C-789/79

JUDGMENT OF 17. 6. 1980 — JOINED CASES 789 AND 790/79

In Joined Cases 789 and 790/79

1. CALPAK S.P.A., Bologna; 2. SOCIETÀ EMILIANA LAVORAZIONE FRUTTA S.P.A., Ravenna, represented by J. Lever, Queen's Counsel of Gray's Inn, and U. Bourke, Solicitor of the Supreme Court, of Messrs Clifford-Turner, Brussels, with an address for service in Luxembourg at the Chambers of J. Hoss, 84 Grand'Rue,

applicants, ν

COMMISSION OF THE EUROPEAN COMMUNITIES represented by R. Wainwright and H. Bronkhorst, members of its Legal Department, acting as Agents, assisted by A. Durand, Barrister of the Middle Temple, with an address for service in Luxembourg at the office of M. Cervino, Jean Monnet Building, Kirchberg,

defendant,

JUDGMENT

Facts and Issues

The facts of the case, the course of the 1640/79 of 24 July 1979 limiting the procedure and the submissions and granting of production aid for Williams arguments of the parties may be pears preserved in syrup (Official summarized as follows: Journal, L 192, p. 4) limited the granting of aid "for each marketing year" to 57 100 tonnes, a quantity representing, according to the preamble to the Regu­ lation, 8 3 % of the average production for the 1976/77, 1977/78 and 1978/79 marketing years. According to the I — F a c t s and w r i t t e n p r o c e d u r e Commission, that quantity also represents 105% of the production for the 1978/79 marketing year which was declared by the French and Italian auth­ orities.

JUDGMENT OF 17. 6. 1980 — JOINED CASES 789 AND 790/79

CALPAK ν COMMISSION

(b) in subsequent marketing years Article 6 (1) of Regulation No 1530/78) are no more nor less, in fact, than decisions adopted by the Commission, qualifying for production aid. concerning the applicants directly and individually, as a result of a political agreement to divide the amount of aid 4. Alternatively, declare Article 1 of fixed by the Council between French and Regulation No 1731/79 void in Italian producers in the ratio of 36% to so far as it leaves undetermined 64%, to the disadvantage of Italian (provided only that it does not producers. exceed 105%) the actual percentage of the quantity produced by a processor during the 1978/79 marketing year that The truth is, according to the applicants, is to be used in establishing the that the provisions were conceived in maximum production by that such a manner as to enable the national processor: authorities and the Commission to grant aid to French and Italian producers in the proportions mentioned above without (i) in 1979/80 and taking into account the actual production during the reference year.

ing to the applicants, a decision for — Declare the applications admissible; which reasons must be stated under Article 190 of the EEC Treaty, the — Reserve its decision on admissibility general terms in which the preambles and deal with the preliminary to the two Commission regulations objection at the same time as the are expressed do not, in their substance of the application; opinion, disclose the real reasons; — In any event, order the Commission (b) Lack of competence and improper purpose, in so far as the adoption of to pay the costs of the objections of the measures under attack was inadmissibility. motivated by political considerations which are not contemplated by 9. After hearing the report of the Article 39 of the Treaty; Judge-Rapporteur and the views of the (c) Unlawful discrimination against the Advocate General the Court decided to applicants in contravention of Article open the oral procedure on the objection 7 (nationality) and Article 40 (3) of inadmissibility. At the same time it (discrimination between producers requested the Commission to give its within the Community), as well as views in writing, before the sitting, on violation of the general principle of the applicants' argument which was also equal treatment; put forward in support of the admissibility of the application, and (d) Misuse by the Commission of the which was based on the alleged existence powers conferred on it by the of an agreement to the effect that the Council as regards the alleged amount of aid available must be divided agreement on the distribution of between Italy and France in the ratio of Community aid; 64% to 36% respectively, and to produce working document No VI.E.I/ (e) Fundamental errors of fact and 63/79 of 12 July 1979 and any other failure to obtain information, in so document which might refer to such an far as the Commission relied on agreement. demonstrably inaccurate assessments provided by the national authorities By an order of 10 December 1979 the instead of seeking accurate infor- Court also decided, pursuant to Article mation from national producers' 43 of the Rules of Procedure, to join the organizations. two cases for the purposes of the written and oral procedure and for judgment. 7. The Commission has submitted pre- liminary objections of inadmissibility under Article 91 of the Rules of Procedure and claims that the Court II — Submissions and arguments should: of the parties on the ad- missibility of the appli- — Dismiss the applications as. inad- cations missible; — Order the applicants to pay the costs. 1. The Commission maintains that the regulations under attack, which lay 8. In their answer to the objection of down rules of general application, are inadmissibility, lodged on 18 January fundamentally regulations within the 1980, the applicants contend that the meaning of Article 189 of the Treaty and Court should: that, as a result, the applicants cannot

