C-162/78

JUDGMENT OF 20. 11. 1979 — CASE 162/78

refunds, merely adjust the monetary at a uniform level calculated on the

compensatory amount by reducing it basis of Community prices. The basic in the case of revalued currencies and monetary compensatory amount has by increasing it in the case of therefore to be reduced by an amount devalued currencies. The application calculated by applying to the refund of the coefficient is only a technical the coefficient determined by the way of adjusting, in trade with non- revaluation or devaluation, so that the member countries, the basic monetary reduction or the refund itself is not

compensatory amount which is fixed affected.

In Case 162/78

1. Hans-OTTO Wagner GmbH Agrarhandel KG, represented by Hans-Otto Wagner, Bad Homburg,

THE COURT

composed of: H. Kutscher, President, A. O'Keeffe and A. Touffait (Presidents of Chambers), J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart and G. Bosco, Judges,

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

gives the following

JUDGMENT

Facts and Issues

Commission of 11 August 1975 on a Article 4 (3) of Regulation No 1380/75 standing invitation to tender in order to provides that:

JUDGMENT OF 20. 11. 1979 — CASE 162/78

"(b) in trade with third countries the 4. The Commission subsequently import charges and the export adopted the following regulations: refunds and levies, fixed in units of account ... shall be multiplied by a coefficient ... derived from the — Regulation (EEC) No 1182/78 of 31 percentage used to calculate the May 1978 supplementing Regulations monetary compensatory amount (EEC) No 1634/77 (mentioned and ... fixed by the Commission at above) and (EEC) No 1790/77 on the same time as that amount". standing invitations to tender to determine export refunds on sugar (Official Journal L 145, p. 46), Article 1 whereof provides : Article 5 (2) (d) of the above-mentioned Regulation No 2101/75 provides that "The coefficient referred to in Article export refunds shall be expressed in national currency in the tenders and 4 (3) of Regulation (EEC) No Article 11 (2) (c) thereof that the 1380/75 shall apply equally to statement of award shall also indicate the refunds awarded in national currency export refund to be granted in national for the purposes of this invitation to tender"; currency. Article 9 (1) thereof provides that only the maximum export refund, which serves the purpose of limiting the number of tenderers to whom a contract that regulation, which entered into force shall be awarded, shall be expressed in on 1 June 1978, applies to refunds units of account. awarded under the regulations which it supplements with the exception of those for which offers were accepted after 24 Tenders are valid only if the tenderers May 1978 and before 1 June 1978. have lodged the deposit required for the invitation to tender (Article 3 (3) of Regulation (EEC) No 394/70 of the — Regulation (EEC) No 1392/78 of 23 Commission of 2 March 1970 on June 1978 amending Regulation detailed rules for granting export refunds (EEC) No 1380/75 (Official Journal on sugar (Official Journal L 50, p. 1). L 167, p. 53),, which added the following paragraph (5) to Article 4 of that regulation:

On 31 July 1978 the Commission defendant's preliminary objection of adopted the disputed Regulation No inadmissibility for the final judgment. 1837/78, Article 1 whereof provides that Article 4 (5) of Regulation No 1380/75 The written procedure then took its normal course.

"shall apply to operations for which Upon hearing the report of the Judge- completion of the customs formalities Rapporteur and the views of the occurs: Advocate General the Court decided to

open the oral procedure without any (a) for operations in the sugar sector, on preparatory inquiry. or after 1 June 1978;

(b) for operations in other sectors, on or II — Conclusions of the parties after 24 June 1978;

