C-179/80

JUDGMENT OF THE COURT 19 OCTOBER 1982

SA Roquette Frères v Council of the European Communities

(Isoglucose — Production quotas)

Case 179/80

Application for a declaration of nullity — Application directed against a regulation which was confirmed by another regulation adopted during the proceedings — Dismissal as unfounded of the application submitted in the meantime and directed against the new regulation — Continuation of proceedings against the first regulation devoid ofpurpose — Decision on the point at issue unnecessary (EEC Treaty, Art. 172)

In Case 179/80

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Peter Gilsdorf, assisted by Jacques Delmoly, a némber of its Legal Department, with an address for service in Luxembourg at the office of. Mario Cervino, Legal Adviser to the Commission, Jean Monnet Building, Kirchberg, intervener,

APPLICATION for a declaration that Council Regulation (EEC) No 1592/80 of 24 June 1980 on the application of the system of production quotas in the sugar and isoglucose sectors during the period 1 July 1980 to 30 June 1981 (Official Journal 1980, L 160, p. 12) is void in so far as it extends the validity of the system of production quotas for isoglucose established by Council Regulation (EEC) No 1111/77 of 17 May 1977 laying down common provisions for isoglucose (Official Journal 1977, L 134, p. 4), as subsequently amended,

THE COURT

composed of: J. Mertens de Wilmars, President, A. O'Keeffe, U. Everling and A. Chloros (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, G. Bosco, T. Koopmans and O. Due, Judges,

Advocate General: G. Reischl Registrar: P. Heim

gives the following

1. By a preliminary ruling of 25 October 1978 in Joined Cases 103 and 145/77, Royal Scbolten-Honig (Holdings) Ltd v Intervention Board for Agricultural Produce and Tunnel Refineries Ltd v Intervention Board for 3. Regulation No 1293/79 amended Agricultural Produce [1978] ECR 2037, Regulation No 1111/77 in the light of the Court of Justice held that Council the Court's judgment of 25 October Regulation No 1111/77 of 17 May 1977 1978. Stating in its preamble that the laying down common provisions for most appropriate means for avoiding any isoglucose was invalid in so far as inequality of treatment between sugar Articles 8 and 9 thereof imposed a and isoglucose producers was to subject production levy on isoglucose of five isoglucose production to rules analogous units of account per 100 kg of dry matter to those applying to sugar production for the period corresponding to the sugar until 30 June 1980, Regulation No marketing year 1977/78. The Court 1293/79 introduced inter alia, as a found that the system established by the transitional measure until that date, a aforesaid articles offended against the temporary system of production quotas for general principle of equality (in those isoglucose (see the sixth recital). The cases between sugar producers and reasons for the adoption of detailed rules isoglucose producers). However, it governing the allocation and determi­ added that its judgment left the Council nation of quotas are set out in the free to take any necessary measures seventh recital. The eighth recital deals compatible with Comunity law for with the need to fix the specific amount ensuring the proper functioning of the of the production levy applicable to market in sweeteners. isoglucose production.

1 August 1976 to 31 July 1977, Article 9 1 July 1977 to 30 June 1978. 1. A basic quota shall be allotted to A maximum quota shall be allotted to each isoglucose producing undertaking established in the Community, for the such undertakings, determined in period referred to in Article 8 (1). accordance with the provisions of paragraph (2). Without prejudice to implementation of paragraph (3), the basic quota of each 6. A basic quota shall be allotted to such undertaking shall be equal to twice undertakings starting systematic pro­ its production as determined, under duction of isoglucose during the period this regulation, during the period referred to in Article 8 (1) within the 1 November 1978 to 30 April 1979. limits of a Community reserve quantity equal to 5 % of the total of basic quotas established pursuant to paragraph (1). 2. To each undertaking' having a basic quota, there shall also be allotted a 7. The quantity of isoglucose produced maximum quota equal to its basic quota during the period referred to in Article multiplied by a coefficient. This 8 (1) which: coefficient shall be that fixed by virtue of the second subparagraph of Article 25 Exceeds the maximum quota of the (2) of Regulation (EEC) No 3330/74 for undertaking, the period 1 July 1979 to 30 June 1980. or 3. The basic quota referred to in Was produced by an undertaking not paragraph (1) shall, if necessary, be having a basic quota corrected so that the maximum quota determined in accordance with may not be disposed of on the paragraph (2): Community's internal market and must

