C-88/76

JUDGMENT OF THE COURT 31 MARCH 1977 1

Société pour l'exportation des sucres SA v Commission of the European Communities

Case 88/76

1. Procedure — Proceedings instituted by individuals — Measure of direct and individual concern — Concept — Admissibility (EEC Treaty, second paragraph of Article 173)

2. Procedure — Proceedings instituted by individuals — Measure not applicable to the plaintiff — Lack of legal interest — Inadmissibility (EEC Treaty, second paragraph of Article 173)

3. Procedure — Costs — Unreasonable costs — Payment thereof (Rules of Procedure, Article 69 (3))

Legal Service, with an address for service in Luxembourg at the offices of Mario Cervino, Legal Adviser to the Commission, Bâtiment Jean Monnet, Kirchberg,

defendant,

Application for the partial annulment of Commission Regulation (EEC) No 1579/76 of 30 June 1976 laying down special detailed rules of application for sugar under Regulation (EEC) No 557/76 on the exchange rates to be applied in agriculture (OJ L 172 of 1. 7. 1976, p. 59),

THE COURT

composed of: H. Kutscher, President, A. M. Donner, President of Chamber, J. Mertens de Wilmars, M. Sørensen, Lord Mackenzie Stuart, A. O'Keeffe and G. Bosco, Judges,

Advocate-General: G. Reischl

Common detailed rules for the agricultural policy or the special trade application of the systems of import and systems for goods processed from export licences and advance fixing agricultural products: certificates for agricultural products were (a) amounts which have been fixed in laid down by Regulation (EEC) No advance for a transaction or part of a 193/75 of the Commission of 17 January transaction still to be carried out after 1975 (OJ L 25, p. 10); the special the alteration of that parity detailed rules for the sugar sector are laid relationship; down by Regulation (EEC) No 2048/75 (b) amounts appearing in agreements of the Commission of 25 July 1975 (OJ concluded between a private L 213, p. 31). individual and an intervention agency

may be fixed by tender. In Regulation fixing the altered amounts, obtain (EEC) No 2101/75 of 11 August 1975 cancellation of the advance fixing and of the relevant document or certificate.' (OJ L 214, p. 5), the Commission issues until a date to be determined On the basis of Article 3 of Regulation subsequently, a standing invitation to No 129 of the Council on the value of tender to determine an export levy the unit of account and the exchange and/or export refund on white sugar and, rates to be applied for the purposes of during the period of validity of the the common agricultural policy (OJ, standing invitation, weekly partial English Special Edition, 1959-1962, p.

Article 6 of that 1134/68 of the Council of 30 July 1968 latter regulation made applicable the (OJ, English Special Edition, 1968 (II), p. provisions of Regulation No 1134/68 laid 396) provides that: down for the amendment of the relationship between the parity of the 'In the case of an alteration of the currency of a Member State and the value relationship between the parity of the of the unit of account (see above). currency of a Member State and the value of the unit of account, the Member State On 15 March 1976 the Council adopted concerned, using the new parity Regulation No 557/76 (OJ L 67, p. 1) relationship and without prejudice to the repealing Regulation No 475/75 and application of Article 1 (2), shall adjust fixed new exchange rates to be applied in the following amounts, given in units of agriculture.