1. The applicants claim that the Court (c) before these dates in cases when its should: application will mean a reduction in the monetary compensatory amount (1) Declare Article 1 of Regulation No levied or to be levied". 1837/78 invalid to the extent to

which it provides that Article 4 (5) of Regulation No 1380/75 relating to That regulation, which supplements the coefficient fixed in Article 4 (3) Regulation No 1392/78 and repeals of Regulation No 1380/75, where it Regulation No 1182/78, entered into amounts to less than 1, shall apply to force on 1 August 1978. refunds, the amount of which has been set in a national currency in the The applicants stated in a letter of statement of award following an 8 August 1978 that it was no longer invitation to tender before 1 August necessary for the Court to give a 1978;

provides that Article 4 (5) of Regu- 1. The Commission submits in its plea lation No 1380/75 relating to the that Regulation No 1837/78, which was coefficient fixed in Article 4 (3) of drawn up in an abstract and general way Regulation No 1380/75, where it and affects an unspecified number of amounts to less than 1, shall apply, traders, is of direct but not of individual as far as the sugar sector is concern to the applicants. The fact that concerned, to refunds, the amount of the applicants belong to a group of which has been set in a national exporters whose tenders were successful currency in the statement of award before a specified date does not mean following an invitation to tender that they were to that extent before 1 June 1978; distinguished individually by the regu- lation itself, which does not distinguish (4) in the yet further alternative, declare Article 1 of Regulation No 1837/78 between traders who participated in the invalid to the extent to which i invitations to tender, traders who were stated to be successful tenderers and provides that Article 4 (5) of Regu- lation No 1380/75 relating to the traders who had already made coefficient fixed in Article 4 (3) of arrangements for the purpose of their commercial operations. Regulation No 1380/75, where it amounts to less than 1, shall apply, The view that the decision which is as far as the sugar sector is challenged must be of individual concern concerned, to refunds, the amount of to the party affected has been endorsed which has been set in a national by the case-law of the Court. Thus in currency in the statement of award Case 63/69 (Compagnie Française following an invitation to tender Commerciale et Financière SA v before 1 June 1978, where the Commission ofthe European Communities relevant customs formalities were [1970] ECR 205) and in Case 101/76 completed before 24 June 1978; (Koninklijke Scholten Honig N.V. v (5) order the defendant to pay the costs. Council and Commission of the European Communities [1977] ECR 797) it rejected 2. The Commission contends that the the very argument used by the applicants. Court should: On the other hand, it was held in Case 100/74 (Société CAM. SA v Commission (1) dismiss the application as inadmis- of the European Communities [1975] sible; ECR 1393) that the person affected was (2) in the alternative, dismiss the individually concerned since the disputed application as unfounded; provision applied only to the holders of

the interests and legal position of specific exporters. Those exporters were It sets against the applicants' view that identifiable having regard not only to the factual circumstances but also to the the fact that a provision, although it is general and abstract, has retroactive measures adopted by the Community in effect is sufficient for it to qualify as a implementation of the regulation on decision the notion expressed in Article exports of white sugar (cf. Joined Cases 173 of the Treaty and in the case-law of 106 and 107/63, Alfred Töpfer and the Court. Getreide — Import Gesellschaft v Commission of the European Economic Community [1965] ECR 405; Joined Cases 41 to 44/70, NV International B — The economic context which has to Fruit Company and Others v Commission be taken into consideration of the European Communities [1971] ECR 411; Case 100/74 (cited above), and Case 112/77, August Töpfer & Co. 1. The Commission expresses the GmbH v Commission of the European opinion in its defence that to hold, as the Communities [1978] 1019). The recitals Court did in Case 108/77, that a in the preambles to the regulations at provision is not in breach of the principle issue leave no room for doubt that the of non-discrimination is by no means the Commission had in mind a specific same as asserting that it is economically situation; in the light of specific criteria justified but even admits of the for differentiation its aim was to cover a conclusion that it leads to unacceptable certain number of traders identified by economic consequences. The non- reason of their individual behaviour over application of the coefficient to the a fixed period. refunds in question would cause

