C-64/69
ECLI:EU:C:1970:28
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JUDGMENT OF THE COURT 16 APRIL 19701
La Compagnie Française Commerciale et Financière S.A. y Commission of the European Communities2
Case 64/69
Summary
Measures adopted by an institution — Concept (EEC Treaty, Article 189)
Where a measure has the character of a The fact that a transitional provision is regulation that character is not called in applicable only to certain situations arising issue by virtue of the fact that the number before a date fixed by it and, therefore, and even the identity of the persons to whom often established before it comes into force, it applies at a given moment may be deter does not prevent that provision from being mined more or less precisely, provided that an integral part of the former and new it is clear that this application depends on provisions which it is designed to reconcile an objective legal or factual situation and, consequently, from partaking of their defined by the measure with reference to its general nature. purpose.
In Case 64/69
La Compagnie Française Commerciale et Financière S.A., having its registered office in Paris, assisted by André Vidait, 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
1 — Language of the Case: French. 2 — CMLR.
JUDGMENT OF 16. 4. 1970 — CASE 64/69
an address for service in Luxembourg at the Chambers of Emile Reuter, 4, boule vard Royal,
defendant,
Application for the annulment of:
1. The second subparagraph of Article 2 (1) (a) of Regulation (EEC) No 1660/69 of the Commission of 22 August 1969 on certain measures to be taken in the agricultural sector as a result of the devaluation of the French franc, which provides that : 'Where a refund may be fixed in advance the provisions of the foregoing subparagraph shall not apply unless this opportunity was made use of ;
2. Article 3 of the same regulation, in so far as it fixes the date of entry into force of the said regulation as 25 August 1969, by providing that the provisions of Articles 1 and 2 shall take 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 products subject to a common organization of the market, should not be too abrupt. To The facts of the case and the procedure this end Regulation No 1586/69 of the followed may be summarized as follows: Council (OJ L 202 1969 p. 1) provides in After the devaluation of the French franc, particular that, for a limited period, the the Council of the European Communities intervention prices payable by the French decided on 11 August 1969, first, not to authorities (in units of account) may be change the value of the unit of account and, reduced by 11.11 % (Articles 1 and 2). So as secondly, to issue a regulation containing to avoid trade difficulties which might result measures designed to ensure that the from this situation, Article 3 provides that adaptation to the situation thus created, France shall grant import subsidies and levy which would affect the French prices of compensatory amounts on exports. How-
COMPAGNIE FRANÇAISE COMMERCIALE ν COMMISSION
ever, Article 8 gives the Commission the graph of Article 173 of the EEC Treaty, with powers necessary to lay down the methods a request that Article 91 of the Rules of which include 'in particular the fixing of the Procedure be applied. amounts of the import subsidies and of the On 19 December 1969 the applicant pre compensatory amounts charged for ex sented its submissions on the objection. ports'. After hearing the report of the Judge- It was on the basis of this provision that the Rapporteur and the views of the Advocate- Commission adopted on 22 August 1969 General the Court decided to open the oral Regulation No 1660/69 (OJ L 213 p. 1) procedure with regard to the objection of which, in particular Articles 2 and 3 thereof, inadmissibility. forms the subject-matter of the present The parties presented oral argument at the dispute. hearing on 17 February 1970. Article 2 provides that the compensatory The Advocate-General delivered his opin amount charged on exports shall be reduced ion at the hearing on 11 March 1970. by an amount to be decided in respect of exports to third countries in accordance with a contract made before 11 August 1969 II — Conclusions of the parties in which the selling price was expressed in
French francs. However, the second sub paragraph of Article 2 (1) (a) provides that The applicant claims that the Court should : where a refund may be fixed in advance the provisions of the foregoing subparagraph — annul the contested decisions with all shall not apply unless this opportunity was the consequences that that entails in law made use of. and as regards costs ; Under Article 3 the regulation was to come into force on 25 August 1969 but the pro — further, order all the necessary measures visions of Articles 1 and 2 were to take of inquiry for the purposes mentioned effect as from 11 August 1969. above.
