C-45/81

In Case 45/81

ALEXANDER MOKSEL IMPORT-EXPORT G M B H & Co. HANDELS KG Buchloe, Federal Republic of Germany, represented by P. Wendt, Rechtsanwalt Hamburg, with an address for service in Luxembourg at the ortice ot J. Jansen-Housse, 21 Rue Aldringen, applicant,

supported by

TIAC HANDELMAATSCHAPPIJ BV, Apeldoorn, Netherlands, represented by- David Vaughan QC, instructed bv Messrs Clyde & Co., Solicitors, London, with an address for service in Luxembourg at the Chambers ot trnest Arendt, Centre Louvigny, 34 Rue Philippe-II, intervener,

1 — Language of the Caie: German.

JUDGMENT OF 25. 3. 1982 — CASE 4S/8I

Advocate General: P. VerLoren van Themaat Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

I — Facts a n d p r o c e d u r e possibility which is open to it of having export refunds fixed in advance.

The applicant, Moksel, is one of the For this reason, on Friday 12 December largest exporters of beef and veal in the 1980, it submitted to the Bundesanstalt Community. Since it generally makes für landwirtschaftliche Marktordnung large export contracts providing for a [Federal Office for the Organization time for delivery of three to four months of Agricultural Markets] (hereinafter on average, it regularly avails itself of the referred to as the "Federal Office"), the

federal intervention agency, several As the reason for its decision, the applications for advance fixing of export Federal Office referred to the measures refunds on beef and veal. For such taken by the Commission in Regulation applications to be considered, the person No 3318/80 and also contained in the concerned must also give security in telex message which was sent to it by the favour of the Federal Office not later Commission on 19 December 1980 to than 1 p.m. on the day on which the inform it of the adoption of the regu- application for a certificate is lodged. lation and which states in the paragraph marked "N.B." that "These applications (which would have been accepted on 20 Since there was a delay on the pan of December or later) must be refused and the bank which was to notify the Federal the securities lodged must be released". Office of the applicant's security, the security did not reach the Federal Office until after 1 p.m. on Friday 12 December These are the two acts of the 1980. Although Article 5 (2) of Regu- Commission which the applicant asks the lation No 193/75, replaced by Regu- Coun to annul, on the grounds first that lation No 3183/80 (Official Journal L the telex message constitutes "a 338, p. 1) authorized the Federal Office decision" inasmuch as it is capable of to refuse the application, the Federal producing legal effects and is of direct Office did not do so but was obliged to and individual concern to the applicant, consider the application as having been and secondly that, even if the only lodged on the first working day purpose' of the telex message was to following the day on which it was interpret Regulation No 3318/80, the received, in this case on Monday 15 action is nevertheless admissible because December 1980. the regulation in fact constitutes "a decision" of direct and individual concern to the applicant. In these circumstances, the export licences corresponding to applications for advance fixing certificates lodged on By an application lodged at the Coun 15 December 1980 could not be issued Registry on 23 February 1981, the until 20 December 1980, that is to say, applicant brought this action under the fifth working day following the day Article 173 of the EEC Treaty seeking a on which the applications were lodged, declaration that either Regulation No in accordance with Article 2 (1) of 3318/80 or the telex message which the Commission Regulation No 2378/80 of Commission sent to the Federal Office, 4 September 1980 (Official Journal or both, are void. L 241, p. 19) provided that no "special measures" had been taken during that period. By a telex message dated 26 June 1981, received at the Coun Registry on the same day, TIAC applied to be allowed to Such measures were however taken on intervene in the case in support of the 19 December 1980 by Commission Regu- applicant. Such intervention was allowed lation No 3318/80 of 19 December 1980 by order of 30 September 1981. (Official Journal L 345, p. 20) temporarily suspending the advance fixing of expon refunds for beef meat On hearing the report of the Judge- products, and the Federal Office refused Rapporteur and the views of the Moksel's application in a decision of 23 Advocate General, the Court decided, by December 1980. order of 30 September 1981, to assign

