C-63/69
ECLI:EU:C:1970:27
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JUDGMENT OF THE COURT 16 APRIL 19701
La Compagnie Française Commerciale et Financière S.A. ν Commission of the European Communities2
Case 63/69
Summary
Measures adopted by an institution — Regulation — Concept (EEC Treaty, Article 189)
The fact that a general provision does not cording to their particular situation or have the same effect on all those subject to it activities. is not in itself capable of depriving it of its A provision fixing the date from which the character of a regulation. It is, on the con provisions of a regulation shall take effect trary, in the nature of a general provision partakes of the general nature, in the ab that when uniformly applied it may affect sence of any misuse of powers, of those persons concerned in different ways ac- provisions.
In Case 63/69
La Compagnie Française Commerciale et Financière S.A., having its registered office in Paris, assisted by André Vidart, Advocate at the Conseil d'État and at the Cour de Cassation, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 34.B.IV, rue Philippe-II,
applicant,
ν
Commission of the European Communities, represented by Armando Toledano- Laredo acting as Agent, assisted by Jacques H. J. Bourgeois acting as Adviser, with an address for service in Luxembourg at the Chambers of Émile Reuter, Centre Européenne, Kirchberg,
defendant,
1 — Language of the Case: French. 2 — CMLR.
JUDGMENT OF 16. 4. 1970 — CASE 63/69
Application for the annulment of:
1. The fixing at 81.87 FF per metric ton of the compensatory amount for wheat or mesiin flour (heading No 11.01 A in the Customs Tariff) in the annex for which provision is made by Article 2 of Regulation (EEC) No 1670/69 of the Commis sion of 22 August 1969 on certain measures to be taken in the cereals and rice sectors as a result of the devaluation of the French franc;
2. Article 6 of the above Regulation in so far as it provides that: 'The provisions of Articles 2 to 4 shall have effect from 11 August 1969',
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 To this end Regulation No 1586/69 of the Council (OJ L 202, 1969, p. 1) provides in The facts of the case and the procedure particular that, for a limited period, the followed may be summarized as follows: intervention prices payable by the French After the devaluation of the French franc, authorities (in units of account) may be the Council of the European Communities reduced by 11.11 % (Articles 1 and 2). So as decided on 11 August 1969, first, not to to avoid trade difficulties which might result change the value of the unit of account and, from this situation, Article 3 provides that secondly, to issue a regulation containing France shall grant import subsidies and measures designed to ensure that the levy compensatory amounts on exports. adaptation to the situation thus created, However, Article 8 gives the Commisssion which would affect the French prices of the powers necessary to lay down the products subject to a common organization methods of applying these provisions, of the market, should not be too abrupt. methods which include 'in particular the
206;
COMPAGNIE FRANÇAISE COMMERCIALE ν COMMISSION
fixing of the amounts of the import sub inadmissibility, based on the second para sidies and of the compensatory amounts graph of Article 173 of the EEC Treaty, with charged for exports'. a request that Article 91 of the Rules of Regulation No 1670/69 of 22 August 1969, Procedure be applied. in which the Commission laid down these On 19 December 1969 the applicant pre methods of application for the rice and sented its submissions on the objection. cereals sectors, is the subject of the present After hearing the report of the Judge- disputes, in particular Articles 2 and 6. Rapporteur and the views of the Advocate-
('Article 2: The subsidies granted for im General the Court decided to open the oral ports and the compensatory amounts procedure with regard to the objection of charged for exports by France shall be as inadmissibility. fixed in the Annex hereto'. The parties presented oral argument at the 'Article 6: This Regulation shall enter into hearing on 17 February 1970. force on 25 August 1969. The provisions of The Advocate-General delivered his opinion Articles 2 to 4 shall have effect from 11 at the hearing on 11 March 1970.