The applicant has lodged an application directed against the restriction imposed by In its interlocutory application the defendant Article 2 (1) (a) on the application of the claims that the Court should: preceding provision. It argues that it is deciding in accordance with Article 91 of wrong to penalize an exporter by excluding the Rules of Procedure on the admissibility him from the application of transitional of the original application, and without measures made necessary by force of going into the substance of the case : circumstance on the ground that he did not make use of a possible course of action — declare the original application in which itself was not obligatory but purely admissible ;
optional. By doing this the Commission is said to have — order the applicant to pay the costs of infringed Article 16 (3) of Regulation the proceedings. No 120/67 of the Council of 13 June 1967, and the principle enshrined in the Treaty In its submissions in response to the inter that all the parties must be treated equally. locutory application the applicant contends Secondly, the applicant objects to the that the Court should: retroactive effect given to the provisions of Articles 1 and 2 — the entire regulation — — dismiss the objection raised in the inter by Article 3. locutory application and declare the The application was lodged at the Court original application admissible;
Registry on 22 October 1969. An interlocutory application was made to — on that ground refer the case for final the Court by the defendant on 26 November judgment in accordance with the pro 1969 raising an objection on the ground of visions of Article 91 (4) of the Rules inadmissibility, based on the second para- of Procedure ;
JUDGMENT OF 16. 4. 1970 — CASE 64/69
— order the Commission to pay the costs Moreover, according to the defendant the of the interlocutory application. applicant cannot claim that the contested measures are of individual concern to it. The defendant points out in this respect that III — Submissions and arguments the applicant does not claim to be in the of the parties as to admissi situation to which those measures refer. bility Even if that were the case the provision in the second subparagraph of Article 2 (1) (a) only affects the applicant's interests in its The submissions and arguments of the capacity as a member of a category of parties as to the admissibility of the dealers viewed in the abstract.
The fact application may be summarized as follows : that the provision applies to situations in The defendant claims that the application the past is of no significance here because is inadmissible both because of the nature persons who had concluded contracts of the contested measures and because they during that period cannot claim that this do not concern the applicant individually. fact alone makes them a closed group Regarding the nature of the provision in identifiable in the same way as those to the second subparagraph of Article 2 (1) (a) whom a decision is addressed. the defendant argues in particular : On the basis that, on the one hand, the same arguments apply in relation to Article 3 — that the fixing of the compensatory and, that on the other, it is unnecessary to amounts charged on exports of agri decide whether the contested provisions cultural products pursuant to Regulation are of direct concern to the applicant, the No 1586/69 of the Council is essentially defendant concludes that the application legislative in nature; is inadmissible. The applicant argues in the first place that — that the first paragraph of Article 2 (1) (a) the contested provisions should be examined of Regulation No 1660/69 is a provision to see whether they are of direct and creating a temporary exception to the individual concern to it without first general rule concerning the levying of the stopping to consider the nature of those said compensatory amounts, and as such provisions in abstracto.
In this respect it shares the general and abstract nature refers to the judgment of the Court in Case of that general rule; 40/64 (Sgarlata and Others ν Commission of the EEC [1965] E.C_R_ 215 et seq.). The — that the second subparagraph of Article applicant claims in any case that the 2 (1) (a), for its part, imposes a restriction argument used by the defendant, to the on that exception and thus it, too, shares effect that a provision imposing a restriction the general and abstract nature of the on an exception to a general rule necessarily general rule; shares the nature of a regulation enjoyed by the latter rule, is misconceived. — that, furthermore, the contested measure The contested provision does not apply to applies to objectively determined situ persons viewed in a general and abstract ations and involves legal consequences manner but, on the contrary, to clearly for categories of persons viewed in a ascertained persons known to the Com general and abstract manner. mission at the time when the relevant regulation was adopted, that is, exporters As far as the nature of Article 3 of Regu
having concluded export contracts in lation No 1660/69 is concerned, the defend French francs before 11 August 1969 and ant contends that this provision, by virtue who had not taken advantage of the of the fact that it determines the application opportunity of fixing the export refund in ratione temporis of provisions the nature of advance. which it considers it has sufficiently shown This is what makes the provision of indi to be that of regulations, has that same vidual concern to the applicant in view of legislative nature. the fact that it had made a number of
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contracts under the circumstances indicated the subject-matter of Joined Cases 106 and above. 107/63 ([1965] E.C.R. 405 et seq.). Whereas As regards the second head of its conclu in that case the decision of the Commission sions the applicant notes that in the inter actually concerned a determined and locutory application it is claimed that the known number of dealers defined as such, arguments used to support the submission the present case concerns a provision that the first head of the conclusions is partaking of the nature of a regulation inadmissible are equally valid for the second. laying down a transitional rule which affects It points out that the head of the conclusions the applicant only inasmuch as it belongs directed against Article 3 is not a subsidiary to the abstractly defined group to which claim but a principal one, and invokes the the regulation applies. same arguments against the submissions in The applicant claims that, on the contrary, the interlocutory application as it used with the two cases are perfectly comparable to regard to the first head of the conclusions, each other; when the Commission adopted and considers that no further observations a regulation on 22 August 1968 concerning are called for. contracts concluded before 11 August it Lastly, the applicant claims that the knew full well that the provision would contested provisions are of direct concern apply only to a certain restricted number to it by reason of the contracts which it has of contracts, arid, therefore, of dealers. concluded. At the Court's request the defendant In the oral proceedings the defendant declared its willingness to supply a list of alleged that the present case could not be the contracts to which the provision in compared with the situation which formed question applied.