Fabbriche Riunite Piazza Erculea 9, Milano 10 7C6 Amido Glucosio Destrina, SpA Tunnel Refineries Ltd Thames Bank House, Greenwich, London SE 10 OPA

4. By separate judgments delivered on been adopted without the European Par­ 29 October 1980 in Case 138/79 liament's being consulted, as required by Roquette v Council [1980] ECR 3333 and Article 43 of the EEC Treaty. In its in Case 139/79 Maizena v Council decision in the aforesaid cases, however, [1980] ECR 3393, the Court declared the Court dismissed all the substantive Regulation No 1293/79 void for arguments directed against the system ot infringement of essential procedural production quotas established by the said requirements on the ground that it had regulation and, in particular, against the

JUDGMENT OF 19. 10. 1982 — CASE 179/80

B — Course of the procedure and related (a) Regulation (EEC) No 387/81 events amending Regulation No 1111/77 laying down common provisions for isoglucose (Official Journal 1981, 1. By application lodged at the Court L 44, p. 1). Regulation No 387/81 Registry on 21 August 1980, Roquette reintroduces, by referring to the Frères, a company incorporated under provisions of Regulation No French law which manufactures inter alia 1111/77, inter alia the system of isoglucose products at its factory in production quotas with retroactive Lestrem (Pas-de-Calais), requested the effect from 1 July 1979. It should be Court to declare invalid the provision of noted that, on this occasion, the Regulation No 1592/80 which extends Council obtained the opinion of the the validity of the system of quotas European Parliament (given on 9 established by Regulation No 1111/77, February 1981). as amended, and by Annex II thereto, which sets out the applicant's production quota for the period between 1 July 1980 and 30 June 1981. (b) Regulation (EEC) No 388/81 amending Regulation No 1592/80 (Official Journal 1981, L 44, p. 4). Regulation No 388/81, according to 2. By a document headed: "Addendum the second recital in the preamble to the application instituting the thereto, was adopted "in order to proceedings", lodged at the Court avoid any doubts as to the legality of Registry on 8 November 1980, the ... Regulation (EEC) No 1592/80". applicant claims that the Council should With that end in view, Article 1 of be ordered to pay the costs. Regulation No 388/81 actually provides that Article 2 of Regulation No 1592/80 is to refer to Article 9 3. By order of 17 December 1980, the of Regulation No 1111/77 as Court allowed the Commission to amended by Regulation No 387/81.

6. By an additional statement lodged at In its defence, the Council contends that the Court Registry on 13 April 1981, the the Court should dismiss as unfounded applicant replied to the fresh issue raised the application for a declaration that by the Council in its rejoinder. Regulation No 1592/80 is void and that the applicant sould be ordered to pay the costs. 7. The written procedure came to an end without the Commission's having submitted, in its capacity as intervener, The Council considers that since the any written observations on the applicant's claim for costs, which is out substance of the case. The Commission of time, falls in particular within the stated by letter of 16 March 1981 that it scope of Article 173 of the EEC Treaty was wholly in agreement with the and of Article 42 of the Rules of arguments adduced by the Council and Procedure it is inadmissible. reserved the right to submit observations solely at the hearing. In its reply, the applicant does not put forward any formal conclusions but 8. On hearing the report of the Judge- challenges the Council's objection Rapporteur and the views of the regarding the admissibility of the Advocate General, the Court decided to applicant's claim for costs. Article 173 of open the oral procedure without any the EEC Treaty prescribes a period of preparatory inquiry. two months within which an application may be made for a declaration that an unlawful measure is void but does not apply to a claim for costs. Moreover, Article 42 of the Rules of Procedure II — Conclusion of the parties concerns only the raising of a fresh issue and a claim for costs is not a fresh issue.