August 1969'). The applicant brought an action to contest the figure of 81.87 FF per metric ton which II — Conclusions of the parties the Annex referred to in Article 2 of Regula tion No 1670/69 fixes as the compensatory amount to be levied on the export of wheat The applicant claims that the Court should: or mesiin flour. — annul the contested decisions with all the The applicant argues that, in fixing this compensatory amount—the only one in consequences that that entails in law and issue in these proceedings—at 81.87 FF per as regards costs ; ton the Commission took into consideration — order the Commission to take the neces the fact that the price of wheat in France did not rise, but did not take account of non- sary measures to comply with the judg ment to be delivered, with the same con agricultural expenses contained in the cost
price of flour. Moreover the cost price did sequences in law; not remain the same after as before devalua — further, order all the necessary measures tion: in particular, the mill FOB charges of inquiry for the purposes mentioned and the price of sacking went up, the former above. from 3.00 to 3.37 FF (payable in foreign currency), the latter from 2.75 to 3.05 FF, In its interlocutory application the defen since imported products were involved. dant claims that the Court should : The Commission therefore fixed the dis
deciding in accordance with Article 91 of puted compensatory amount without taking the Rules of Procedure on the admissibility account of the fact that the total cost price of the original application, and without had gone up from 65.42 FF to 66.09 FF per going into the substance of the case: quintal and consequently infringed Regula tions Nos 1586/69 of the Council and — declare the original application inadmis 1679/60 of the Commission, as well as the sible; principle of equality between parties established by the Treaty. — order the applicant to pay the costs of the Secondly the applicant takes objection to proceedings. the retroactive effect given to the provisions in Articles 2 to 4 of the above Regulation In its submissions in response to the inter No 1670/69 by Article 6 thereof. locutory application the applicant contends The application was lodged at the Court that the Court should: Registry on 20 October 1969.
An interlocutory application was made to — dismiss the objection raised in the inter the Court by the defendant on 19 November locutory application and declare the 1969 raising an objection on the ground of original application admissible;
JUDGMENT OF 16. 4. 1970 — CASE 63/69
— on that ground refer the case for final defendant, that the provision fixing the com judgment in accordance with the pro pensatory amounts for exports has general visions of Article 91 (4) of the Rules of application in view of the following con Procedure; siderations :
— order the Commission to pay the costs of — the provision in question applies to the interlocutory application. objectively determined situations ;
— it has legal consequences for categories of III — Submissions and arguments of persons (and of transactions) which are the parties as to admissibility viewed in a general and abstract manner with reference to their share in the market for the product in question. The submissions and arguments of the parties as to the admissibility of the applica It also follows from the last consideration tion may be summarized as follows : that the applicant has no grounds for The defendant first alleges that, taken as a claiming that the fixing of the compensatory whole, Regulation No 1670/69 has general amount on exports is of individual concern application in that it determines, as regards to it, since there is nothing to distinguish it products subject to the common organiza in this respect from the other participants tion of the market in the rice and cereals in the market in question. sectors, the provisions for giving effect to the Considering it unnecessary to establish rules introduced by Regulation No 1586/69 whether the contested provision is of direct of the Council. Consequently the question concern to the applicant, the defendant raised by the present application is whether thereby concludes that this submission is in the two contested provisions constitute an admissible. exception in this respect, in that their nature is not primarily legislative, so that they can В — According to the defendant the appli be regarded as a decision of direct and in cation directed against the second para dividual concern to the applicants. It is graph of Article 6 of Regulation No 1670/69 from this viewpoint that the defendant is also inadmissible. Its main points in this develops its arguments, first as regards the context are as follows : fixing of the compensatory amount on exports and secondly as regards the provi — Since Article 2 of the above regulation is sion in Article 6, paragraph 2. in the nature of a regulation, any provi sion which, like the second paragraph of A — After outlining the situation produced Article 6, lays down the conditions of its on the one hand by the devaluation of the application ratione temporis, shares that French franc and on the other by the adop nature ; tion of Regulation No 1586/69 of the Council, the defendant concludes that the — The second paragraph of Article 6 has fixing of the amounts of the import sub general application and concerns the sidies and of the compensatory amounts applicant solely by reason of his being a charged on exports for common wheat member of a category which, moreover, forms an integral part of the machinery set is not the only category envisaged ; up by Regulation No 1586/69 of the Council and set in motion by Regulation No 1670/69 — if, moreover, Article 6 is considered in of the Commission. The position as regards relation to the fixing of the level of the common wheat is equally that of wheat or compensatory amount, that fixing is not mesiin flour, which are products of first- of direct and individual concern to the stage processing and therefore closely applicant in so far as it takes effect from bound up with the system applicable to 11 August 1969; common wheat. Moreover it is obvious, according to the — in this context it is not possible to rely on
