C-42/71
ECLI:EU:C:1972:16
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JUDGMENT OF THE COURT 8 MARCH 1972<apnote>1</apnote>
Nordgetreide GmbH & Co. KG v Commission of the European Communities<apnote>2</apnote>
Case 42/71
Summary
Measures adopted by an institution — Act of the nature of a regulation — Applications by individuals — Category of persons viewed in the abstract and in its entirety — Inadmis sibility of the application (EEC Treaty, Article 173)
The conditions to which, under Article belonging to a category viewed in the 173(2), proceedings by individuals against abstract and in its entirety and not as the the acts of institutions are subject are not person to whom an act of direct and fulfilled if a natural or legal person is individual concern to him is addressed. affected by such an act by reason of his
In Case 42/71
Nordgetreide GmbH & Co. KG, whose registered office is at Obersickete (Federal Republic of Germany) represented by Erich Siebert and Horst G. Bens, of the Brunswick Bar, with an adress for service in Luxembourg at the chambers of Ernest Arendt, 34b rue Philippe-II,
applicant,
v
Commission of the European Communities, represented by its Legal Adviser, Peter Gilsdorf acting as Agent, with an address for service in Luxembourg at the office of its Legal Adviser, Émile Reuter, 4 boulevard Royal,
defendant,
Application, at the present stage of the proceedings, for a declaration of the admissibility of the action in which the applicant company claims that goods referred to under heading 11.02 of the Common Customs Tariff, in particular
1 — Language of the Case: German. 2 — CMLR.
JUDGMENT OF 8.3.1972 — CASE 42/71
flaked barley (subheading 11.02 E 1(b) 1) and certain categories of cereal groats and maize meal (subheading 11.02 A V(a) 1) shall be included in the list of products contained in Annex I to Regulation No 1014/71 of the Commission of 17 May 1971 fixing the compensatory amounts provided for by Regulation No 974/71 on certain measures of conjunctural policy to be taken in agriculture following the temporary widening of the margins of fluctuation for the currencies of certain Member States and to Regulation No 1272/71 of the Commission of 17 June 1971 altering the said compensatory amounts,
THE COURT,
composed of: R. Lecourt, President, J. Mertens de Wilmars and H. Kutscher, Presidents of Chambers, A. M. Donner, A. Trabucchi, R. Monaco and P. Pescatore (Rapporteur), Judges,
Advocate-General: K. Roemer
Registrar : A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Summary of the facts difficulties as regards the proper function ing of the common agricultural market Because certain foreign exchange markets because trade to which the current rate of within the Community had been dis exchange applied could be done at a price, tributed by speculative movements in in national currency, lower than the inter volving an abnormal influx of short vention or buying-in prices laid down by term capital, the Council of the Com Community rules on the basis of the munities by resolution of 9 May 1971 official parity. For this reason, the Council, (JO C 58, 1971, p. 1) 'was prepared to by Regulation No 974/71 of 12 May 1971 envisage' that in certain circumstances on certain measures of conjunctural Member States which had recorded an policy to be taken in agriculture following abnormal influx of short-term capital the temporary widening of the margins of might, for a limited period, widen the fluctuation for the currencies of certain margins of fluctuation for the exchange Member States (OJ L 106, p. 1, English rates of their currencies in relation to their Special Edition, 1971 (I) p. 257), author official parities. ized Member States which, for the purposes Any appreciable deviation, in one Member of commercial transactions, allowed the State, of the current rate of exchange from exchange rate of their currencies to fluc the official parity was liable to create tuate by a margin wider than the one
NORDGETREIDE ν COMMISSION
permitted by international rules (among (subheading 11.02 A V(a) 1), because them the Federal Republic of Germany) these processed products were not in in certain circumstances to charge com cluded in the said annex. pensatory amounts on certain imports By telex of 26 May 1971, confirmed by of agricultural products and to grant telex of 4 June 1971, Nordgetreide drew them on certain exports. the Commission's attention to the situation Under Article 1(2) of Regulation No and asked it to add to the list of products 974/71, these compensatory amounts were to which the system of compensatory applicable, first, to products covered by amounts on exports applies. intervention arrangements under the com ay telex of lb June the Deputy Director- mon organization of agricultural markets General of the Directorate-General for and, secondly, to products whose price Agriculture of the Commission informed depends on the price of the first mentioned Nordgetreide that the fixing or the non- products and which are governed by the fixing of the compensatory amounts was common organization of agricultural mar without doubt liable to create difficulties kets or are the subject of a specific arrange in trade in certain products but that, in ment under Article 235 of the EEC certain cases in which the market situation Treaty. justified the belief that the application of In Annex I to Regulation No 1014/71 of the monetary