JUDGMENT OF 31. 3. 1977 - CASE 88/76

'However, Article 4 (1), second In this regulation the following subparagraph, of Regulation (EEC) No subparagraph is added to Article 5 (2) of 1134/68 shall apply only if the Regulation (EEC) No 557/76 (see above): application of the new representative rates is disadvantageous for the party 'Provision may be made for this concerned' (Article 5 (2)) disadvantage to be compensated for by a suitable measure. In such a case, the Detailed rules for the application of provisions referred to in the first Regulation No 557/76 were laid down by subparagraph shall not apply.' Commission Regulation (EEC) No 571/76 of 15 March 1976 (OJ L 68, p. 1). Finally, on 30 June 1976, the Article 1 (1) of that regulation provides Commission adopted Regulation (EEC) that: No 1579/76 (OJ 172, p. 59), which provides that: 'With respect to products for which a monetary compensatory amount is fixed, Article 1 cancellation of the advance fixing and the relevant document or certificate as '1. The compensation referred to in the provided in the last subparagraph of second subparagraph of Article 5 (2) of Article 4 (1) of Regulation (EEC) No Regulation (EEC) No 557/76 shall be 1134/68 may be applied only: granted for those quantities of white — in the case of import licences issued sugar for which customs export in Ireland and Italy, formalities are completed on or after 1 — in the case or export licences issued July 1976 in connexion with partial in Germany, Belgium, Luxembourg awards under Regulation (EEC) No and the Netherlands.' 2101/75 and for which an export licence was issued before 15 March 1976. For the Article 2 (1) provides that the provisions Member States concerned this of the last subparagraph of Article 4 (1) compensation shall be as shown in the of Regulation No 1134/68 shall apply for annex.

27 000 tonnes of sugar. The applicant deposit in question could not be company states that it used most of the regarded as forfeit before the delivery of certificates which were due to expire on the judgment of the Court concluding 31 July 1976 for a total of approximately the proceedings. 15 000 tonnes of sugar, before 30 June 1976. For those due to expire on 31 Upon hearing the report of the August 1976 it wished to abandon Judge-Rapporteur and the views of the Advocate-General the Court decided to carrying out the export transactions and to seek their cancellation. By letter of 1 open the oral procedure without holding July 1976 addressed to the Office Central a preparatory inquiry. des Contingents et Licences (Central Office for Quotas and Licences) in Brussels, it requested the cancellation of II — Conclusions of the parties these licences for a total amount of 11 000 tonnes of sugar. That office The applicant claims that the Court should: rejected the application for cancellation in reliance on Commission Regulation — annul Article 1 (2) of Commission No 1579/76, which abolished the right of Regulation (EEC) No 1579/76; — in the alternative, rule that the cancellation with effect from 1 July. abovementioned paragraph is void at In the opinion of the applicant in so far least in respect of applications for as that regulation takes away acquired cancellation submitted on 1 July. rights or legitimate expectations it In addition it asks that the Commission infringes the principle of legal certainty and legitimate expectation and should be ordered to pay the costs. consequently it cannot properly be relied on. It requests the Court of Justice in The defendant contends that the Court should: accordance with Article 174 of the EEC Treaty to declare the regulation — dismiss the application; concerned to be void, at least in respect — order the applicant to bear the costs. of the parts which contain the abovementioned infringement. III — Submissions and argu­ ments of the parties (c) Procedure Admissibility The application, dated 14 September 1976, was entered in the register of the In respect of the admissibility of its Court of Justice on 16 September 1976. application based on Article 173 of the EEC Treaty, the applicant relies in On 1 October 1976, the plaintiff lodged particular on the judgment of the Court an application for the adoption of of 18 November 1975 in Case 100/74 interim measures to the effect that the (CAM v Commission [1975] ECR 1393). validity of the export licences in question It takes the view that according to the should be extended until one month criteria set out in that judgment it is after the date of the judgment on the directly concerned by Regulation No substance of the case. In the alternative it 1579/76, since it holds export licences requested that the deposit should only be issued before 15 March 1976 in the forfeit if the main action was dismissed. context of partial awards in accordance with Regulation No 2101/75 and which By order of 19 October 1976 the had not yet been used on 1 July 1976. It President of the Court of Justice ordered is also individually concerned since it is the Commission to inform the one of a limited and known number of competent Belgian authorities that the exporters holding such licences.

