C-100/74

THE COURT

composed of: R. Lecourt, President, A. M. Donner, J. Mertens de Wilmars, P. Pescatore, M. Sørensen, Lord Mackenzie Stuart and A. O'Keeffe, Judges,

Advocate-General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

The facts and the arguments of the I — Facts and procedure parties put forward during the written procedure may be summarized as 1. Article 16 of Regulation No follows: 120/67/EEC of the Council of 13 June

provides that for certain products — to prices as 'a result of this regulation', including barley 'the export refund shall be adopted by the Commission. applicable on the day on which the application for the licence is lodged, On that basis the Commission adopted adjusted on the basis of the threshold the regulation at issue, which provides price valid in the month of exportation that exports of cereals in respect of shall be applied'. which the advance-fixing certificate is dated prior to 7 October 1974, shall not In fact, according to the wording of benefit from the exceptional increase in Regulation No 120/67 threshold prices the threshold price because it is (in the same way as target prices and reasonable to believe — having regard to intervention prices) although fixed in the duration of validity of certificates (in principle for a complete marketing year the present case until 16 October) — that (Article 5 (6)) are, in accordance with the exporters concerned had already Article 6 the subject of monthly increases covered themselves by purchasing before justifiable, according to a recital in the the increase laid down by the Council on preamble to the regulation, by the 2 October 1974. necessity to take account, among other things of storage costs and interest CAM. had on 19 July 1964 obtained an charges. An increase in the threshold export licence for 10 000 metric tons of price therefore means a corresponding barley, valid until 16 October 1974 with increase in the refund. advance fixing of the refund at nil. Between the 7 and 16 October it Having regard to the difficulties in the exported the remainder, that is, 3 978 agricultural sector caused, during the metric tons and complains of having summer of 1974, in particular by the been refused in respect of these tonnages increase in costs of production the increase in the refund consequent aggravating the effects of inflation on upon the exceptional increase in agriculture, the Council by Regulation agricultural prices decided upon by the No 2496/74 (OJ L 268 of 3. 10. 1974) 'by Council. In its opinion, the provision of the Council on which this refusal is way of derogation from the principle of the annual fixing of prices made an based and which concerns it directly and increase of 5 % in the common prices of individually is illegal and must be

annulled. Its application, which was refunds which were the subject of registered at the Court Registry on 19 advance fixing and in respect of December 1974 and which is directed which the application was lodged against the European Economic prior to 7 October 1974, should not Community acting through the Council be adjusted in relation to that part of and the Commission is for the the increase in the threshold price annulment 'of the Community measure which resulted from the increase in entitled 'Regulation No 2546/74 of the agricultural prices on 7 October 1974; Commission. c) order the European Economic Community appearing through the By an application on a procedural issue, Council of the European Community registered on 11 February 1975, the and the Commission of the European Council raised an objection of inad­ Community to pay all costs. missibility based on the fact that the measure in dispute did not originate The Commission contends that the from it and asked the Court to come to a Court should: decision in accordance with Article 91 of — reject the application as inadmissible the Rules of Procedure on that objection or in any case as unfounded; without, in so far as the Council was — order the applicant to pay the costs. concerned, going into the substance of the case. III — Submissions and argu­ By order of 12 May 1975 1 the Court ments of the parties declared the application to be inad­ missible to the extent to which it was 1. The applicant considers its directed against the Council. The written application to be admissible because procedure followed the normal course as Regulation No 2546/74 of the regards the application directed against Commission does not amount to a the Commission. provision having general application within the meaning of the second The Court, on hearing the report of the paragraph of Article 189 of the Treaty, Judge-Rapporteur and the views of the but constitutes a group of individual Advocate-General, decided to dispense decisions in the form of a regulation, with any preparatory inquiry. directly and individually concerning a limited number of addressees, including the applicant. It relies in this respect II — Conclusions of the parties upon the judgments of the Court in Joined Cases 16 and 17/62 (Judgment The applicant claims that the Court of 14 December 1962, Confederation should: nationale des producteurs de fruits et a) declare its application for the legumes, [1962] ECR 471), and Joined annulment of the Community Cases 41 to 44/70 (Judgment of 13 May measure entitled 'Regulation (EEC) 1971, International Fruit Company, Rec. No 2546/74 of the Commission of 4 1971, p. 411), which stressed the October 1974' to be admissible and distinction between decisions 'in the well founded; form of a regulation' within the meaning b) annul the said measure in its entirety, of the second paragraph of Article 173 or, in the alternative, annul it at least and regulations properly so called on the to the extent to which it decided that, basis of the limited number of persons or as regards the products coming under undertakings liable to be affected by the Regulation No 120/67, the export contested measure and the fact that this number was known at the time of the 1 — See p. 1417. adoption of the contested measure.