The profits made by German exporters from the non-application of the Consequently the French trader, in order monetary coefficient are economically to be able to participate in an invitation unjustified; moreover, they were not to tender, would have had to export taken into account in their initial calcu-

through Germany in order to reap the lations since the German price for sugar benefit of the large amounts awarded for exports without application of the exports (high m.c.a. plus unreduced coefficient was much lower than the

refund). Such deflections of trade would world market price at the time. The also have been made possible by the fact results of the invitations to tender also

that export licences can be used confirm this as the tenders were at levels

throughout the Community; the export near to the maximum. refunds fixed in those licences in national

currency are converted into the currency in which they are paid on exportation by means of the representative (green) exchange rate. 2. The plaintiffs in their reply deny that the present proceedings are concerned with the application of the monetary coefficient to refunds, the amount of which has been set in a national currency in the statement of award following an In these circumstances French tenderers invitation to tender; they are only find that they are in practice eliminated concerned with the question whether the and in France surplus sugar is sold to the Commission could act retroactively.

disrupted. and that it can avoid expenditure above that figure by deciding to apply the coefficient retroactively. They are of the They submit that the argument relating opinion that by mentioning the to the degree of distortion of advantages which have accrued to competition between exporters from German exporters the Commission has countries with strong currencies and adopted arguments which are fiscal and exporters from countries with weak not legal in character. currencies which has already been put forward in Case 108/77 was not upheld by the Court. 3. The Commission in its rejoinder argues that, if it had wished to avoid the Wagner was not the only firm which consequences of the Court's argument it challenged the application of the said would have given the new regulation coefficient. As far back as the first general retroactive effect and not limited invitations to tender the second applicant the retroactivity merely to the "parties in the instant case and the Gebrüder concerned". It nevertheless has good Metelmann firm lodged claims. grounds for limiting the financial damage borne by the Community tax payer to the extent to which that is The defendant omitted to state that the permissible in law. The financial application of the coefficient was based consequences are taken into account on special provisions and had been when the public interest is taken into expressly provided for in Article 8 (3) of consideration. Regulation (EEC) No 3062/74 of the Commission of 3 December 1974 on a

standing invitation to tender to The reason why the Commission did not determine subsidies for imports of white decide to apply the coefficient earlier is and raw sugar (Official Journal L 324, that the interpretation which it advocates p. 7). appeared to it to be reasonable, that this was also the interpretation advocated by the Member States and that before the The applicants ask why the Commission judgment in Case 108/77 it was not has not given the reason for the practice aware of any criticisms by traders. It in Belgium being different from that in considers that Case 108/77 was intended the other Member States. to test the legal foundation of this well- known practice of the applicants.

As far as concerns the sugar sector the With reference to the practice in Belgium actual retroactivity derives from Article 1 the m.c.a.s there are so small that the (a) of Regulation No 1837/78. In fact actual effects of the application or non- that provision excludes the less advan- application of the coefficient there have tageous retroactive application of the remained negligible. monetary coefficient only with respect to- transactions for which the customs formalities were completed before 1 June The estimated figure of DM 20 million 1978. It was only after the applicants had only represents the additional payments brought their action that the defendant which had to be made at a later date to restricted and partially abolished the comply with the judgment in Case retroactive effect of the provision 108/77. The retroactivity introduced for provided for in Regulation No 1182/78. the benefit of exporters in countries with Nevertheless, it remains impossible to a weak currency only affected trans- understand why it persists in providing actions already carried out and has not for the genuine retroactive application of therefore led to additional payments. monetary coefficients to certain transactions.

The claim contained in paragraph (4) of the application is also based on the view C — The substance that as far as the sugar sector is concerned it is unlawful to prescribe a stricter retroactivity than that provided 1. The applicants in their amended for in the other sectors. This claim also application (see letter of 8 August 1978) takes into consideration the possibility develop the following submissions: that the Court will hold that the material conditions for entitlement to a refund

