C-103/78

JUDGMENT OF THE COURT OF 18 JANUARY 1979<appnote>1</appnote>

Société des Usines de Beauport and others v Council of the European Communities

Joined Cases 103 to 109/78

1. Acts of an institution — Legal nature — Provision amending a regulation — In the nature of a regulation (Regulation (EEC) No 3331/74 of the Council, Art. 2; Council Regulation (EEC) No 298/78)

2. Application for annulment — Natural or legal persons — Measure of direct and individual concern to them — Criteria

(EEC Treaty, Art 173, second paragraph)

Société Industrielle de Sucrerie, Paris,

Compagnie Sucrière et Rhumière de la Martinique, Trinité (Martinique),

Société des Planteurs de Cannes Associés, Lamentin (Guadeloupe),

1 — Language of the Case: French.

JUDGMENT OF 18. 1. 1979 — JOINED CASES 103 TO 109/78

Société d'Exploitation Sucrière de Marie Galante, Pointe-à-Pitre, (Guadeloupe),

intervener,

v

Council of the European Communities, represented by Daniel Vignes, Director at the Legal Service of the Council, with an address for service in Luxembourg at the offices of J. N. van den Houten, Director of the Legal Service of the European Investment Bank, 2, Place de Metz,

defendant,

APPLICATION, at the present stage of the proceedings, for a declaration that an application for the annulment of Council Regulation (EEC) No 298/78 of 13 February 1978 amending Regulation (EEC) No 3331/74 on the allocation and alteration of the basic quotas for sugar (Official Journal 1978, No L 45, p. 1) is admissible,

THE COURT

The facts of the case, procedure, enumerated exhaustively, the basic conclusions and submissions and quotas of their producer undertakings; arguments of the parties may be that increase may not exceed, for the summarized as follows: whole period from 1 August 1976 to 31 July 1980, 5% of the "original" basic quota. I — Facts and procedure Council Regulation No 298/78 completed the contents of the latter The basic regulation on the common provision by adding to Article 2 of Regu- organization of the market in sugar, lation No 3331/74 a paragraph 3 Regulation No 3330/74, establishes (see providing as follows: Article 23 et seq. thereof) a division into "By way of derogation from the first, three categories of the quantities of second and third subparagraphs of sugar produced by producers. Each Member State fixes for each of its sugar Article 24 (2) of Regulation (EEC) No 3330/74 and paragraph 1 of this article, refineries within the basic quantity the French Republic may, under the allotted to it by the regulation and on plans for restructuring the sugar-cane the basis of the output of those sugar and sugar sectors in its overseas refineries during the 1968/69 to 1972/73 departments, reduce the basic quota for marketing years the basic annual quota each undertaking established in these called "Quota A" and allots it that departments by a quantity not exceeding, quota. In the same way, it establishes a for the entire period 1 July 1977 to 30 Quota B the amount of which is fixed June 1980, 10% of the basic quota annually by the Council at a certain applicable to each undertaking during percentage of the basic quotas. Quota A the 1976/1977 sugar marketing year. sugar and Quota B sugar may be bought by the intervention machinery at the Further, for the 1977/78 marketing year, intervention price, subject in the case of the reduction in the basic quota may not Suota B sugar to the payment of a levy exceed the difference between the basic

The fourth recital of the preamble to The applicants contend that the Court should: Regulation No 298/78 states that the reason for this increase in what is known — Dismiss the Council's objection of as the "operating volume" is the desire inadmissibility since, on the on hand, to permit quotas which have not been that objection has not been used up to be transferred by the under- formulated in accordance with the takings in Guadeloupe and Martinique requirements laid down by Article 91 to the quota allocated to the under- of the Rules of Procedure of the takings in Reunion. Court and since, on the other, it is clear that the regulation complained On 28 April 1978 the applicants lodged of is of direct and individual concern the present applications for the to the applicants and that in any case annulment of Regulation No 298/78. in the present instance the examin- ation as to admissibility cannot be On 3 July 1978 the defendant lodged a dissociated from the examination of document under Article 91 of the Rules the substance of the case. of Procedure requesting the Court for a decision on a preliminary objection of inadmissibility without going into the III — Submissions and argu- substance of the case. ments of the parties

After hearing the report of the Judge- In its document raising a preliminary Rapporteur and the views of the objection the Council claims that the Advocate General, the Court decided to application is inadmissible because it is open the oral procedure on the lodged against a regulation of general admissibility of the applications without effect which is not of direct and