— The time-limit for bringing proceed­ — Subject-matter of the application ings In the opinion of the defendant, it If the third paragraph of Article 173 of should be asked whether the real the EEC Treaty is applied strictly (a subject-matter of the application does time-limit of two months from the not correspond more closely to an action publication of the measure) the applicant for damages. With regard to the is time-barred. It is true that under substance of the case the applicant takes Article 81 (1) of the Rules of Procedure the view that the financial compensation of the Court of Justice the period of time granted by the regulation in question allowed for commencing proceedings does not cover all the profits which it against a measure adopted by an expected to make by cancelling those institution runs, where the measure is licences and by obtaining the new published, from the fifteenth day after refunds. publication thereof in the Official Journal of the European Communities. In any case the claim that within the However, it may be asked whether this regulation in question the Court of provision is equally applicable where it is Justice should merely declare illegal the shown that the person concerned was abolition of the right to cancellation well aware of the contested measure long without affecting the right to before the expiry of the period of fifteen compensation is inadmissible: Regulation days following its publication in the No 1579/76 forms an inseparable whole. Official Journal. This question concerning the interpretation of the The applicant objects to this Rules of Procedure is raised in the interpretation of its claim: the amount of present case in which as early as 5 July the compensation is not at issue. It 1976 the applicant had inquired of the claims that it was suddenly obliged to use Office for Official Publications of the certificates or risk forfeiting the deposit European Communities the exact date of while, as a result of arrangements it had the distribution of the Official Journal made in reliance on the existing rules, it publishing the regulation in question. was no longer capable of so doing.

traders who had taken advantage of such subject to the sole condition that any compensation and who would have to changes occurring in the rates of reimburse it exchange is disadvantageous for the persons concerned. The defendant recalls that Regulation No 1811/76 prolonged the validity of The possible disadvantage could have licences until 30 September 1976. The been recognized as early as 15 March applicant cannot therefore complain that 1976, since on that date the Commission it was suddenly obliged to use its laid down and published the licences. compensatory amounts and the coefficients applicable to the refunds.

disadvantage. Therefore from 15 March The application 1976 those traders had acquired the right to obtain at the appropriate moment The applicant takes the view that where cancellation of the licences in question particular rules expressly or by in the full knowledge that the condition implication assign rights to individuals to which this right was subject was the individuals have vested rights which satisfied. cannot be called in question again. When no right is given to individuals but Then in Article 2 (1) of Regulation No where the circumstances are such that 571/76 the Commission provided that they may believe with objective the provisions of the last subparagraph of foundation that the existing rules on the Article 4 (1) of Regulation (EEC) No basis of which they enter into certain 1134/68 (right of cancellation) only apply business ventures will remain unchanged with effect from the dates set out in until the end of the transactions Article 2 (2) of Regulation (EEC) No undertaken, there exists the legitimate 557/76 (the beginning of the 1976/77 expectation which is granted protection marketing year) which could support the by Community law, save where there argument that the right of cancellation exists an overriding public interest. could only arise for sugar exporters on 1

provision. Furthermore, it is clear from Regulation No 557/76 of the Council the preamble to Regulation No 571/76 assigned to these traders the right to that the Commission in no way wished apply for the licences to be cancelled if, to affect the right of cancellation but by virtue of an alteration of the rates of solely to specify the time at which it exchange the refund fixed in advance could be exercised (second recital). In had to be amended. This right was made practice in the sugar sector applications