the case to the Third Chamber, pursuant In its observations on the objection of to Article 95 (1) and (2) of the Rules of inadmissibility, the applicant claims that Procedure, and to open the oral the Court should: procedure on the objection of inadmissibility without any preparatory " 1 . Reserve the question of the inquiry. At the same time, it invited the admissibility of the action until the Commission to make written obser­ final judgment and declare in that vations before 5 November 1981 on the judgment that the action is following question: admissible; 2. In the alternative, dismiss the How manv traders were covered by Commission's claim, order the latter Regulation'No 3318/80? to pay the costs and declare that the (a) How many had lodged their action is admissible." application during the period of suspension? The intervener claims that the Court should: (b) How many had lodged their application before the period of " 1 . Declare that the action brought by suspension? Moksel is admissible; 2. Whatever the decision as to Were these traders identifiable? admissibility, order the Commission to pav the costs incurred by Moksel. andŤIAC; II — C o n c l u s i o n s of the parties 3. In any event, refuse to order TIAC In its application, Moksel claims that the to pay the costs incurred by the Commission." Court should: " 1 . Declare void the decision of the defendant contained in Commission Ill — Submissions and argu­ Regulation N o 3318/80 of 19 ments of the parties December 1980 (Official Journal L 345, p. 20) and/or in the defendant's A — Submissions and arguments of the telex message of 19 December 1980 Commission to the Bundesanstalt für landwirt­ schaftliche Marktordnung, Frankfurt As to the facts, the Commission contends am Main, rejecting applications that it was the Federal Office which already lodged for the advance "officially and in the final analysis" took fixing of export refunds for certain the decision on the application lodged by beef products in so far as it concerns the applicant. Indeed it is clear from the applicant, inasmuch as such the Federal Office's decision of 23 applications ought to have been December 1980 that the latter informed accepted on 20 December 1980 at the applicant that it had a right to raise the latest; an objection to the decision within a limited period; this constitutes clear 2. Order the defendant to pay the evidence that it was the Federal Office costs." and not the Commission which took the decision on Moksel's applications. The Commission claims that the Court should "declare that the action is Furthermore, the applicant did clearly inadmissible and order the applicant to avail itself of the opportunity to object to pay the costs". the decision of the Federal Office, since

the letter from the Office dated 30 legal position arising out of the law in January 1981 begins with the words force. Therefore the Commission's telex "Objection to our decision of 23 message is purely informative in nature. December 1980". Thus the applicant has brought an appeal against the decision of the Federal Office in the German courts Finally, the message may be explained by and is at the same time seeking to bring the speed with which the suspension of an action for annulment under Article the advance fixing of export refunds for 173 of the Treaty against the Com- beef and veal was decided in the form of mission for a declaration that the de- Regulation No 3318/80. When a regu- cision is void. lation is to enter into force on the day of its publication in the Official Journal — as it was in this case — the "Commission's officers are accustomed According to the Commission the action to explain the legal position to the auth- is wholly inadmissible, as neither the orities of the Member States in the form telex message in question nor Regulation of a telex message". The purpose of No 3318/80 is capable of constituting a these messages is only to reinstate the decision within the meaning of Article legal position appearing in the provisions 189 of the Treaty. in force. Thus the messages are in no way legislative in character and in the application of the law the Member States 1. The legal nature of the telex message are perfectly free to take account of of 19 December 1980 them or not. Furthermore, in similar cases the Court has not considered telex messages of this kind from officers of the Commission to be decisions within the According to the Commission, this telex meaning of Article 173 of the EEC message cannot constitute a decision of Treaty (see judgment of 17 July 1959 the Commission first because, even if it (Case' 20/58 Phoenix-Rheinrohr [1959] contains a decision, it cannot be imputed ECR 75) and judgment of 27 March to the Commission, for the message "is 1980 (Case 133/79 Sucrimex [1980] ECR clearly a straightforward communication 1299)). by a department of the Commission", in this case, the Directorate-General for Agriculture. 2. The legal nature of Regulation No 3318/80 Secondly, according to the division of powers for the carrying out of the common agricultural policy in this According to the Commission, the regu- sector, the Commission has no power to lation in issue states in Article 1 a address special instructions to the general and abstract legal effect and does Member States, which apply Community not concern a strictly-defined group of law upon their own responsibility. Far people. from exceeding its powers, the Com- mission has merely provided Member States with explanations and not with From the time at which the measure has mandatory instructions, as may be seen been adopted, it is not only the from the fact that the observations have applications received during the period been added in the paragraph marked of suspension which must be refused but "N.B." and that they are designed not to also those lodged earlier on which there give an instruction but to emphasize the has not yet been a decision. This legal