application for a declaration of nullity as It can therefore be shown that the Par­ an abuse of process, without there being liament was not consulted on the text of any need to examine the ground of Regulation No 1592/80 and that the complaint relied upon by the applicant. reference concerning the Parliament's That fresh issue is based on Article 42 opinion, incorporated by the Council in (2) of the Rules of Procedure. In the the preamble to the regulation, reflects a alternative, the Council argues that the desire to comply with an essential pro­ application should be dismissed as cedural requirement although it lacks unfounded. In any event, the Council any real content. contends that the Court should order the applicant to pay the costs. In those circumstances, the requirement laid down by Article 43 (2) of the EEC Treaty cannot be regarded as having been satisfied. III — Submissions and argu­ ments of the parties With regard to the substance, the applicant merely restates the arguments which it put forward in Case 138/79. In its application, the applicant claims that the Council again failed to await the In its defence, the Council points out European Parliament's opinion before that the proposals designed to rationalize adopting Regulation No 1592/80. In the the common agricultural policy (Official preamble to that regulation, the Council Jounal C 60 of 10 March 1980) include refers to "the opinion of the European under Point III the "Proposal for a Parliament" and the text contains a Council regulation on the common organ- reference to the following footnote: ization of the markets in sugar and Official Jounral C 97 of 21 April 1980, isoglucose". p. 33. It is however apparent from that Official Journal that the reference is to the first part of a lengthy resolution That proposal was designed, in the first adopted by the Parliament on 26 March place, to replace the existing basic regu­ 1980 embodying its opinion on: lation on sugar, namely Regulation (EEC) No 3330/74, in view of the fact that the system of quotas provided for "I — The communication from the therein was to expire on 1 July 1980. Commission of the European Communities to the Council In its proposal, the Commission concerning changes in the provided, in the case of sugar and common agricultural policy to isoglucose, for a system of quotas for a help balance the markets and period of five years involving a number streamline expenditure of important changes in the arrangements, including a reduction in sugar and isoglucose quotas. In other II — The proposals from the respects, the proposed system was more Commission of the European or less identical to that already applied in Communities to the Council on the sugar and isoglucose sector. the fixing of prices of certain agricultural products and on certain related measures The European Parliament gave its opinion on that proposal, which was published in Official Journal C 97 of 21 on monetary compensatory amounts." April 1980 at p. 33. In that very detailed

opinion on the sugar policy to be Commission in accordance with Article pursued by the Community in the future, 149 of the EEC Treaty. That proposal the Parliament expressed its disapproval became Regulation No 1592/80. of any reduction in the quotas (Point 49) and therefore requested the Commission Accordingly, the Council adopted a to maintain the current regulations system which was similar to that desired (Point 50); finally, it asked for the by the Parliament and which had not isoglucose arrangements to be brought undergone any substantive amendment in into line with the sugar regulations relation to the Parliament's opinion; (Point 53). however, it adopted it for a shorter period pending the adoption of a Thus the Parliament gave a very detailed definitive position. opinion. Therefore the submission that the regu­ The Council maintains that if, by its lation was vitiated by a a procedural submission that the regulation was defect should in any event be rejected. tainted by a procedural defect the applicant meant that the text finally The Council rejects all the substantive adopted bore no resemblance to the arguments for the same reasons as those Commission's proposal, which would which it gave in Case 138/79. indicate that no genuine consultation had taken place, then that argument too is incorrect. In its reply, the applicant raises a fresh issue based on a new factor, namely the judgments of the Court of 29 October After consulting the European Parl­ 1980 declaring Regulation No 1293/70 iament, the Council considered that it void. was unable to take an immediate decision regarding a reduction in quotas and preferred to extend the validity The application contends that Regulation of the system in force (Regulation No 1592/80, in so far as it merely No 3330/74 for sugar and Regulation extends the validity of Regulation No No 1111/77, as amended in 1979, for 1293/79, is void for the same reasons as isoglucose) for a further marketing year, the latter. Regulation No 1592/80 is pending a decision on the system to be inevitably, not to say automatically, applied in future (see the third and unlawful in consequence of the Court's fourth recitals in the preamble to Regu­ finding in its above-mentioned judgment lation No 1592/80). that Regulation No 1293/79 was unlawful. It is clear therefore that the Parliament was consulted on the basis of a With regard to the admissibility of that Commission proposal concerning the submission, the applicant maintains that sugar and isoglucose sector, that the the conditions laid down by Article proposal which was applicable for five 42 (2) of the Rules of Procedure are years provided for a reduction in quotas, fulfilled. that the Parliament expressed its disap­ proval of such a reduction and that not As regards the Parliament's opinion, the wishing to take an immediate decision to applicant emphasizes that the Parliament reduce quotas the Council preferred to was never consulted on the proposal to extend the validity of the existing system extend the validity of the existing system. for a further year, which it did by That is apparent from the texts published adopting a proposal amended by the in the Official Journal of 21 April 1980