and that it was only the opportunity to exercise it which was set back to 1 July. The legality of Council Regulation No Even on the argument that the right was 1451/76 is not questioned by the only acquired on 1 July 1976 it is certain plaintiff. As the regulation only contains that from 15 March 1976 the persons the provision that the disadvantage can concerned could rely on the possibility be compensated for by a suitable of seeking and obtaining cancellation of measure, it in no way obliged the the licences at the appropriate time. Commission to implement such a Therefore, it must be admitted that there provision. Moreover, it is doubtful did at least exist a legitimate expectation. whether that regulation provided that in the event of the adoption of a In view of the compensation provided compensatory measure the right of for, it is true that the disadvantage ceased cancellation could no longer be to exist but the compensation is not exercised. The replacement of the right capable of resolving the problems of of cancellation by compensation appears those persons who, in reliance on the to be an alternative and not an possibility of cancelling the licences are obligation. Thus, in order to attain its no longer able to carry out the object the Commission could have made exportation. Indeed, some traders could provision for a simple power for the have taken other steps with regard to the persons concerned to waive the right of goods concerned, for example, they could cancellation by accepting the proposed have taken part in other invitations to compensation. tender and have obtained other licences relating to refunds calculated on the basis Furthermore, most of the traders used of the new rates of exchange. The the licences before 1 July 1976, which objection cannot be raised that the means that the fear of wide recourse to replacement of the right of' cancellation the right of cancellation was not well by the right to compensation was founded. Applications for cancellation envisaged by Council Regulation No lodged on 1 July were to the plaintiff's 1451/76 of 22 June 1976, and that knowledge in respect of barely 15 000 consequently prudent traders should tonnes while licences issued before 15 have avoided taking any risks. March which were still valid related to a quantity of 120 000 tonnes. The Council regulation solely made provision for one possibility but gave no Finally although Official Journal No certitude as to the actual application of a L 172 bore the date 1 July 1976, it only compensatory measure, and in addition appeared on 2 July 1976. Therefore, did not fix any date for the introduction Regulation No 1579/76 was not of such a measure. published on the date specified for its entry into force. As publication in the The reason given in order to justify the Official Journal is an essential abolition of the right of cancellation, pre-condition for regulations to take namely the need to avoid widespread effect, the date of their entry into force recourse to the right of cancellation in cannot be prior to that of their order not to hinder the good publication. In the present case, it is administration of the sugar sector, is not undeniable that on 1 July the right of sufficient to reveal an overriding public cancellation was a definitively vested

right. The abolition of such a right by a of the transaction. A trader who, before measure published one day later has, that date, particularly in April or May, without any doubt, retroactive effect had contracted firm obligations in which, no longer has to be shown to be reliance on the cancellation of the incompatible with the requirement of licences would have speculated on the legal certainty. Therefore a declaration future development of the price of sugar that the regulation in question is void is and on the future level of the refund.

There is The defendant argues that the no doubt that the advance fixing cannot admissibility of the argument based on be used for the purposes of speculation. legitimate expectation is not self-evident in an application for the annulment of a — Transitional measures measure of general application. In this respect it refers to remarks made by the Commission Regulation No 1811/76 of Advocate-General in his opinion in Case 27 July 1976 (OJ L 202, p. 8), extending 47/75, Federal Republic of Germany v the period of validity of certificates until Commission ([1976] ECR 582). 30 September 1976 was adopted as a transitional measure which would Nevertheless, it examines the following prevent certain traders who might have points: been acting in good faith from being placed in a difficult situation. — Legitimate expectation — The public interest

First, serious monetary disadvantage or to have it uncertainty would have affected the cancelled, the latter depending in control of the supply side of the sugar particular on the level of refund balance; the quantities in respect of applicable at the time of the completion which licences could have been

In the absence of any legitimate interests To summarize the position therefore, on of the traders concerned, that is to say, 15 March 1976 traders holding licences other than those which may have fixed in advance certainly possessed no resulted from speculation, in adopting 'vested right', but were merely able to the measure in question, the expect the possibility of obtaining their Commission gave precedence to the release on 1 July 1976 from their export public interest of the general operations if monetary events were such as to cause them at that moment, and management of the market. only at that moment, a disadvantage. In the alternative, the defendant maintains Finally, the defendant emphasizes that as that the infringement of vested rights, at early as 21 April 1976, it requested the least if it does not relate to the essential competent national authorities to inform nature of the property, cannot as such the trade of the intention of the constitute a reason for annulling Community to substitute compensatory Regulation No 1579/76. At most the measures for the right of cancellation. present case might be examined from the This information was transmitted and in point of view of possible compensation. the circumstances it is not possible to rely on the argument of legitimate Finally, having chosen this form of expectation. action it may be asked whether the applicant should not have contested Infringement of a vested right Council Regulation No 1451/76 which forms the legal basis of Regulation No In Regulation No 571/76 the 1579/76. Commission adopted the reasoning of the Council which was given as the Distribution of the Official Journal grounds for Article 2 (2) and Article 5 (2) of Regulation No 557/76 (cf. in particular First the defendant points out that the the third recital in fine and the fifth delay in the distribution of an Official recital in fine of the Council regulation). Journal is not as such comparable to the formal retroactive effect of the measure In providing that the provisions of the published. last subparagraph of Article 4 (1) of Regulation No 1134/68 are applicable Secondly advance notice of the with effect from the dates set out in regulation in question was in any event Article 2 (2) of Council Regulation No given by Council Regulation No 1451/76 557/76, Commission Regulation No of 22 June 1976. Consequently, the 571/76 only established the right of traders had notice that the measure was cancellation in the present circumstances imminent and therefore the possibility of from 1 July 1976 for the sugar sector. formal retroactive effects could have been