in this instance avail themselves of a measure as a regulation is not called in Article 173. question by the possibility of determining more or less precisely the number or even the identity of the persons to whom Because the complexity of the subject- it applies at a given m o m e n t . . . " . matter compels the Council to confine itself to the "basic elements", and because the administration of the The Commission states that it did not provisions in detail is entrusted to the seek information on the number or different national authorities, the identity of processing firms, or on the adoption of a political decision by the Council may require, in the opinion of production figures for individual firms, the Commission, the adoption of a series and that its information was limited to of legislative measures by the Com­ the overall production figure declared by mission, but these do not constitute in­ the authorities and by the French and structions to the national authorities Italian trade associations. According to from a hierarchical superior. Each the Commission, Regulation No 1731/79 enactment partakes of the legislative is in fact legislative in nature, since the nature of the whole series, and it is not rules which it contains are expressed in a open to the applicants to pick out certain general manner and apply to anyone measures which form part of that who engages in the activity of processing legislation and to qualify them as being Williams pears and were not determined in the nature of decisions. In any case by subjective considerations. the onus is on the applicants to demonstrate that the measures are in fact decisions, that they concern the The Commission concedes that the applicants individually and that they applicants are directly concerned by concern them directly, for each of these Regulation No 1731/79 in so far as the conditions must be fulfilled for the amount of the aid is fixed at 105% of applications to be held admissible. their production in 1978/79, but it is of the opinion that they are not concerned individually because the regulation concerns all processing undertakings 2. So far as Regulation No 1731/79 is without exception, that is to say, both concerned the Commission disputes the existing undertakings and new under­ allegation that it has the power to make takings which have no previous decisions on the distribution among production. processors. The assertion is not con­ firmed by the recitals to Regulations Nos 1530/78 and 1731/79, which are entirely normative in tone and effect. In reality 3. As far as Regulation No 1732/79, the responsibility is shared by the amending Regulation No 1530/78, is Commission as rule-maker and the concerned, the Commission states that its Member State as the implementer of the normative character can hardly be rules. disputed by the applicants and that the amendments which it brings about have not changed the nature of the original The Commission recalls that in its measure. judgment of 5 Mav 1977 in Case 101/76 Koninklijke Scholten Honig ν Council and Commission ([1977] ECR 797 at p. In addition, the applicants are not 808) the Court stated that "the nature of oncerned individually by that regu-

In the applicants' view the regulations As regards Regulations Nos 1731/79 and therefore have a dual character, with 1732/79 the applicants contest the aspects both of a decision and of argument that the question whether legislation. The function and object of measures or parts of them in fact the regulations are, inter alia, to limit the constitute decisions and whether they amount of aid for each processor and the concern the applicants directly and essential point, according to the individually may be separated into three applicants, is that the number and distinct conditions, as the Commission identity of the processors may be has done. In fact it is sufficient to show determined. The fact that the that the regulations concern the Commission, owing to its own bad faith, applicants not only directly (which the lacked that knowledge does not alter the Commission has admitted with regard to "closed" nature of the group of Regulation No 1731/79) but also individuals to whom the measures were individually in order to establish thereby addressed. The maximum aid to which that they do in reality contain decisions each producer was entitled was fixed by within the meaning of the second Regulation No 1731/79 and it remained paragraph of Article 173. only for the national authorities to calculate and allocate the aid.

According to the applicants, the Commission avoided naming the The applicants point out that the individual processors and giving them quotation from the judgment in Case · individual percentages, that is to say, it 101/76 Koninklijke Scholten Honig avoided making decisions having the referred to by the Commission is form of such measures, by proceedings incomplete and that the passage in as follows: question reads in full as follows:

As far as the procedural aspects of the case are concerned the applicants consider that the Court should postpone In reply to the questions asked by the a decision on the issue of admissibility Court the Commission stated in the until judgment is given on the substance course of the oral procedure that the of the applications, principally because production figures for the marketing the Commission's objections of inad­ years 1973 to 1978 show, apart from the missibility relate to only a part of the year 1976, a continuing decrease in applications, namely the request for the Community production, and that the partial annulment of the regulations, and purpose of the rules, especially the it has submitted no argument as to the adoption of 1978 as the reference year, other part, relating to the alleged was to maintain production at that low existence of a decision that Italian level and not to stimulate it. It is producers should be allotted 64%, and possible, but certainly not indefensible, no more, of the total aid available for that such a restriction has a greater Williams pears preserved in syrup. incidence upon marginal producers, that is to say those who do not have a stable production rate, than upon co­ operatives, which have a regular production rate. III — Questions asked by the Court