2. Moving to an examination of the 7 October 1974 with a view to bringing substance of the case, the applicant into operation the decision to increase claims that the contested measure agricultural prices by 5 %, which was infringed, on the one hand, Regulation laid down by Regulation No 2496/74 of No 120/67 of the Council and, on the the Council. Taking into account the fact other, the principle of the protection of that detailed legislation would be legitimate expectation.

Regulation No of an export licence the applicant has a 2546/74 thus partook of the general vested right in the application of Article nature of Regulations Nos 2496/74 and 16 (4). By deciding that the refund to be 2518/74 with which it forms an returned to him would not be adjusted in indissoluble whole. accordance with the increase in threshold prices consequent upon Regulation No The applicant, further, is not individually 2496/74, the Commission has infringed concerned either by Regulation No this right. 2546/74 which concerns not only holders of licences for which refunds

3. In its statement of defence the has the character of a regulation that Commission disputes the admissibility of character is not called in issue by virtue of the fact that the number and even the the application. It considers, in the first place, that Regulation No 2546/74 identity of the persons to whom it constitutes a measure having a legislative applies at a given moment may be function and that, in any case, the determined more or less precisely, applicant is not individually concerned, provided that it is clear that this within the meaning of the second application depends on an objective legal paragraph of Article 173, by that or factual situation defined by the

Regulation No 2546/74 is one of a series On the other hand although the of measures, all entering into force on retroactivity of a contested measure has

JUDGMENT OF 18. II. 1975 — CASE 100/74

Council amending agricultural prices. The applicant has on the other hand no 4. As regards the substance of the case vested right on which to rely. At the time the Commission emphasizes in the first of the issue of the licence, on 19 July place that the decision to increase 1974, Article 16 (4) of Regulation No agricultural prices was not only 120/67 of the Council did not give a exceptional but also unforeseeable at the guarantee to increase the refund, but time when the applicant obtained the held out a mere prospect, in relation licences for which the disputed refunds furthermore to the annual threshold had been fixed in advance. Examining price for the marketing season next the economic justification for the 1974/1975 and the monthly increases contested regulation, the Commission provided for by that very provision, but mentions that the adjustment of the not in relation to a higher threshold refunds and levies to the increase in the price consequent upon an exceptional threshold price, a consequence of the and unforeseen rise in agricultural prices. exceptional rise in agricultural prices, had unjustified consequences for im

In the present threshold prices was not foreseeable. case the Community, by Regulation No 2546/74 of the Commission decided As advance fixing must allow traders to precisely that the increase should not enter into contracts for the duration of affect these threshold prices. Lastly the the validity of the licences, it was mere prospect of an adjustment, if there reasonable to take the view that the was indeed such a prospect, never products to be exported under a licence became a vested right since Regulation granted before 7 October involving No 2546/74, excluding the adjustment, advance fixing would already have been took effect on the same day as the subject of purchases on the the Council Regulation amending Community market at prices not yet agricultural prices, that is to say on affected by the Council's decision. 7 October 1974.