Decision

1 By application lodged at the Court Registry on 21 August 1980, Roquette Frères, a company incorporated under French law, instituted proceedings under the second paragraph of Article 173 of the EEC Treaty for a declaration that Council Regulation ( EEC ) No 1592 / 80 of 24 June 1980 on the application of the system of production quotas in the sugar and isoglucose sectors during the period 1 July 1980 to 30 June 1981 (Official Journal 1980, L 160, p. 12) was partially void. More precisely, the applicant

ROQUETTE FRÈRES v COUNCIL

asked the Court to declare invalid Article 2 of the said regulation as well as Annex II thereto. Article 2 (1) extends the validity of the system of production quotas for isoglucose which was incorporated, for the period betwen 1 July 1979 and 30 June 1980, in Council Regulation (EEC) No 1111/77 of 17 May 1977 laying down common provisions for isoglucose (Official Journal 1977 L 134, p. 4) by Regulation (EEC) No 1293/79 of 25 June 1979 (Official Journal 1979, 162, p. 10, as rectified by a corrigendum in Official Journal 1979, L 176, p. 37). Under Article 2 (2), the basic quota for each isoglucose producing enterprise for the period from 1 July 1980 to 30 June 1981 was to be that applicable during the period from 1 July 1979 to 30 June 1980.

2 It should be noted that Council Regulation No 1592/80 was adopted while the proceedings were pending which led to the Court's declaration, in its judgments of 29 October 1980 in Case 138/79 Roquette v Council [1980] ECR 3333 and in Case 139/79 Maizena v Council [1980] ECR 3393, that Regulation No 1293/79 was void on the ground that it had been adopted without the European Parliament's being consulted, as required by Article 43 of the EEC Treaty. In its decision in the aforesaid cases, however, the Court rejected all the substantive arguments directed against the system of production quotas established for isoglucose by the said regulation and, in particular, against the fixing of basic quotas for the applicants in both cases.

5 In its rejoinder, the Council raised a fresh issue, within the meaning of Article 42 of the Rules of Procedure, by contending that the action has become pointless as a result of the adoption of the two aforesaid regulations. The Council considers, moreover, that the applicant no longer has any interest in proceeding with its application and that to do so may be regarded as an abuse of process.

6 In an additional statement submitted in reply to the fresh issue raised by the Council, the applicant points out that it has no intention of withdrawing its application but leaves to the Court the question whether or not it is necessary to give a decision on the point at issue.

7 Whilst proceeding with its action in this case, the applicant instituted proceedings, by application lodged at the Court Registry on 7 May 1981, for a declaration that Council Regulations Nos 387 and 388/81 were void. By judgment of 30 September 1982, the Court dismissed that application as unfounded.

8 In the light of all the foregoing considerations, it must be stated that a declaration that Regulation No 1592/80 is void is no longer of any interest to the applicant in view of the fact that the provisions which it seeks to have declared void have, in the meantime, been confirmed by a regulation against

ROQUETTE FRÈRES v COUNCIL

which an application for a declaration of nullity brought by the applicant was dismissed by the Court as unfounded in its aforementioned judgment.

On those grounds,

THE COURT

hereby:

1. Declares that it is unnecessary for it to give a decision on the point at issue;

OPINION OF MR REISCHL — CASE 179/80

2. Orders the parties to bear their own costs.

Mr President, lation but on the draft of a regulation Members of the Court, which was to contain quota arrangements for five years. In my This case is not proceeding to judgment opinion if the Parliament approves more on the main issue and under Article 69 comprehensive fresh arrangements it (5) of the Rules of Procedure the costs thereby approves a continuation of the are in the discretion of the Court. corresponding arrangements hitherto in On consideration of the application at force. the final stage, there remains in fact only It is significant that the Parliament which a single issue which is the claim that the intervened in the first case (Case 138/79 regulation against which the application Roquette Frères v Council of the European was made was adopted without the Communities, judgment of 29 October required consultation of the Parliament. 1980), has not intervened in this case. I I do not think that that claim is well believe too that the Parliament is of the founded because the Parliament did not opinion that in the present case its rights express a view on this particular regu­ have not been infringed.

In my opinion therefore the application is certainly not well founded . I would nevertheless suggest that the Court should provide for the costs to be shared , that is to say, should order each party to bear its own costs.

1 — Translated from the German.