COMPAGNIE FRANÇAISE COMMERCIALE ν COMMISSION
the fact that at the time when the regula the amount has to be fixed at a flat rate, it tion was adopted the persons concerned must take into account that increase in the by it were identifiable, in order to justify cost price. In any event it cannot be con the conclusion that they were at that sidered as affecting all the undertakings con time distinguished individually by virtue cerned in a similar fashion and this alone, of this fact, and thus that they were con according to the applicant, is sufficient to cerned as individuals; destroy the argument on the point set out in
the interlocutory application. — Such a view would make the contested Next the applicant claims that the case-law measure subject to two different sets of of the Court reveals that the concept of rules, the first applicable during the individuality does not imply that only one period of retroactivity, and the other for natural or legal person may be concerned by the remainder of the period of applica the measure in question; it can equally well tion of the measure, an unacceptable support the proposition that more than one result, according to the defendant. person can be affected, provided that such persons are clearly identifiable and that The applicant alleges, first, that the con their activities are carried out in the same tested provisions should be examined to see marketing centre.
That is precisely the case whether they are of direct and individual here, the undertakings affected having been concern to it without first stopping to con recognized as such by the Commission on duct an examination of the nature of these the date of the contested measure, the only provisions in abstracto. In this respect it date relevant in the present instance. refers to the judgment of the Court in Case On the other hand the contested provision 40/64 (Sgarlata and Others ν Commission also concerns the applicant directly by virtue of the EEC, [1965] E.C_R_ 215 et seq.). of the losses it has suffered consequent upon Next it remarks that it in no way contests the the fixing of the compensatory amount at principle underlying the fixing of the com
81.87 FF per metric ton. pensatory amount on exports of wheat or As regards the second head of its conclu mesiin flour, but solely the fixing of that sions the applicant notes that in the inter amount at the sum of 81.87 FF per metric locutory application it is claimed that the ton of flour. arguments used to support the submission It cannot be argued that this provision is not that the first head of the conclusions is in clearly of direct and individual concern to admissible are equally valid for the second. it, because the result of the fixing is a loss to It points out that the head of the conclusions it of 10.80 FF per metric ton exported, or directed against Article 6 is not a subsidiary 1.08 FF per quintal.
It is quite obvious that claim but a principal one, and invokes the the increase in the mill FOB charges and the same arguments against the submissions in sacking price is not the same for all the the interlocutory application as it used with various undertakings exporting flour and regard to the first head of the conclusions, that the charges must differ according to the and considers that no further observations geographical location of the factory and the are called for. size of the sacking plant. Thus, even though
Grounds of judgment
1 In an application lodged on 20 October 1969 the applicant seeks the annulment of Regulation No 1670/69 of the Commission of 22 August 1969 relating to certain measures in the cereals and rice sectors following the devaluation of the French franc (OJ, L 214 p. 7) in so far as it fixes at 81. 87 FF per metric ton the compensatory amounts payable on the export of wheat or mesiin flour and appearing in the annex
JUDGMENT OF 16. 4. 1970 — CASE 63/69
provided for in Article 2 and provides in Article 6 that the provisions in Articles 2 to 4 shall have effect from 11 August 1969.
2 In an interlocutory application lodged at the Registry on 21 November 1969 the defendant has raised an objection of inadmissibility under Article 91 of the Rules of Procedure, claiming that the measure in question was a regulation and was 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 form the subject-matter of the application are merely in the form of a regulation and do, in reality, constitute a decision 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 con junctural 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 organ ization 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 applicant acknowledges that these are general measures and therefore in the nature of a regulation, and admits that the fixing of the compensatory amounts for export and of the import subsidies on wheat, flour and mesiin are an integral part of the adjustment process and therefore have, in principle, general application.
7 However, according to the applicant the fixing of the contested rate of 81.87 FF per metric ton of flour exported affects the undertakings concerned unequally, since it has been calculated without taking into account the differing effects of the increase of certain constituent elements of the cost price, in particular transport and sacking costs, which are payable in non-French currency.