Martinique Regulation No 298/78 cannot be considered to be of individual The first direct effect of that regulation is to abolish henceforth the right of those concern to them. Nor can Regulation No 298/78 be considered to be of direct sugar-producing undertakings in Martinique and Guadeloupe to nave the concern to them. This regulation merely alteration of their quota limited to 5% contains a provision authorizing a Member State within the context of its for the period from 1 July 1978 to 30 June 1980. The system laid down in own powers to reduce the quotas of the Regulation No 3330/74 and Regulation sugar undertakings of those departments. No 3331/74 did not authorize the On the contrary, the Council's measure Council to adopt during the period in is not of direct concern to the applicants. question further regulations empowering The applicants claim that the Council has the Member States to alter the begun to discuss the substance of the percentage of the "operating volume". In case before even raising in limine litis the fact the infringement by the Council of objection of inadmissibility. This is Regulation No 3330/74 and Regulation contrary to Article 91 of the Rules of No 3331/74 is of immediate and direct Procedure which provides that an concern to the applicants. For this reason application on a preliminary objection the problem of admissibility is closely must be made by a separate document. linked to the problem of the substance of They observe that the facts in Case the case. 123/77 are different from those in the present case in which the number and Moreover, the right given by Regulation the individual nature of the sugar No 3330/74 and Regulation No 3331/74 producers is determined completely to the sugar producers in the Community before any other decision has been to retain their basic quotas unchanged adopted. within an "operating volume" clearly The situation in the case in question is defined for a specific period constitutes similar to that in Cases 62/70, Wemher for those producers an important factor A. Bock v Commission of the European in their industrial assets. Any possible Communities [1971] ECR 897, and downward alteration of those quotas has Joined Cases 106 and 107/63, Alfred a direct and immediate adverse effect on

2 The Syndicat Général des Producteurs de Sucre et de Rhum des Antilles Françaises is intervening in support of the applicants' submissions.

3 Article 24 of Regulation (EEC) No 3330/74 of the Council of 19 December 1974 on the common organization of the market in sugar (Official Journal 1974, No L 359, p. 1) provides for the allocation by Member States of basic quotas to undertakings; Article 24 (3) stipulates that "the Council ... shall adopt the general rules for the application of this article and any derogations therefrom".

4 The Council adopted on the same date and pursuant to that provision Regu- lation (EEC) No 3331/74 on the allocation and alteration of the basic quotas for sugar.

5 Article 2 of the latter regulation provides for derogations from Article 24 of Regulation (EEC) No 3330/74.

6 In its original version that article provided for two derogations, one of a general nature in Article 2 (1) and the other of a special nature in Article 2 (2) in respect of the Republic of Italy.

7 The contested regulation amended Article 2 of Regulation No 3331/74 by adding to the two existing paragraphs a paragraph 3 which provides as follows :

8 The recitals of the preamble to the contested regulation justify this addition on the ground that it is desirable to make it possible for a part of the French Republic's basic quantity assigned by Regulation (EEC) No 3330/74 to its overseas departments which is not used up in other overseas departments, in other words Guadeloupe and Martinique, to be allocated to an overseas department, in other words Reunion.

9 The applicants consider that their "established rights" have been adversely affected by Regulation (EEC) No 298/78 and request its annulment under Article 173 of the Treaty.

Admissibility

10 The Council, the defendant, raised an objection of inadmissibility against the applications under Article 91 of the Rules of Procedure by document of 3 July 1978 and requested the Court to decide on that preliminary objection without examining the substance of the case.

11 It maintains that the applications for annulment do not comply with the conditions laid down in the second paragraph of Article 173 of the Treaty in that the contested measure does not constitute a decision adopted in the form of a regulation and is not of either direct or individual concern to the applicants.

JUDGMENT OF 18. 1. 1979 — JOINED CASES 103 TO 109/78

17 It is necessary to conclude from this that the nature of the original text of Article 2 of Regulation No 3331/74 is purely that of a regulation and that it cannot therefore be considered to constitute in certain respects a decision.

18 The amendment made by the contested regulation has not changed the nature of the provision, since paragraph 3 which has been added thereto contains merely an additional derogation which does not concern certain

SOCIÉTÉ DES USINES DE BEAUPORT COUNCIL

individual undertakings but a part of the territory which is expressly referred to in Article 24 of Regulation No 3330/74 and in respect of which a separate basic quantity has been fixed.

19 It is necessary therefore to conclude from this that the amendment made by the contested regulation shares is, in the same way as Article 2 of Regulation No 3331/74, in the nature of a regulation.

20 Moreover, the contested regulation is not of direct or individual concern to the applicants.

26 It is therefore necessary to order them to pay the costs.

OPINION OF MR WARNER — JOINED CASES 103 TO 109/78

On those grounds,

THE COURT,

hereby:

1. Dismisses the applications as inadmissible;

Registrar President

OPINION OF MR ADVOCATE GENERAL "WARNER DELIVERED ON 13 DECEMBER 1978

My Lords, that Council Regulation (EEC) No 298/78 of 13 February 1978 is void. The These actions are brought under Article Applicants' trade association, the 173 of the EEC Treaty by the seven Syndicat Général des Producteurs de undertakings that produce sugar in Sucre et de Rhum des Antilles

Guadeloupe and Martinique. In each Françaises, has intervened in support of action the Applicant claims a declaration the actions.