Reply Infringement of legitimate expec­ tation Infringement of a vested right In respect of the admissibility of this The applicant takes the view that the submission the applicant observes that if fifth recital of the preamble to the contested measure was of general Regulation No 557/76 refers to a specific application then it is not merely this disadvantage resulting from the fixing of submission but the whole application the new representative rates. Since the which is inadmissible. The defendant did exchange rates applicable from 1 July not however raise that objection. 1976 had been fixed on 15 March, the traders could have known from that date As to the substance the applicant first whether they were going to suffer a loss. denies that a trader had to wait until 1 The Commission itself drew these July 1976 to assess the whole position. If, conclusions in deciding on 15 March in reliance on the rules in force from 15 that export licences issued inter alia in March 1976, a trader decided that the Belgium could be cancelled (Regulation licences in question could be cancelled No 571/76). In addition in stating that on 1 July, he could at any moment after the relevant cancellations should only be 15 March have made an economic permitted 'when' and not 'if the amounts calculation in order to know whether or fixed in advance have actually suffered as not his interests would be served by a result thereof (Regulation No 571/76), having the licences cancelled. A trader the Commission in no way made the concluding a contract before 1 July acquisition of the right subject to a would merely have taken into account condition but solely postponed exercise the information available at the time

during the period of validity of the confidential. In addition, this method licence. was not appropriate to inform traders of the intentions of the Community. In any — Transitional measures event, as they are merely intentions it is not for the traders to prejudge either Regulation No 1811/76 was only adopted proposals from the Commission or even on 27 July 1976, which proves that after less the reaction of the Council to them. the event the Commission realized that it had made an error of judgment. In any Distribution of the Official Journal event the extension of the period of validity of the licences was not an The applicant maintains that a measure appropriate transitional measure because is only published when it is brought to although it enabled certain traders to the notice of the public. The date of comply with their licences, it is not publication is therefore that of the certain that they could have done so in distribution of the Official Journal. satisfactory economic circumstances. The measure introduced was in no way — The public interest the logical, necessary and foreseeable consequence of Regulation No 1451/76, The serious inconvenience to the proper as the Commission was not obliged to management of the market has not been take that measure. proved by the defendant. First it is difficult to understand how a reduction For the rest the applicant believes that it in exports could compromise supply. has shown that the measure was in no Then again the argument based on the way necessary as the concerns of the financial charges is also irrelevant. In the Commission were without foundation. present case the traders affected wished to cancel the licences because they no Rejoinder longer held the amounts of sugar referred to in the licences which were capable of The defendant first clarifies the scope of being cancelled. In most cases they had the rules in question. It states principally already obtained new licences for the that Article 4 of Regulation No 1134/68 same quantities and the refunds set out cannot be applied to the present case by in the new licences had already been direct analogy but solely by means of an entered in the budget of the European express provision (Article 5 of Regulation Agricultural Guidance and Guarantee No 557/76). The possibility of Fund long before the adoption of cancellation thus conferred is placed in a Regulation No 1579/76. context which is different from that of Article 4 of Regulation No 1134/68 as It is not true that at the end of April the such.

