarded as abnormal within the meaning thatRegulation No 1009/67/EEC is precise of Article 9(4) of Regulation No1009/67/
lywhat itsaysit is,a regulation, and there EEC. Although this decision has not yet fore a measure ofa whollygeneral nature. produced concrete legal effects, it has, how Thefact that thisact ofthe Council hasthe ever, caused contacts to bemade for the character ofa regulationdoes not prevent purpose ofpreparing for the period sub the systemset up by Article9(3) from affect sequentto 1 January 1970 an appropriate ing aclass of producers, namely the manu body ofrules for the raw sugar factories of facturers of rawbeet sugar, ascertainableas Lower Saxonyand accordingly also for the such, and therefore defined. applicant.Inview of the said decision of the The applicant furtherargues that although Council of Ministers it is not impossible itis true, as thedefendant asserts, thatReg
that an appropriate scheme will be set up. ulation No 1009/67/EEC constitutes as such Itmightthus be advisable in certaincircum firstand foremost ameasure of awholly stancesto defer any decisionin the present general character,this in no way altersthe case forthe timebeing.
Groundsof judgment
Theapplicationseeks the annulment of Article 9(3)of Regulation No 1009/67 of the Council of18December 1967 on thecommon organization of the marketin
JUDGMENT OF11. 7. 1968 — CASE 6/68
sugar. By virtueof the contested provisionthe obligation, laid down by Article 9(1), onthe part of the interventionagencies designatedby the Member States to buy in, subject to certain conditions, atthe intervention price thequantities ofraw or whitebeet or cane sugaroffered to them, terminates on 31 December 1969. The defendanthas raised an objection of inadmissibility under Article 91 of the Rules of Procedure, arguingthat thereis at issue no decision which is ofdirect and individual concern tothe applicant.
Inorder to determine whether the applicationis admissible,it is necessary to examine whetherthe contested measure is a regulation or a decision within the meaningof Articles 173 and189 of theTreaty. By virtue of the second paragraph of Article 189 of the Treaty the criterionfordistinguishing between a regulationand a decision iswhether the measure atissue isof 'general application' or not. The nature of thecontested provision must therefore be studied and in particular the legal effects which it is intended to or does actually produce.
Having observedthat this provision is addressed to various classesof persons, namely, the intervention agencies, theother buyers and thesellers, including those producerswho manufactureexclusivelyrawbeet sugar, the applicant says that in the presentcase, in order to decidewhetherthe measure atissue is in thenature of a regulation or an individual decison, it isnecessary to examine specifically what significancethe measure has for the applicant orfor the class of persons to which itbelongs.According to the applicantthe effects of the contested measure are of direct andindividual concernto'a specificclass of persons: the producers of raw beet sugar'because thecontested measure producesfor themspecific effects which aredifferent fromand more burdensomethan those which it produces on the other persons to which it applies.
The commonorganization ofthe marketinsugar, established by Regulation No 1009/67, isessentially governed by meansof price. In order to ensure that the necessary guarantees in respect of employment and standards of living are main tained for Communitygrowersof sugar beetand sugar cane this regulation makes provision formeasures to stabilize the sugar market by providing for the fixing of a target priceand an interventionpricefor white sugar,as well as derived inter vention prices which take accountboth of differences between regional prices and of the stage of processing ofthe products. The obligation on the part of the inter ventionagenciesto buy inthe quantities offered to them is an essential condition for maintaining a level of pricescorresponding to the interventionprices. Thus, by requiring theseagencies to buy in raw sugarbeet until 31 December 1969, Article 9(3) ofRegulation No1009/67 in fact stipulates that measures relating to the commonorganization of themarket in sugarshall only apply to raw beet sugar until thesaid date.
ZUCKERFABRIK WATENSTEDTv COUNCIL
This provisiontherefore regulates theprices of aproduct and, as a result, the rightsand duties ofbuyers and sellers, including producers. Such a measure is of general application withinthe meaningof Article 189 of the Treaty, for it is applicableto objectively determined situations and involveslegal consequences for categories ofpersons viewedin a general andabstract manner. It affects the applicant solely byvirtue ofits capacity as a sellerof raw beet sugar, and not by reason of anymore narrowlydefined characteristic. Furthermore, a provision which,like Article 9(3), abrogates a provision ofgeneral application or places a lime-limiton its applicability, partakes of thegeneral nature of the latterprovision.
Moreover, a measure does not loseits character as aregulation simplybecause it may bepossible to ascertainwith a greater or lesser degree of accuracy the number oreven the identity of thepersons to which itapplies atany given time as long as there is nodoubt that the measure isapplicable as theresult of an objective situation of law orof fact which itspecifies and which is inharmony with its ultimate objective. Furthermore, the factthat a legalprovision may have different practical effects onthe different persons to whom itapplies inno way contradicts its natureas aregulation provided that the situationto which it refers is objectively determined.
The defendant has not contravenedthese requirements in not regulating the systemof prices for oneproduct in the same way asfor other products. If one were to refuseto recognize a measure regulatingpricesas being in the nature of a regulationsimply because it concerns a particular product and affects the producers thereof byreason ofcircumstances in whichthey are differentiated from all other persons, theconcept ofa decision would therebybe expanded to such an extent as to imperilthe system of theTreaty which only allows individualsto bring applica tions for annulment against individualdecisions addressed to them or against measures whichaffect themin asimilar manner.
The application must therefore be dismissed asinadmissible.
Costs
UnderArticle69(2) of the Rules ofProcedure the unsuccessful party shallbe ordered topay the costs. Inthe present case, as the applicant hasfailed in its action it must bear 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;
OPINION OF MR ROEMER —CASE 6/68
Havingregard to Articles173 and 189 ofthe Treatyestablishing the EEC; Having regardto theProtocol onthe Statuteof the Court of Justice of the EEC; Having regardto the Rulesof Procedure of the Court of Justice of the European Communities;
THE COURT
hereby:
1. Dismisses the applicationasinadmissible;
2. Ordersthe applicantto pay thecosts.
Lecourt Donner Trabucchi
Mertensde Wilmars Pescatore
Delivered inopen court inLuxembourg on 11July 1968.
A. Van Houtte R. Lecourt
Registrar President
OPINION OFMR ADVOCATE-GENERAL ROEMER DELIVERED ON13 JUNE 19681
Mr President, beet and sugar cane. For this purpose it Members ofthe Court, provides measures for stabilizing the sugar market, which—like other agricultural The applicant in the present proceedings markets inthe Community—has to be reg runs a sugar factoryin the Land ofLower ulated essentially by means of price. At the Saxony inthe Federal Republic of Ger centre of the market organization, there many. There it produces, from sugarbeet, fore, we find the fixing of a target price for raw sugar which isfurther processed into whitesugar and a corresponding interven white sugar by otherconcernscalled refin tionprice whichare fixed each year for the eries. Itfeels aggrievedby a provision of the Community area having the largest surplus. commonorganization of the market in The minimum prices which the sugar man sugarwhich the Council ofMinisters setup ufacturers are obliged to paythe sugar beet in RegulationNo 1009/67 of 18 December producers have alsoto be fixed each year for 1967 (Official Journal No308). the different sugar beet producing areas, Thisorganizationof the market,the details taking into account the intervention price. of whichare obscure and complexfor the Furthermore,provision is made for derived uninitiated,has as its object 'to ensure that intervention prices for other Community thenecessary guaranteesin respectof em areas,intervention prices for raw cane sugar ployment and standardsof livingare main and intervention pricesfor raw beet sugar. tained'for Community growers ofsugar These play a part for the intervention agen-
1 —Translated from the German.