Grounds of judgment
1 In an application lodged on 22 October 1969 the applicant has applied for the annulment of Regulation (EEC) No 1660/69 of the Commission of 22 August 1969 on certain measures to be taken in the agricultural sector as a result of the devalua tion of the French franc (OJ L 213 p. 1) in so far as it provides in the second sub paragraph of Article 2 (1) (a) that 'Where a refund may be fixed in advance the provisions of the foregoing subparagraph shall not apply unless this opportunity was made use of, and provides in Article 3 that Articles 1 and 2 shall take effect from 11 August 1969.
2 In an interlocutory application lodged at the Registry on 26 November 1969 the defendant has raised an objection of inadmissibility under Article 91 of the Rules of Procedure, claiming that the measures in question were regulations and were not of individual concern to the applicant.
3 It is therefore for the Court to examine in the light of Article 173 of the Treaty whether the provisions which formed the subject-matter of the application are merely in the form of a regulation and do, in reality, constitute decisions of individual concern to the applicant.
JUDGMENT OF 16. 4. 1970 — CASE 64/69
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 contested provisions are transitional measures designed to govern the effects of the alterations of the amounts, expressed in French francs, with regard to situations which arose under the previous provisions relating to the common agricultural policy.
7 They provide in particular that transactions relating to exports which are the subject- matter of contracts of sale concluded in French francs before 11 August 1969 shall not be wholly subject to the obligation to pay a compensatory amount provided, however, that in cases where a refund may be fixed in advance that opportunity was made use of.
8 It is also provided that the provisions in question are to take effect as from 11 August 1969.
9 The applicant denies that the contested provisions are general in character and have the nature of regulations, claiming that the restriction imposed on the scheme provided for exports which are the subject-matter of contracts of sale concluded before 11 August in French francs, and the choice of 11 August as the date on which the scheme should come into effect, are of direct and individual concern to him.
10 The group of undertakings to which the condition objected to applies is defined, according to the applicant, since the undertakings are accurately known or identi fiable from before the date on which the contested provision was adopted.
11 Where a measure has the character of a regulation that character is not called in issue by virtue of the fact that the number and even the identity of the persons to
COMPAGNIE FRANÇAISE COMMERCIALE ν COMMISSION
whom it applies at a given moment may be determined more or less precisely, provided that it is clear that this application depends on an objective legal or factual situation defined by the measure with reference to its purpose.
12 The fact that a transitional provision is applicable only to certain situations arising before a date fixed by it and, therefore, often established before it comes into force, does not prevent that provision from being an integral part of the former and new provisions which it is designed to reconcile and, consequently, from partaking of their general nature.
13 There is also no doubt that Article 3 of Regulation No 1660/69, providing that the provisions of Articles 1 and 2 shall take effect from 11 August 1969, has the nature of a regulation.
14 The provision in question fixes the date from which the new provisions shall take effect.
15 In the absence of any misuse of powers, such a provision partakes of the general nature of the measures which it brings into effect.
16 In any event the choice of 11 August as the date was necessary from an objective point of view, since the adjustment of the intervention mechanisms of the common agricultural policy to the devaluation of the French franc had to be accomplished at the earliest possible date, that is, from the entry into force of Regulation No 1586/69.
17 There is therefore nothing whatsoever to indicate that Article 6 was merely in the form of a regulation and concerns the applicant individually.
18 The result of the foregoing is that the application must be dismissed as inadmissible.
Costs
19 According to Article 69 (2) of the Rules of Procedure the unsuccessful party shall pay the costs.
го In the present instance the applicant has failed in its application.
21 It must therefore be ordered to pay the costs.
JUDGMENT "OF 16. 4. 1970 — CASE 64/69
On those grounds,
Upon reading the pleadings ; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties ; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 173 and 189; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,
THE COURT
hereby :
1. Dismisses the application as inadmissible;
2. Orders the applicant to bear the costs.
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
(See Case 63/69, p. 213)