take account of the effect of the set out in these regulations must be monetary compensatory amounts on the analyzed as being a special measure transaction in question in order to know based on natural justice with the object whether the person concerned might of protecting a trader from a change suffer a disadvantage. (reduction) in the monetary compensatory amount. The legislature The defendant submits some sample first considered that it was reasonable to figures of a refund fixed in advance grant this measure based on natural (tendered and entered on the licence) justice in the form of cancellation of the which should in theory have been refund fixed in advance, a consideration reduced in application of the new green derived from the existing rules rate. However, this reduction is (Regulation No 1134/68) and the desire counterbalanced by the application of for administrative management which the so-called 'monetary coefficient' fixed was as simple as possible. Having in accordance with Article 4 (3) of discovered that traders intended to use Regulation No 1380/75 of the this opportunity to draw an additional Commission, of 29 May 1975 (OJ L 139 profit from developments in the market of 30. 5. 1975, p. 37) with the result that which occurred after the monetary event the refund which was in fact given is still or even for purely speculative purposes at the previous level. the legislature had given a different content to this measure based on natural The coefficient continues to express the justice more appropriate to the particular relationship between the green rate and situation existing in the present case, that the real rate for the currency concerned. is direct indemnification for traders in Thus it adjusts the refund (or the levy) so the form of compensation for the that it is converted into the national disadvantage. currency by means of the actual value of the currency (for the Belgian franc, the Infringement of a vested right central rate). The modification of the monetary coefficient (from 0-98 to 0-986 The defendant recalls three features of in the present case) has thus Regulations No 557/76 and No 571/76: automatically restored the refund to its — first the persons concerned were only previous level. able to seek the cancellation of licences only if they suffered As a result the 'disadvantage' arising from disadvantage because of the fixing of the modification of the green rate for the new representative rates; exporter consists in the difference — further cancellation was justified only between the monetary compensatory if the modification of the amount amount before and after the modification fixed in advance was unforeseeable; of the green rate calculated on the basis — finally cancellation was only made of the intervention price. possible at the time when the amounts fixed in advance in fact If the Commission had not regarded as a suffered the consequences of the disadvantage the circumstances arising application of the new conversion from the reduction of the monetary rates.

From a legal point of view, the situation was decided on 15 March but the change established by the abovementioned was spread over a period according to the regulation divides into two periods: marketing years. The deferment to 1 July between 15 March and 1 July 1976 (in is therefore a consequence of the logical the sugar sector), the traders concerned system of the agricultural marketing could have claimed an expectation of years. using one of the opportunities made available to them by a choice within a As regards its powers in this respect the specific period (either to use the licences defendant states that it had to give its or to seek their cancellation). As from 1 opinion on the consequences of July 1976 the same traders were given an implementing over a period a principle optional right consisting of requesting established by the Council: it is difficult the cancellation of the licences referred to see therefore why it could not fix the to by the regulations. date on which cancellation could be granted. In this respect the present case may be compared with Case 1/73 (Westzucker v Infringements of legitimate expec­ Einfuhr- und Vorratsstelle Zucker, tation judgment of the Court of Justice of 4 July 1973 [1973] ECR 723). Is is clear With regard to the conduct of the traders from that case that a conditional right described by the applicant the defendant conferred by a Community regulation observes that the intention to use a future

EXPORTATION DES SUCRES v COMMISSION

market the whole management policy of is evident that once the persons the Community was affected: these concerned are aware of a proposal by the quantities affected the final stocks and Commission their attention must be the export policy of the Community. On aroused as to the probability of the the other hand with regard to the budget measure proposed. of the European Agricultural Guidance and Guarantee Fund budgetary In brief the real extent of the expectation provisions are purely on the basis of to which Community texts give rise is estimates and cannot be assimilated to restricted to the promise to save traders a the actual expense resulting from market disadvantage arising from the change in policy. On the other hand in view of the the representative rate on 1 July 1976. In additional quantities affecting the this respect the expectation was met as internal management of the Community Regulation No 1579/76 compensated for it is conceivable that there is a need to that particular disadvantage. adopt a policy of increased export refunds which would clearly have fallen Distribution of the Official Journal on the budget of the European Agricultural Guidance and Guarantee In this respect the defendant reiterates Fund. the arguments set out in its defence.

