C-101/76

KONINKLIJKE SCHOLTEN HONIG N.V. and its subsidiaries, aan de Kabelweg, Amsterdam, represented and assisted by P. C. van den Hoek and D. J. Gijlstra of the Amsterdam Bar, with an address for service in Luxembourg at the Chambers of J. C. Wolter, 2, Rue Goethe,

applicant, v

COUNCIL OF THE EUROPEAN COMMUNITIES, represented by Daniel Vignes, Director in its Legal Department, and assisted by its Legal Adviser, Gijsbertus Peeters, with an address for service in Luxembourg at the office of J. N. van den Houtten, Director of the Legal Department of the European Investment Bank, 2, Place de Metz,

defendant,

1 — Language of the Case: Dutch.

JUDGMENT OF 5. 5. 1977 - CASE 101/76

Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts and the arguments of the content or else as isoglucose or parties put forward during the written isomerose.

procedure may be summarized as follows: Glucose with a high fructose content is a product which is manufactured from any type of starch but most often from maize. I — Facts and procedure Apparently it has properties analogous to those of invert sugar, that is sugar syrup 1. Facts used in the manufacture of foodstuffs. The development of this product began This case concerns a sweetening agent in the United States, a country which has known as glucose with a high fructose a sugar deficit but a surplus of cereals.

In the Common Market, through the 'in view of the special market situation action of the Community production for cereal starch, potato starch and refund for starch, the manufacture of glucose produced by the "direct glucose with a high fructose content has hydrolysis' process it may prove also become profitable and might well necessary to provide for a production constitute a threat to the sugar industry. refund of such a nature that the basic Three or four companies and their products used by this industry can be subsidiaries at present manufacture this made available to it at a lower price than product. Others are interested in its that resulting from the application of the manufacture. According to the applicant, system of levies and common prices', and the Council does not contest the point at this stage, there is a technical and provides in Article 11 that: and economic threshold with the result '1. A production refund may be granted: that the latter companies will not be able (a) for maize and common -wheat to manufacture this product for two used in the Community for the years. manufacture of starch; (b) for potato starch; It follows from the file that the sugar (c) for maize groats and meal used in industry, which feels threatened, has the Community for the brought the matter before the manufacture of glucose by direct Community authorities. hydrolysis; 2. …

The recital in the preamble to this the difference between the amount of the regulation reads as follows: production refund for starch processed into glucose having a high fructose 'Whereas Council Regulation (EEC) No content and the amount for starch used 2742/75 of 29 October 1975 on for any other purpose. production refunds in the cereals and rice sectors fixes the amount of the By Regulation (EEC) No 2158/76 of 31 production refunds; whereas in view of August 1976 laying down rules for the the situation which will exist as from the application of Regulation (EEC) No beginning of the 1976/77 marketing 2742/75 (OJ L 241, p. 21), the year, particularly as a result of the Commission adopted implementing application for that marketing year of provisions. common prices for cereals and rice, it is 3. Procedure necessary to increase the production refunds; whereas however, given the objectives of the production refund The application lodged at the Court on system, such an increase should not be 20 October contests the legality of retained in the case of products used in Article 2 of Council Regulation (EEC) the manufacture of glucose having a high No 1862/76 and of the implementing fructose content; whereas the best regulation of the Commission. method of implementing a measure of By a document registered at the Court on this type is to provide for recovery from 29 October 1976, the Council raised an the manufacturers concerned of the objection of inadmissibility against the amount of the increase in production conclusions contained in the application. refunds according to the product used.' By a document lodged at the Court on Under Article 1, the refunds are to be 22 November 1976, the Commission also increased and fixed at the following rates: raised an objection of inadmissibility. — 14 units of account per metric ton on maize used for the manufacture of starch; II — Conclusions of the parties — 20 units of account per metric ton on common wheat used for the The Council and the Commission of the manufacture of starch; and European Communities contend that the — 17-20 units of account per metric ton Court should: on broken rice used for the — Declare Application 101/76 manufacture of starch. inadmissible and order the applicant to bear the costs; Under Article 2 of that regulation, a new The applicant claims that the Court article, Article 5a, is added to Regulation should: (EEC) No 2742/75, reducing the — Declare its application admissible. production refund for only one product processed from starch, glucose having a high fructose content. In fact the amount III — Submissions and arguments of the refund for starch processed into of the parties this product is maintained at the level of that of the previous marketing year and The Council raises two submissions of is to be totally abolished as from the inadmissibility: that the application is 1977/78 marketing year. out of time and that the measure is of a general nature. Under Article 5a (3), the Member States must recover from manufacturers of As regards the application's being out of glucose having a high fructose content time, it maintains that the application