If, however, the quantities which were declared by the Italian authorities for the 1. In a letter dated 7 March 1980 the year 1978 are too low and if the 57 100 Commission lodged at the Registry at tonnes do not, as a result, entitle Italian

JUDGMENT OF 17. 6. 1980 — JOINED CASES 789 AND 790/79

2 As amplified in the course of the oral procedure, the applications concern in the main Article 1 of Commission Regulation No 1731/79 of 6 August 1979 laying down detailed rules restricting the granting of production aid for

CALPAK ν COMMISSION

Williams pears preserved in syrup (Official Journal L 199, p. 21), and Article 1 (3) of Commission Regulation No 1732/79 of 6 August 1979 amending Regulation No 1530/78 laying down rules for the application of the system of aid in respect of certain products processed from fruit and vegetables (Official Journal L 199, p. 22). The first of those provisions, both of which took effect from the beginning of the marketing year 1979/80, restricts the aid granted to each processing undertaking to 105% of the amount produced during the 1978/79 marketing year. The second provision provides that all applications for aid must be supported by a statement of the quantity produced by the processor during the marketing year preceding the marketing year in question.

3 The system of production aid for products processed from fruit and vegetables was introduced by Council Regulation No 1152/78 of 30 May 1978, amending Regulation No 516/77 on the common organization of the market in that sector (Official Journal L 144, p. 1). Article 2 of that regu­ lation added a new Article 3a to Regulation No 516/77, paragraph (5) of which empowered the Council to limit the aid "taking account of average production in the three years preceding the marketing year for which the aid is "fixed" in order to avoid the risk of overproduction.

Council in its regulations, adopting instead as the sole reference year the 1978/79 marketing year, which was atypical for the product in question because production in Italy was unusually low. That is especially true in the case of the applicants and the other processors in the private sector, whose production, unlike that of public undertakings and co-operatives, is extremely variable. When crops are plentiful, as, for example, during the 1976/77 marketing year, undertakings such as the applicants help to absorb the surplus by buying up large quantities of fruit. When basic supplies are less plentiful, however, as in the case of the 1978/79 marketing year, such undertakings purchase much less, and as a result the quantity they process into preserves is small. The Commission is well aware of those facts. There is only a very limited number of Williams pears processors in the Community. The undertakings which processed that fruit during the 1978/79 marketing year, and which are therefore concerned by the contested provisions, constitute not merely a closed and definable group but equally a group the members of which were either known to or at least identifiable by the Commission at the time when it adopted the disputed provisions. The purpose of such provisions moreover, can only have been to prejudice under- takings, such as the applicants, whose production had been extremely low for the single marketing year selected as a point of reference by the Commission. Thus the applicants claim to have fulfilled the requirements for being directly and individually concerned by the provisions, which is sufficient, in their opinion, to entitle them to request the annulment thereof under the second paragraph of Article 173 of the Treaty.

As the amendment to Regulation No 1530/78 made by Article 1 (3) of Regu­ lation No 1732/79 concerning the information to be submitted in support of the application for aid is merely the natural consequence of the limitation imposed by Article 1 of Regulation N o 1731/79, consideration need only be given to the nature of the latter provision.

9 A provision which limits the granting of production aid for all producers in respect of a particular product to a uniform percentage of the quantity produced by them during a uniform preceding period is by nature a measure of general application within the meaning of Article 189 of the Treaty. In fact the measure applies to objectively determined situations and produces legal effects with regard to categories of persons described in a generalized and abstract manner. The nature of the measure as a regulation is not called in question by the mere fact that it is possible to determine the number or even the identity of the producers to be granted the aid which is limited thereby.

10 Nor is the fact that the choice of reference period is particularly important for the applicants, whose production is subject to considerable variation from one marketing year to another as a result of their own programme of production, sufficient to entitle them to an individual remedy. Moreover, the applicants have not established the existence of circumstances such as to justify describing that choice — the conformity of which with the Council's regulations, and especially with the basic regulation, is only relevant to the substantive issues of the case — as a decision adopted specifically in relation to them and, as such, entitling them to institute proceedings under the second paragraph of Article 173.

1 4 Under Article 69 (2) of the Rules of Procedure the unsuccessful parties shall be ordered to pay the costs. As the applicants have failed in their applications, they must be ordered to pay the costs.

CALPAK ν COMMISSION

On those grounds,

THE COURT

hereby: 1. Dismisses the applications as inadmissible;

2. Orders the applicants to pay the costs.