8 It says that since these costs vary according to the geographical location of the factory and the size of the sacking plant, the fixing of the contested amount does not
COMPAGNIE FRANÇAISE COMMERCIALE ν COMMISSION
have general and uniform effect but affects the various French exporters in different ways, and, therefore, individually.
9 The fact that a general provision does not have the same effect on all those subject to it is not in itself capable of depriving it of its character of a regulation.
10 It is, on the contrary, in the nature of a general provision that when uniformly applied it may affect persons concerned in different ways according to their particular situation or activities.
11 Furthermore, the applicant's view that it is individually concerned by the provision in question appears to rest on a false appreciation of the objective of the measures.
12 They are not intended to balance out the advantages and disadvantages of the devaluation of the French franc for dealers so as to ensure that their situation is
unaltered and to nullify the effects of the devaluation in their case.
13 On the contrary, the measures refrain from dealing with the range of individual effects which the devaluation might have and are intended exclusively to draw the quasi-automatic consequences of the devaluation on the price mechanisms which are expressed in units of account and laid down by the common agricultural rules.
14 These measures are therefore in the nature of regulations and do not concern the applicant individually.
15 Consequently the application directed against the fixing in the annex provided for by Article 2 of Regulation No 1670/69 of the compensatory amounts for exports of wheat or mesiin flour at 81.87 FF per metric ton is inadmissible.
16 The same applies to the application against Article 6 of the said regulation.
17 That article provides that the provisions of Articles 2 to 4 of the regulation shall have effect from 11 August 1969, and determines the method of treating trans actions occurring during the period of the suspension of the value of the unit of account.
18 The provision in question fixes the date from which the new provisions shall take effect.
JUDGMENT OF 16. 4. 1970 — CASE 63/69
19 In the absence of any misuse of powers, such a provision partakes of the general nature of the measures which it brings into effect.
20 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.
21 There is therefore nothing whatever to indicate that Article 6 is merely in the form of a regulation and concerns the applicant individually.
22 The result of the foregoing is that the application must be dismissed in its entirety as inadmissible.
Costs
23 According to Article 69 (2) of the Rules of Procedure the unsuccessful party shall pay the costs.
24 In the present instance the applicant has failed in its application.
25 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 ;
COMPAGNIE FRANÇAISE COMMERCIALE ν COMMISSION
THE COURT
hereby :
1. Dismisses the application as inadmissible;
2. Orders the applicant to bear the costs.
Lecourt Monaco Pescatore
Donner Trabucchi Strauß Mertens de Wilmars
Delivered in open court in Luxembourg on 16 April 1970.
A. Van Houtte R. Lecourt
Registrar President
OPINION OF MR ADVOCATE-GENERAL ROEMER DELIVERED ON 11 MARCH 1970
Mr President, 'The value of the unit of account... shall be Members of the Court, suspended, from the time of the official announcement by the Member State which In the three cases before us today, 63/69, first announces an alteration in the parity of 64/69 and 65/69, we are concerned with its currency, up to and including the day of certain measures taken by the Commission publication of the value thenceforth appli in the field of common organizations of cable'. The same Article provides further agricultural markets after the devaluation of that : 'Settlement of transataions involving the French franc in August 1969 in order to agricultural products or goods processed prevent an increase of prices in France. therefrom, where such transactions are In this context, it must be remembered that carried out during the suspension period the system of common agricultural prices is and are subject to provisions of the common based on the unit of account. It is therefore agricultural policy or to special trade plain that any modification of the parity of systems applicable, to those goods, shall the currency of a Member State could carry take place only after publication of the with it serious disturbances for the common value of the unit of account thenceforth system. Regulation No 653/68 of the applicable as provided for in the preceding Council of 30 May 1968 (OJ, L 123 p. 4) 'on paragraph and shall be based on the new conditions for alterations to the value of the value and take into account the alterations unit of account used for the common agri made pursuant to Articles 5 and 6'. Ac cultural policy' was adopted with the cordingly, immediately after the announce possibility of these modifications of parity ment of the decision of the French Govern in mind. Article 4 thereof provides that: ment relating to the modification of the
1 — Translated from the German.