should have been registered at the latest, It is unimportant that the applicant is having regard to the extension of time the only undertaking which is in fact limits on account of distance, on 6 affected by the Community provision October 1976. Since it was not lodged since the position is that the provision is until 20 October, the application is out intended to have a general effect. Persons of time. Since the applicant may still other than those to whom a decision is contest the implementing regulation of addressed may only claim to be the Commission by putting forward an individually concerned if that decision objection of illegality with regard to the affects them by reason of certain Council regulation, on the basis of attributes which are peculiar to them, or Article 184, the Council leaves the by reason of circumstances in which they matter to the Court's discretion. are differentiated from other persons, and by virtue of these factors distinguishes As to the submission based on the them individually just as in the case of general nature of the measure adopted by the person addressed. the Council, the latter maintains, with regard to the facts, that it is clear from The Council then examines the small the documents produced by the number of judgments in which the Court applicant that undertakings in seven has acknowledged that a measure Member States are likely to be affected adopted by the Commission or the by these regulations either because they Council was of individual concern to at present manufacture glucose having a persons: Joined Cases 106 and 107/63, high fructose content or because they Alfred Toepfer and Getreide-Import might possibly manufacture it. Gesellschaft v Commission of the EEC [1965] ECR 405, Case 62/70, Bock v The Council claims that the contested Commission [1971] ECR 897, Joined regulations cannot in fact be considered Cases 41 to 44/70, International Fruit as decisions taken in the form of Company v Commission [1971] ECR 411 regulations and that they are not of direct and Case 100/74, Société CAM v and individual concern to the applicants. Commission [1975] ECR 1393. In any case, the application has only been lodged by one of those concerned by this group of decisions while others, An analysis of this case-law leads the Council to the conclusion that a without necessarily approving it, do not contest it. This weakens the applicant's regulation is only considered to be of position. individual concern to applicants if they show that that regulation is in fact a The applicant is not concerned either decision addressed to them. The typical directly or individually. case is that in which a regulation refers to a fixed and known number of traders

In the present case, the applicant only because they concern a product company is affected because it belongs to because of a factual situation which a class which has been objectively differentiates it from other persons, the defined by measures which apply to the concept of decision would be made so products which it manufactures. It is wide as to jeopardize the system of the therefore not affected merely because of Treaty, which only permits an its capacity as a manufacturer of glucose application for annulment to be brought having a high fructose content, that is, by any person against an individual because of an industrial activity which, decision which affects him as the person although very specialized and carried out to whom it is addressed or against a by a small number of companies, may at measure which affects him as in the case any time be carried out by any person of such persons. and is therefore not such as to differentiate the applicant from all other With regard to the word 'directly', an persons and therefore distinguish him examination of the case-law of the Court individually just as in the case of the leads to the conclusion that in the person addressed. present case the applicant is not directly concerned. In fact, this case involves The purely numerical criterion cannot be provisions empowering Member States to used for the purposes of determining recover from the manufacturers whether a measure is a regulation or a concerned the amounts of the refunds. decision: Case 6/68, Zuckerfabrik The manufacturers are therefore not Watenstedt v Council [1968] ECR 409 directly affected by the regulations of the and Case 64/69, Compagnie Française Council and of the Commission in Commerciale v Commission [1970] ECR question but only indirectly through the 221. abovementioned national measures.

KONINKLIJKE SCHOLTEN HONIG v COUNCIL AND COMMISSION

With regard to the application's being The applicant explains that all the lodged out of time, the fact that the businesses which at present manufacture applicant maintains that the Council the product in question belong to one of regulation does not in fact constitute a the four groups of undertakings. In this genuine regulation does not however sense the applicant maintains that there mean that for the purposes of the are only four undertakings manu­ assessment of the periods within which facturing the product in question.

JUDGMENT OF 5. 5. 1977 - CASE 101/76

The is differentiated from all other persons measure in question entails legal and which by virtue of these factors consequences' solely and exclusively for distinguish it individually. manufacturers of glucose with a high fructose content. The fact that at the date on which the Council and the Commission adopted The fact that they are individually their measure there was in the distinguished in this way is moreover Community only a very limited number particularly emphasized by the fact that of known undertakings engaged in the on 4 October 1976 the Commission manufacture of glucose with a high organized a hearing in order to discuss fructose content strengthens the the problems connected with glucose argument of the applicant that the with a high fructose content.