measures concerned would 17 May 1971 fixing the compensatory not lead to disturbances in trade, the amounts provided for by Regulation No necessarily general character of the meas 974/71 (JO L 110, 1971, p. 10) as amended ures adopted had persuaded the Com in particular by Regulations Nos 1033/71 mission not to fix compensatory amounts. of 19 May 1971 (JO L 112, 1971, p. 26) Having failed to obtain the Commission's and 1272/71 of 17 June 1971 (JO L 133, agreement that it should, in accordance 1971, p. 1), the Commission published a with the request which had been made to list of products to which the system of it, add to the list of products to which the compensatory amounts could be applied. system of compensatory amounts applies, With the exception of cereal groats and Nordgetreide brought proceedings before cereal meal (common wheat) referred to the Court by application lodged on 21 July in subheading 11.02 A 1(b) the list did not 1971.
include any of the goods coming under By Regulation No 1687/71 of 30 July 1971 heading 11.02 of the Common Customs amending the annexes to Regulation No Tariff, which applies to certain products 1014/71 with respect to the compensatory processed from cereals. amounts applicable in agriculture following Nordgetreide, an undertaking trading in the temporatory widening of the margins of cereals and products manufactured by the fluctuation for the currencies of certain processing of cereals, procures on the Member States (JO L 173, 1971, p. 1), the world market the maize and barley which Commission added to the list of products it processes in its own establishments into, for which compensatory amounts are fixed respectively, meal for the brewing in and included in particular flaked barley dustry and flaked barley. (tariff subheading 11.02 E 1(b) 1) and These processed products are intended for maize groats and meal of a fat content not export to Denmark and Poland. exceeding 1.5% by weight for the brewing Because maize under tariff subheading industry (subheading 11.02 A V(a) 1). 10.05 B and barley (heading 10.03) are included among the cereals in Annex I to Regulation No 1014/71, Nordgetreide had II — Procedure to pay a compensatory amount on their importation. On the other hand, the undertaking did not receive any compen In its application of 21 July 1971 origi satory amount on exports of flaked barley nating the proceedings, Nordgetreide (subheading 11.02 E 1(b) 1) or of maize claimed, under Article 173 and, alter groats and meal for the brewing industry natively, Article 175 of the EEC Treaty,
JUDGMENT OF 8.3.1972 — CASE 42/71
that goods coming under heading 11.02 decided to open, without any preparatory of the Common Customs Tariff, in par inquiry, the oral procedure on the ad ticular flaked barley and maize groats and missibility of the action under Article 91 flour for the brewing industry, should be of the Rules of Procedure. By order of included in the lists of products to which 13 January 1972 the President of the Court the system of compensatory amounts designated Mr Karl Roemer as Advocate-
applies. General in the place of Mr A. Dutheillet In its statement of defence lodged on 9 de Lamothe, deceased. The parties sub October 1971, the Commission asked that mitted their oral observations on the ad the Court should, first, rule that, by reason missibility of the application at the hearing of entry into force on 2 August 1971 of on 26 January 1972. The Advocate- Regulation No 1687/71, there was no General delivered his opinion on the ad longer any cause of action and, secondly, missibility of the application at the hearing in the alternative, that it should rule on on 3 February 1972. the question of the admissibility of the application without going into the sub
III — Submissions and arguments of stance and dismiss it as inadmissible. the parties on the admissibility The Commission contends that the Court of the application should consider of its own motion whether there is any cause of action on which it can rule. The submissions and arguments of the In the present case, the aim pursued by parties on the admissibility of the applica the applicant, namely the inclusion of tion may be summarized as follows. certain products processed from cereals in The Commission, defendant in the main the list of goods appearing in Annex I to action and applicant in the preliminary Regulation No 1014/71 (and to Regulation action, contends that the application is No 1272/71) and, thereby, the application inadmissible as regards both its main and to these products of the system of compen its alternative conclusions. satory amounts, was achieved by entry into force on 2 August 1971, which is after the (a) The main conclusion, based on Article proceedings were commenced, of Regula 173 of the EEC Treaty, is inadmissible on tion No 1687/71 of the Commission. the following grounds : In observations lodged on 16 November The question whether the negative attitude 1971, Nordgetreide, in the first place, adopted by an institution constitutes an declared that it maintained the conclusions actionable decision must be considered in its application in their entirety and, in in the light of the object of the conclusion the second place, concluded that the Court itself; as it has no legal effect of itself, an should dismiss the objection of inad attitude is something of merely secondary missibility raised by the Commission.