consequence is the result not of Regu- the decision, and the Court emphasized lation N o 3318/80 but of Regulation that the Commission decided directly the N o 2378/80 of 4 September 1980 fate, be it favourable or unfavourable, of on additional special detailed rules each of the tenders submitted, whereas in governing the issue of expon licences in this case the communications of the the beef and veal sector (Official Journal Member States on Mondavs and L 241, p. 19) which, being applicable for Thursdays provide only an approximate an indeterminate period, does not in any statement of the situation, particularly as, way have the character of a decision. between the time of the communication Therefore the regulation is certainly not to the Commission and the adoption of a of individual concern to the applicant. decision by the latter, the authorities of the Member States may receive other applications which will also be affected

It would be absurd to ECR 177) cannot be adopted here for, in recognize Regulation No 3318/80 as that case, the action related to the fixing being a rule of law in certain cases of minimum selling prices by the (future applications) and to consider it as Commission, not the authorities of the a decision in others (applications already Member States. In that case the Member received). The Commission therefore State merely communicated the decision takes the view that the application is of the Commission, whereas in this case clearly inadmissible and repeats that the it is for the authorities of the Member legal rights of the individual are none the States to apply Regulation No 3318/80 less fully protected since the applicant upon their own responsibility. Fur- may challenge the decision of the thermore, in Simmenthal all the tenders Federal Office before the national court received were forwarded to the as it has already done.

MOKSEL v COMMISSION

laying the matter directly before the interpretation based on subjective factors Court, it is endeavouring to obtain a cannot be permitted; whether or not this decision as quickly as possible. This telex message constitutes a decision must consideration does not, however, justify be determined according to objective a derogation from the procedures laid evidence. It is clear from the decision of down in the Treaty or particularly from the Federal Office that this message the division of jurisdiction between the constitutes an instruction. national courts and the Court of Justice. Moreover, in the telex message the Commission also says " . . . and the B — Submissions and arguments of the securities lodged must be released". This applicant sentence provides further evidence of the fact that the message constitutes a decision, since the relevant rules contain The applicant submits that this no provision for the securities, and application is admissible since, in its therefore a decision is required in this view, the Commission's telex message regard. constitutes a decision, and, even if it . were decided that this message was intended merely to explain the legal The fact that the paragraph is marked position arising out of Regulations Nos "N.B." does not necessarily lead to the 3318/80 and 2378/80, the application is conclusion that the sentence in question still admissible on the ground that Regu- does not constitute a decision, since lation No 3318/80 in fact constitutes a whether or not a declaration is a decision decision. depends not on its title or description, but on its contents and wording.

JUDGMENT OF 25. 3. 1982 — CASE 45/81

reasoning in the case of Simmenthal is applications lodged during the period of wholly applicable in this case, since in suspension. Moreover, these applications adopting Regulation N o 3318/80, the are covered by the decision in Calpak Commission took into consideration (judgment of 17 June 1980, Joined Cases Moksel's applications along with all the 789 and 790/79 [1980] ECR 1949). In others and in a telex message to the relation to the applications lodged prior Federal Office gave instructions on all of to the period of suspension however, this the applications including those of regulation constitutes a special measure Moksel; therefore it was that message and therefore has the character of a which directly refused Moksel's decision: in this case, it is, on the application. contrary, the rule laid down in the Inter­ national Fruit case which applies, for the number of traders was known at the time Finally, the applicant answers two when the regulation was adopted, and specific points made by the Commission: no new application could be added. In this case, therefore, the measure (a) Although the telex message came adopted, concerning a restricted and from the Directorate-General for sufficiently identifiable group of traders, Agriculture, it is certain, in Moksel's in fact constitutes a conglomeration of opinion, that powers have been decisions, each of which separately delegated to that Directorate- affects the legal position of an applicant General permitting it to take a and therefore relates to the applicant decision on the matter. individually.