By analogy Commission adopted the contested with the point of view put forward by the measure in particular for the purpose of Advocate-General in this case, the preventing the number of manufacturers applicant considers that the Council's of glucose with a high fructose content measure concerns it because of a 'special from increasing in the long term. situation' which differentiates it from all other persons, in particular because of its An examination of the legislative manufacturing activities, that is, the procedure used by the Council and the manufacture of glucose with a high Commission in order to apply the fructose content which it carries out at criterion of intention necessarily leads to the same time as a very clear and the same conclusion. restricted number of other undertakings in the Community, and that the Council Regulation (EEC) No 1862/76 amendment of the refund system has lays down rules for a single derived caused it damage. product which are completely unrelated to the basis of the rules in the starch The applicant is of the opinion that the

KONINKLIJKE SCHOLTEN HONIG v COUNCIL AND COMMISSION

applicant certain special characteristics contested measure and its application is and that it is in a factual situation which admissible.

differentiates it from other persons and by virtue of these factors distinguishes it Oral procedure individually just as in the case of the person to whom the measure is At the hearing on 1 March 1977 the addressed. parties presented oral argument. Daniel Vignes, on behalf of the Council, asked The applicant is also directly concerned. the Court if it would kindly consider its The wording of Article 5a (3) of submission relating to the belated nature Regulation No 2742/75 leaves the of the application as null and void. In Member States no discretion and action fact, the Council had made a mistake of taken by them only constitutes a purely arithmetic.

executive measure. In its capacity as a manufacturer of glucose with a high The Advocate-General delivered his fructose content, the applicant is opinion at the hearing on 22 March consequently directly concerned by the 1977.

Decision

1 The application, which was entered in the Court Register on 20 October 1976, seeks the annulment of Article 2 of Council Regulation (EEC) No 1862/76 of 27 July 1976 amending Regulation (EEC) No 2742/75 on production refunds in the cereals and rice sectors (OJ 1976, L 206, p. 3) and Commission Regulation (EEC) No 2158/76 of 31 August 1976 laying down rules for the application of the Council regulation (OJ 1976, L 241, p. 21).

7 The choice of form cannot change the nature of the measure.

8 In order to make a decision as to the admissibility of the application it is therefore necessary to examine whether the contested measures are regulations or decisions within the meaning of Article 173 of the Treaty.

9 By virtue of the second paragraph of Article 189 of the Treaty the criterion for distinguishing between a regulation and a decision is whether the measure at issue is of general application or not.

10 The nature of the contested measures must therefore be studied and in

particular the legal effects which it is intended to or does actually produce.

11 It is necessary in this connexion to consider the provisions in question in the context of the rules on production refunds for starches.

16 Under Article 1 of that regulation, the refunds are to be increased and, at the same time, under Article 2 of that regulation, adding a new article, Article 5a, to Regulation (EEC) No 2742/75, the production refund is reduced for only one product processed from starch, glucose having a high fructose content.

17 Under that article, the amount of the refund for starch processed into this product is maintained at the level of that of the previous marketing year and is to be totally abolished as from the 1977/1978 marketing year.

18 Under the new Article 5a (3), the Member States must recover from manufacturers of glucose having a high fructose content the difference between the amount of the production refund for starch processed into glucose having a high fructose content and the amount for starch used for any other purpose.

19 Therefore, in the case of products used subsequently for the manufacture of glucose having a high fructose content, Article 2 of Regulation No 1862/76, by using the expedient of 'recovery', in fact refuses the increase in the production refund for the 1976/1977 marketing year and abolishes it as from the following marketing year.

20 A regulation which provides for the reduction of a production refund for a whole marketing year with regard to a certain product processed from cereals and rice and for its complete abolition from the following marketing year is

JUDGMENT OF 5. 5. 1977 - CASE 101/76

26 For the same reasons it is necessary to sustain the objection raised by the Commission.

27 It follows that the application must be dismissed as inadmissible.

Costs

28 Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs if they have been asked for.

KONINKLIJKE SCHOLTEN HONIG v COUNCIL AND COMMISSION

29 The applicant has failed in its submissions.

Kutscher Donner Pescatore Mertens de Wilmars Sørensen

Mackenzie Stuart O'Keeffe Bosco Touffait

Delivered in open court in Luxembourg on 5 May 1977.

A. Van Houtte H. Kutscher

Registrar President

OPINION OF MR ADVOCATE-GENERAL REISCHL DELIVERED ON 22 MARCH 1977 1