adjustment of refunds fixed in advance to within the scope of Article 4 of the increases in agricultural prices during Regulation No 2496/74 of the Council, the marketing year. Further, it was as its provisions constitute neither fully justified, in the opinion of the 'Detailed rules for the application of Commission, in not adjusting the refunds Articles 1 and 2' of Regulation No fixed in advance prior to 7 October 1974. 2496/74, nor 'transitional measures' nor alterations to be made as a result of 5. In its statement in reply the Regulation No 2496/74 'to other prices applicant maintains that Regulation No and amounts fixed within the context of 2546/74 was applicable only to a fixed the common agricultural policy'. number of addressees perfectly known or identifiable and cannot consequently be As regards the 'vested rights' of the regarded as a measure having a legislative applicant, the latter considers that the function. It is moreover factually untrue categorical wording of Article 16 (4) of that this regulation is closely linked to Regulation No 120/67 guaranteed it the Regulations Nos 2496/74 of the Council adjustment of the refund in relation to and 2518/74 of the Commission and forms an indissoluble whole with them. the threshold price in force during the month of export. Article 16 in this According to the very wording of the respect makes no distinction dependent recitals in the preamble to Regulation upon the cause of price modifications. No 2546/74 its provisions had the sole purpose of preventing the adjustment of Lastly, the applicant is of the opinion the levies on imports and refunds on that as regards the protection of exports related to the increase in legitimate expectation it was entitled to threshold prices of 7 October 1974 from count upon the application of Regulation having the effect 'of increasing such levies and refunds' in a manner for No 120/67 during the whole period of validity of the export licence which had which there is no economic justification. been issued to it on 19 July 1974, since The applicant considers that the the said regulation amounted to a provisions of Regulation No 2546/74 categorical promise of modification of concern it individually since it was the export refunds in relation to variations of holder of an export licence, valid until 16 the threshold price which might occur October 1974, for which the refund had during the period of validity of the been fixed in advance, and in respect of which on 7 October it still had 3 978 export licences. tons to export. It is therefore admissible 6. In its rejoinder the Commission for it to ask for the annulment, if not of admits that, logically, the contested the whole of Regulation No 2546/74, regulation is not indispensable to the then at least of its provisions concerning application of Regulations Nos 2496/74 export refunds which were the subject of of the Council and 2518/74 of the advance fixing. Commission. From the point of view of As to the powers of the Commission to their economic objectives however, the decide on the non-adjustment of refunds, three regulations must be regarded as a

whole. The Commission relies on the to the unusual and exceptional nature of judgment of the Court of 16 April 1970 an alteration in prices during a (Case 64/69, Compagnie française marketing year, which was liable to lead commerciale et financière v Commission, to unforeseeable consequences. [1970] ECR 227) in which the Court held that a transitional provision could be an As regards the protection of vested rights, integral part of the former and of the the Commission does not accept the new provisions which it is designed to argument that the applicant had the reconcile and consequently can partake guarantee of an increase in the amount of their general nature. of refunds following the adjustment of prices. The Commission did not make 7. On the substance of the case the any distinction between the causes of Commission mentions as to its powers modification of the threshold price. On that Regulation No 2496/74 of the the contrary it considered that the Council, on which it bases its powers, increase in prices of 7 October would although applicable as from 7 October, lead to an alteration in the threshold entered into force on the day of its price of a different character from that publication in the Official Journal, that mentioned in Article 16 (4) of Regulation is on 3 October 1974. The contested No 120/67. Regulation No 2546/74 which was adopted on 4 October, entered into force As to the protection of legitimate on the day on which Regulation No expectation the Commission considers that neither of the two conditions 2496/74 became applicable, that is on 7 October. Further and in the alternative, necessary to support this submission — the definition of a course of future the Commission claims that it had the power to adopt implementing provisions conduct and departure from this without even before the entry into force of the valid justification — is fulfilled. regulation of the Council which The economic justification of Regulation conferred power upon it, having regard No 2546/74 is based on a general to the coincidence of the dates of evaluation of the situation and not on the implementation and the urgency of special circumstances of the situation of the situation. Regulation No 2546/74 the applicant. certainly comes under the provisions of Article 4 of Regulation No 2496/74 of The Advocate-General delivered his the Council, because that article was opinion at the hearing on 28 October deliberately drafted widely, having regard 1975.