Consequently the claims in paragraphs legal rules as m.c.a.'s. In acordance with (1), (2) and (4) of the application are well-established case-law entitlement to unfounded. the grant of the m.c.a. only arises when the customs formalities on export or import [as the case may be] have been Only the claim in paragraph (3) can be completed. In the case in point, when the taken into consideration. However, the Commission adopted the provisions Commission is of the opinion that there which are challenged it merely adopted too there is no question of any genuine new implementing provisions for the retroactivity. It is certainly possible to purpose of calculating monetary agree with the view that the definitive compensation. The persons affected award of a refund as a result of an cannot establish that they have any right to the continued existence of the invitation to tender gives the successful tenderer a secure legal position. But implementing provisions previously in entitlement to a refund is not affected by force. That is why the Commission was the application of the monetary able to arrange, without, however, coefficient. From both a legal and an providing that the provisions in question should have retroactive effect, for the economic standpoint the application of that coefficient is nothing more than the new rules to be applied to all transactions for which the customs reduction of an m.c.a. which is too high. In fact the basic m.c.a. and the monetary formalities had not yet been completed coefficient together form the entity before the publication of the regulations at issue. representing the m.c.a. properly so- called. The monetary coefficient is only a technical way of adjusting in trade with non-member countries the basic m.c.a.

The foregoing is also corroborated by the facts that the legal basis for fixing the coefficient is Article 6 of Regulation No Even if it were possible to find in certain 974/71 and not any provision of the law cases that there had been a breach of the relating to refunds or levies, that the principle that the legitimate expectation coefficient is fixed at the same time as of the parties concerned was entitled to the basic m.c.a. and varies with it and protection such a finding could not on that the introduction of the coefficient that ground alone lead to a declaration and all the rules and regulations relating that the disputed provisions are void. thereto are the responsibility of the The applicants must prove the damage Commission. which they are supposed to have suffered in pursuance of that expectation: but such damage can only be claimed in an It follows that monetary coefficients action under Articles 178 and 215 of the

must in general be subject to the same Treaty.

JUDGMENT OF 20. 11. 1979 — CASE 162/78

The retroactive effect of the provision hand, assert that the claim contained in complained of was restricted to those paragraph (4) of their application is transactions in respect of which the clearly unfounded and, on the other customs formalities had not yet been hand, concede that only the claim under completed; consequently the only point parargraph (3) can be considered. The at issue is interference with a "contingent claim under paragraph (4) is in fact sub- right" (the right to the grant of the sidiary to that under paragraph (3). refund subject to a condition precedent).

meaning given to it by the applicants in their submissions — of the new rules

must be regarded as lawful in so far as The Commission was not authorized to the period subsequent to the publication interfere retroactively with entrenched of that regulation is concerned, that is to legal positions and with vested rights by say as from 7 February 1978. reducing refunds which had already been awarded and were therefore fixed in

advance. The decided cases of the Court, 3. The applicants state in their reply based on the principles of legal certainty that the Commission cannot, on the one and the protection of legitimate

WAGNER v COMMISSION

The Commission makes the point that As far as concerns Regulation No the Court in its judgment in Case 98/78, 243/78, it refers to levies or refunds Firma A. Racke v Hauptzollamt Mainz fixed following an invitation to tender [1979] ECR 69, and in its judgment in but is silent on the crucial question in Case 99/78, Weingut Gustav Decker KG Case 108/77 as to whether the monetary v Hauptzollamt Landau [1979] ECR 101, coefficient must also be applied to confirmed the possibility of the retro- refunds fixed in national currency in an active application of legal measures award following an invitation to tender. imposing charges. For such retroactivity If not it was unnecessary for the to exist it is necessary that the objective Commission to adopt the disputed regu- to be attained should require it and that lations. the legitimate expectation of the parties concerned should be properly protected. That was the position in the present case. 4. The Commission in its rejoinder continues to believe that as from the date

of publication of Regulation No 1182/78 the parties concerned could not have The Commission again denies that the been unaware that the coefficient would parties concerned could legitimately in any case be applied as from 1 June expect that the coefficient would not be 1978 to all exports in the sugar sector. applied; they must have known that the administration was applying the coefficient. Moreover, the tenders The crux of this case is that the submitted in answer to the invitations to

applicants do not dispute the reduction tender very definitely took into account of the m.c.a. but are challenging the the application of that coefficient, as is reduction of refunds fixed in advance. If shown by the results of the invitations to the monetary coefficient is an integral tender prior to the judgment in Case part of the m.c.a. the alteration of the 108/77.