It importance. The aim pursued by the claimed that the conditions for ruling that applicant is the amendment of an act of there was no cause of action did not apply the nature of a regulation, Regulation since the object of the application was to No 1014/71, by a fresh act of the nature secure inclusion of the products concerned of a regulation. A natural or legal person in the list of goods to which, since the date may, however, institute proceedings against when Regulation No 1014/71 came into a regulation only if it is of direct and in effect, 12 May 1971, that regulation dividual concern to that person; for the applies. present application to be admissible the Having heard the report of the Judge- applicant must, accordingly, be directly Rapporteur and the views of the Advocate- and individually concerned by the act of General, the Court, having also established the nature of a regulation which the Com that it was not possible for it, without mission should, according to the applicant, going into the substance of the dispute, to have adopted in order to supplement rule on the objection raised by the Com Regulation No 1014/71.
This is manifestly mission that there was no cause of action not the case.
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Such an act is not of direct and individual action, and defendant in the preliminary concern to the applicant; the fixing of action, submits the following main argu compensatory amounts for the products ments against the objection of inadmissi involved affects an indefinite number not bility raised by the Commission. only of exporters but also of importers in Since the Commission itself admits that it several Member States. Consequently, the defined its position on the applications applicant cannot be affected thereby on which the applicant addressed to it on 26 account of certain attributes which are May and 4 June 1971, the admissibility or peculiar to it or of factual circumstances otherwise of the application must be which distinguish it from every other appraised exclusively in the light of Article person and, for this reason, identify it in 173 of the EEC Treaty. the same way as a person to whom an act Regulation No 1014/71 can be broken down is addressed is identified. into a collection of individual decisions; Regulation No 1014/71 in no way con the annexes thereto affect the legal position stitutes a collection of individual decisions ; of only a small number of specific pro this could be the case only in circum ducers or undertakings whose identity and stances where the act affects a predeter character were readily ascertainable.
In mined number of persons. any case the Commission intended to Another reason which makes it doubtful exclude a particular category of milled whether the applicant can be directly products from the application of the concerned is that Regulation No 1014/71 regulation; the undertakings which work in amounts to no more than a measure this branch of industry constitute a closed enabling certain Member States to charge and clearly defined group. or grant compensatory amounts. The applicant is one of the few German undertakings affected by the fact that (b) The alternative conclusion, based on Regulation No 1014/71 did not provide Article 175 of the EEC Treaty, is also for the products concerned to be included inadmissible. amongst those to which the system of There cannot be an action for failure to act compensatory amounts applies.