4 The applicant disputes that this measure has the character of a regulation and maintains that it is a decision which although in the form of a regulation is of direct and individual concern to it.

5 It is consequently necessary to decide upon the character and the scope of the contested measure in relation to the requirements of Article 173 in respect of the admissibility of applications for annulment.

6 Under Article 16 (4) of Regulation No 120/67/EEC of the Council of 13 June 1967 on the common organization of the market in cereals (OJ of 19. 6. 1967, p. 2269) as amended by Article 6 (3) of Regulation No 2429/72 of the Council of 21 November 1972 (OJ L 264 of 23. 11. 1972) the exporters of certain cereals are authorized to request advance fixing of the refunds to which Article 16 (1) entitles them.

7 Under this same provision the refunds thus fixed in advance at the amount in force on the day of the application, are nevertheless subject to monthly adjustments in accordance with the threshold price in force during the month of exportation.

8 The threshold prices, laid down in relation to the target prices which are, under Article 2 of Regulation No 120/67 fixed for a complete marketing year,

JUDGMENT OF 18. 1 1. 1975 — CASE 100/74

13 According to the third recital in the preamble to the contested regulation that exclusion is justified on the ground that because of the abolition, especially since 26 July 1974 as concerns the cereals exported by the applicant, of any refund, the duration of validity of the licences involving advance fixing of the refund and not yet used by 7 October was to expire shortly so that it might therefore be assumed that the products to be exported 'under such licences have already been sold on the Community market at prices determined by the common price level obtaining before 7 October 1974'.

14 The contested measure, by denying to a class of traders the benefit of an increase in the amount of refunds for specific exports which was on the

CAM. v COMMISSION

contrary granted to those whose applications for advance fixing were made at a later date, directly concerns the said traders.

15 On the other hand it applies to a fixed and known number of cereal exporters as well as, in respect of each of them, to the amount of the transactions for which advance fixing had been requested.

16 This is all the more so because, as refunds were abolished as from 26 July, the category of traders affected is reduced to those who, having had advance fixing before 26 July 1974, still had current export licences on 7 October.

22 Regulation No 2496/74 of the Council, although it provided that the measures which it lays down were only to be applicable from 7 October,

JUDGMENT OF 18. 11. 1975 — CASE 100/74

provides however that it was to enter into force on the date of its publication in the Official Journal, that is on 3 October 1974.

23 From the date of entry into force the Commission was entitled under powers conferred on it by Article 4 of the regulation, to lay down implementing measures provided that they did not vary the intended date of application.

24 Such is not the case as the contested measure provides that it should enter into force on 7 October 1974.

25 This submission must be rejected.

CAM. v COMMISSION

31 Even if the applicant was entitled to rely upon vested rights or a legitimate expectation in the continuation of increases in the amount of the refund, laid down by Article 16 of Regulation No 120/67 as it applied at the time of the request for advance fixing, it cannot take advantage of such a right or such a prospect as regards that part of the refund which corresponds to increases in the threshold price which are entirely divorced from the objective of Article 16, which were unforeseeable at the time when the amount was fixed in advance and which it is therefore clear could not have been taken into

account among the reasons which in July 1974 led the applicant to request advance fixing.

32 This submission must also be dismissed.

33 The application must be dismissed.

Costs

Orders the applicant to pay the costs.

Lecourt Donner Mertens de Wilmars

Pescatore Sørensen Mackenzie Stuart O'Keeffe

Delivered in open court in Luxembourg on 18 november 1975

A. Van Houtte R. Lecourt

Registrar President