1 By an application of 26 July 1978 received at the Court Registry on 28 July 1978 the applicants requested the Court to declare invalid Commission Regu- lation (EEC) No 1182/78 supplementing Regulations (EEC) No 1634/77 and (EEC) No 1790/77 on standing invitations to tender to determine export refunds on sugar (Official Journal 1978 L 145, p. 46) and Commission Regulation (EEC) No 1392/78 of 23 June 1978 amending Regulation (EEC) No 1380/75 laying down detailed rules for the application of monetary compensatory amounts (Official Journal 1978 L 167, p. 53) to the extent to which those regulations provide that the coefficient referred to in Article 4 (3) of Regulation No 1380/75, where it amounts to less than 1, shall apply to refunds, the amount of which has been set in a national currency in the statement of award following an invitation to tender, and in the alternative, to the extent to which those regulations provide that that coefficient, where it amounts to less than 1, shall apply to refunds, the amount of, which has been set in a national currency in the statement of award following an invitation to tender, in transactions for which the customs formalities were completed before 1 June 1978.

WAGNER COMMISSION

2 Following the adoption of Commission Regulation (EEC) No 1837/78 of 31 July 1978 defining the scope of Article 4 (5) of Regulation (EEC) No 1380/75 laying down detailed rules for the application of monetary compensatory amounts (Official Journal 1978 L 210, p. 51) the applicants amended their conclusions in the manner described below.

JUDGMENT OF 20. 11. 1979 — CASE 162/78

6 At that time Article 4 of Regulation No 1380/75 read as follows:

"1. A monetary compensatory amount shall be fixed for each product and for each Member State in respect of which the conditions for the application of monetary compensatory amounts are fulfilled.

The monetary compensatory amount shall be calculated on the basis of the common price, reduced where appropriate in accordance with the provisions of the Act of Accession.

2. The amount fixed in accordance with the preceding paragraph shall apply in trade between the Member States and in trade with third countries.

3. However,

(c) the amount obtained after multiplication shall, after conversion into national currency, be reduced or increased, as the case may be, by the monetary compensatory amount."

7 The Court for the reasons given in its judgment of 24 May 1978 in Case 108/77 (Hans-Otto Wagner GmbH Agrarhandel KG v Hauptzollamt Hamburg-Jonas [1978] ECR 1187) answered the question as follows:

WAGNER COMMISSION

"Article 4 (3) of Regulation No 1380/75, read in conjunction with Regu- lation No 210/75, must be interpreted as meaning that the export refund in the sugar sector, fixed in national currency for each exporter individually on the basis of a tender, is not to be multiplied by a monetary coefficient, fixed by the Commission, derived from the percentage used to calculate the monetary compensation".

JUDGMENT OF 20. 11. 1979 — CASE 162/78

(a) for operations in the sugar sector, on or after 1 June 1978;

(b) for operations in other sectors, on or after 24 June 1978;

(c) before these dates in cases where its application will be of advantage to the person concerned".

Regulation No 1837/78, which supplements Regulation No 1392/78 and repeals Regulation No 1182/78, entered into force on 1 August 1978.