The ex when, as in the present case, the institution, ceptionally heavy loss suffered by the after being asked to act, took a decision applicant also demonstrates that Regula even though a negative one. It is clear from tion No 1014/71 of the Commission and the case-law of the Court that, under the subsequent conduct of the latter are of Article 175, failure to act means refraining individual concern to it. from ruling or defining a position and not With regard to the second condition of the adoption of an act which differs from admissibility it must be borne in mind that what those concerned would have liked or the Federal Republic of Germany has
believed necessary. In the present case the made full use of the authorization which it telex of 16 June 1971 by which, in the name has received from the Community in of the Commission, the Deputy Director- stitutions on the subject of compensatory General of the Directorate-General for amounts. The list, as it was adopted by the Agriculture informed the applicant of the Commission, of products to which this reasons why it did not appear necessary to system can be applied determines when fix compensatory amounts for the products compensatory amounts should or should concerned, certainly constituted a defini not be applied.
Regulation No 1014/71 tion by the institution of its position. is the decisive factor in placing the appli Again the Commission is under no obliga cant in the position in which it finds itself; tion to the applicant to promulgate any it is accordingly of individual concern to particular legislative act. it within the meaning of Article 173 of the Nordgetreide, the applicant in the main EEC Treaty.
JUDGMENT OF 8.3.1972 — CASE 42/71
Grounds of judgment
1 By application of 21 July 1971, the applicant has, under Article 173 of the EEC Treaty, claimed annulment of the communication of 16 June 1971 in which the Commission refused to accede to its request, submitted on 26 May 1971 and confirmed on 4 June following, that goods referred to under heading 11.02 of the Common Customs Tariff, in particular flaked barley (subheading 11.02 E I(b) 1) and certain categories of maize groats and meal (subheading 11.02 A V(a) 1), should be included in the list of products contained in Annex I to Regulation No 1014/71 of the Commission of 17 May 1971 fixing the compensatory amounts provided for by Regulation No 974/71 of the Council on certain measures of conjunctural policy to be taken in agriculture following the temporary widening of the margins of fluctuation for the currencies of certain Member States (JO L 110, 1971, p. 10) and in Annex I to Regulation No 1272/71 of the Commission of 17 June 1971 altering the said compensatory amounts (JO L 133, 1971, p. 1).
2 In the alternative, the applicant claims under Article 175 of the EEC Treaty that the Court should find that the Commission has, in breach of the Treaty, failed to give a ruling on its request.
3 Since the Commission requested that Article 91 of the Rules of Procedure should be applied, the Court decided to rule on the admissibility of the action without going into the substance.
4 Since the Commission, within the time-limit fixed by Article 175, defined its position in its communication of 16 June 1971, the conditions for application of that article are not satisfied; the admissibility of the action must, in con sequence, be considered in the light of Article 173 alone.
5 Since the definition by the Commission of its position amounts to a rejection it must be appraised in the light of the object of the request to which it constituted a reply. The object of the request was the inclusion in the annex to Regulations Nos 1014/71 and 1272/71 of the products of concern to the applicant; it accord ingly sought amendment of a regulation by an act which would itself have taken the form of a regulation. In fact, inclusion in the annex to the regulations con cerned of the products referred to by the applicant would have had the effect of applying the system of compensatory amounts to all exports and, furthermore, to all imports of the products involved to the advantage or the disadvantage, as the case may be, of any and every exporter or importer. Such a provision would have affected the applicant only in so far as it belongs to a category viewed in the abstract and in its entirety and not as the person to who an act of direct and individual concern to him was addressed. In consequence there is a want of the
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conditions to which under Article 173(2) proceedings by individuals against the acts of the institutions are subject.
6 The application must therefore be dismissed as inadmissible.
Costs
Under Article 69(2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
The application has been declared inadmissible.
On those grounds,
Upon reading the pleadings ; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the parties on the admissibility of the action ; Upon hearing the opinion of the Advocate-General on the admissibility of the action; Having regard to the Treaty establishing the European Economic Community, especially Articles 173 and 175; Having regard to the Protocol on the Statute of the Court of Justice of the Euro pean Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 91 and 69,
THE COURT
hereby :
1. Dismisses the application as inadmissible;
2. Orders the applicant to bear the costs of the action.
Lecourt Mertens de Wilmars Kutscher
Donner Trabucchi Monaco Pescatore
Delivered in open court in Luxembourg on 8 March 1972.
A. Van Houtte R. Lecourt
Registrar President