Without wishing to enter into the It admits that it was not obliged in the discussion of the figures relating to the strict sense of the term to adopt the quantities of sugar remaining on 1 July measure in question as a result of the the defendant denies that the figure of Council regulation; however it was 15 000 tonnes referred to in the evident and clear for all those concerned application is significant. It is possible that the Commission solely awaited the that the notification of the measure adoption of that regulation by the foreseen had already affected the actions Council in order to have a legal basis for of exporters before 1 July so that the adopting formally the particular measure quantity remaining on that day of the already known in advance. quantities originally put up for tender had no relevance in evaluating the risk of disturbance which in fact existed. IV — Oral procedure

agricultural policy (OJ, English Special Edition, 1968 (II), p. 396) provides in Article 4 (1) that in the case of alteration of the relationship between the parity of the currency of a Member State and the value of the unit of account, the amounts which have been fixed in advance for a transaction still to be

carried out after that alteration are to be adjusted.

3 In order to prevent the change in the amounts referred to from causing disadvantage to the persons concerned the last subparagraph of Article 4 (1) adds however that a person who has obtained advance fixing for a specific transaction may, by application, obtain cancellation of the advance fixing and of the relevant document or certificate.

4 Article 5 (1) of Council Regulation (EEC) No 557/76 of 15 March 1976 on the exchange rate to be applied in agriculture (OJ L 67, p. 1) which fixed the rates of exchange valid for marketing years commencing in the course of 1976 stated that the provisions of Regulation No 1134/68 were applicable while stipulating however in Article 5 (2) that the second subparagraph of Article 4 (1) referred to above providing for the right of cancellation 'shall apply only if the application of the new representative rates is disadvantageous for the party concerned'.

5 The abovementioned Article 5 (2) was further amended by Council Regulation (EEC) No 1451/76 of 22 June 1976 (OJ L 163, p. 5) which stated in the preamble that 'whereas if this right [of cancellation] were widely exercised, it could in certain cases seriously hinder good Community administration of a given agricultural market' added the following subparagraph to the said Article 5 (2): 'Provision may be made for this disadvantage to the compensated for by a suitable measure. In such a case, the provision referred to in the first subparagraph shall not apply'.

Admissibility

8 The applicant argues that it is directly and individually concerned by the decision which is contained in the second paragraph of the abovementioned article and therefore that his action is admissible under Article 173 of the

Treaty.

9 On the one hand, by referring to a clearly defined category of export licences, namely those issued before 15 March 1976 and still valid on 1 July 1976, the provision at issue therefore directly concerns traders holding such licences.

10 On the other, the traders are distinguished individually by the fact that they obtained, for the product in question, advance fixing in licences issued before 15 March 1976 and still valid on 1 July 1976.

11 The provision therefore concerns natural or legal persons affected by reason of circumstances in which they are differentiated from all other persons and distinguished individually just as in the case of the person addressed.

17 While Community law does not exclude all possibility of retroactive effects the regulation at issue contains no factor capable of attributing to it effects before the day of its actual publication.

18 Consequently it cannot be applied to the applications for the cancellation of licences lodged by the applicant on 1 July 1976.

19 In these circumstances, in view of the lack of legal interest of the applicant, the action is inadmissible.

Costs

20 Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

21 However Article 69 (3) provides that the Court may order even a successful party to pay costs which it caused the other party to incur.

1. Dismisses the application as inadmissible;

2. Orders the defendant to pay the costs.

Kutscher Donner Mertens de Wilmars

Sørensen Mackenzie Stuart O'Keeffe Bosco

Delivered in open court in Luxembourg on 31 March 1977.

A. Van Houtte H. Kutscher