11 The applicants stated in a letter of 8 August 1978 that it was no longer necessary for the Court to give a decision on the various principal submissions in their application of 26 July 1978, which they amended having regard to the situation created by the adoption of Regulation No 1837/78. In their new conclusions they claim that the Court should:

Admissibility

12 The applicants consider that the conditions laid down by the second paragraph of Article 173 are present. They claim that the disputed regulation is of direct and individual concern to them and that the issue in this case is

that refunds which they had been definitively awarded were subsequently reduced and not merely that monetary compensatory amounts were altered. Moreover, the fact that Regulation No 1837/78, like Regulations Nos 1182/78 and 1392/78, as far as the future is concerned, constitute general measures and that in consequence the Commission chose the legal form of a regulation does not prevent those regulations, to the extent to which they provide for the retroactive application of the monetary coefficient to refunds which have already been awarded, from being in the nature of decisions addressed to specified persons which may be challenged by those persons as provided for in the second paragraph of Article 173 of the Treaty. The three regulations contain provisions which have genuine retroactive effect. They are intended to govern a specific situation in that they apply to certain operations which had already been concluded when the regulations entered into force.

13 The applicants take the view that, to the extent to which the regulations deal with refunds awarded before 1 June 1978, they are of concern to a small number of exporters who were definitively ascertained on the date mentioned. Since those exporters were awarded refunds in a national currency before 1 June 1978 they are differentiated from all other addressees of the general provision and may consequently be distinguished individually. The applicants belong to that category of exporters and the factors establishing that they are individually concerned are therefore present.

15 In the view of the Commission the reason for the applicants' conviction that they are individually concerned lies in the fact that they belong to a group of exporters who became successful tenderers before a specified date. However, that group of exporters forms only a part of the unspecified number of traders covered by Regulation No 1380/75, as amended by Regulation No 1392/78. The fact that the applicants belong, within the undefined group of persons affected, to a sub-group distinguished by a particular factual situation does not mean that they are to that extent distinguished individually by the regulation itself. The disputed regulation does not draw any distinction depending on whether the traders concerned participate in invitations to tender or have been stated to be successful tenderers or have already made arrangements for the purpose of their commercial operations; it applies the same treatment to all those who have engaged in operations for which the formalities have not yet been completed. If the applicants' argument were correct the result would be that it would be possible, with reference to suitable facts, to form a number of sub-groups distinguished by individual features within the unspecified number of persons affected. Such a view would make the conditions laid down by the second paragraph of Article 173 of the Treaty, which requires that the decision which a person challenges must be of individual concern to him, to a great extent ineffective.

16 Article 173 of the EEC Treaty entitles a private individual to challenge a decision addressed to him or a decision which, although adopted in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former. The specific purpose of that provision is to

converted, in order to make them comparable, into units of account by applying the "green" rates. Awards are made only after taking into account the maximum amount fixed in units of account and by comparison therewith. The result of making awards with reference to the maximum amount fixed in units of account is that the refunds awarded, expressed in national currency by applying the "green" rates, already reflect the impact of the revaluation or devaluation of the currency in question which the monetary compensatory amounts are intended to offset. Thus the effect of levying or granting the whole of the monetary compensatory amount fixed for intra-Community trade would be to double the incidence of monetary compensation on that part of the Community guarantee price represented by the export refund. The application of the coefficient at the same time as the monetary compensatory amount is granted or levied makes it possible to avoid that double incidence.

JUDGMENT OF 20. 11. 1979 — CASE 162/78

20 In pursuance of the above-mentioned principles the Commission considered it necessary to adopt the regulations which are criticized in this case.

21 Those regulations do not in fact reduce the refunds awarded but, by applying the coefficient to the refunds, merely adjust the monetary compensatory amount by reducing it in the case of revalued currencies and by increasing it in the case of devalued currencies. The application of the coefficient is only a technical way of adjusting, in trade with non-member countries, the basic monetary compensatory amount which is fixed at a uniform level calculated on the basis of Community prices. The basic monetary compensatory amount has therefore to be reduced by an amount calculated by applying to the levy or refund the coefficient determined by the revaluation or devaluation, so that the reduction of the refund itself is not affected.

THE COURT

hereby:

1. Dismisses the application as inadmissible;

2. Orders the applicants to pay the costs.

Kutscher O'Keeffe Touffait

Mertens de Wilmars Pescatore Mackenzie Stuart Bosco