MOKSEL v COMMISSION

The applicant admits that it has lodged (a) Origin of the rules governing the an objection with the Federal Office powers of the Commission in this against the rejection of its application, area but the Federal Office has suspended consideration of this complaint until the Court has determined the matter. According to the intervener, the However, the applicant maintains that Commission obtains its powers from that objection cannot be the basis of an Regulation No 885/68, as amended by

JUDGMENT OF 25. 3. 1982 — CASE 45/81

First, the intervener emphasizes the fact Regulation No 2378/80 on additional that the Commission's assertion that special detailed rules governing the issue what is involved is a decision of the of export licences was designed to enable Federal Office is mistaken, for the the Commission to be better informed, Federal Office merely notified the and the period of five working days applicants of a decision already taken by introduced by that regulation was the Commission. The telex message intended to enable the Commission to leaves no doubt in this respect, since its assess the market situation and to take wording permitted the Federal Office "appropriate measures relating to the no power of personal appraisal of application in question". According to the situation. Furthermore, only the the intervener, this regulation makes Commission, entrusted with assessing the changes in this regard as compared with market situation, was able to take this Regulation No 301/80. Furthermore, decision, since it alone has been Regulation No 2378/80 provides, in expressly authorized to do so; therefore, Article 2 (1), that the licences shall be paragraph 16 of the judgment in the issued "unless special measures have Sucrimex case does not apply here. been taken during that period", according to the intervener, this provision cannot, however, derogate from the express terms of Regulation No /. The legal nature of Regulation No 1504/78. Moreover, the preamble shows 3318/80 that such measures can be taken only in relation to the application in question, with the result that the Commission must In so far as this regulation in fact covers assess the applications one by one and only applications lodged during the will therefore not necessarily decide to period of suspension, Moksel and T1AC reject them all. are not entitled to challenge it, for in this case it is not of direct concern to them. In this instance it is the solution adopted From this analysis, the intervener draws by the Court in the case of Société pour the following conclusions: l'Exportation des Sucres (judgment of

(ii) The second adopted under Regu- (i) If Regulation No 3318/80 does not lation No 2378/80 refusing ap- cover applications lodged prior to plications lodged prior to the period the period of suspension, then the of suspension. message is to be regarded either as a decision refusing the applications or as a non-existent legal measure, not affecting Moksel and TIAC ; This "second regulation" constitutes a decision since it follows from the (ii) On the other hand, if Regulation preamble to Regulation No 2378/80 that No 3318/80 covers these earlier the Commission must determine each applications, the telex message must case individually and also since all of the be regarded as a non-existent legal applications lodged were known to the measure. Commission as they were capable of being identified in the appendix to the repon submitted by the Commission. Therefore it is necessary to examine the message only to the extent to which Regulation No 3318/80 does not concern these earlier applications. In order to show that this regulation in fact constitutes a decision, the intervener develops a line of argument identical to Finally, the intervener takes the view first that of Moksel, but adds a new that the telex message certainly argument to the effect that it is only constitutes an act of the Commission, because the statement of the reasons on even if it came from the Directorate- which Regulation No 3318/80 is based is General for Agriculture, for there is inadequate that the Commission is able certainly some delegation in this special to maintain that it is in fact a regulation, area, and secondly that the Federal whereas a sufficient statement would Office, contrary to the Commission's have revealed that the regulation assertion, was unable to ignore the constitutes, in part at least, a decision message, since as a result of its actual refusing the applications lodged prior to wording, the Federal Office considered the period of suspension. that it contained mandatory instructions.

Decision

1 By an application lodged at the Court Registry on 23 February 1981, an undertaking trading in beef and veal, Alexander Moksel Import-Export GmbH & Co. Handels KG, a company incorporated under German law, supported by TIAC Handelmaatschappij BV, intervener, a company incor- porated under Netherlands law, brought an action under Anicie 173 of the EEC Treaty seeking a declaration that either Regulation N o 3318/80 of 19 December 1980 temporarily suspending the advance fixing of export refunds for beef meat products (Official Journal 1980, L 345, p. 20) in so far as it concerns the applicant, or the telex message which the Commission sent to the Bundesanstalt für landwirtschaftliche Marktordnung [Federal Office

MOKSEL v COMMISSION

for the Organization of Agricultural Markets], (hereinafter referred to as "the Federal Office") on 19 December 1980, or both, are void.

2 In the course of its activities the applicant regularly, with regard to its contracts for the export of beef and veal, avails itself of the opportunity of having expon refunds fixed in advance as provided for by Article 5 (3) and (4) of Regulation N o 885/68 of the Council of 28 June 1968 laying down general rules for granting export refunds on beef and veal and criteria for fixing the amount of such refunds (Official Journal, English Special Edition, 1968 (I), p. 237), as supplemented by Council Regulation N o 1504/76 of 21 June 1976 as regards the general rules for advance fixing of export refunds for beef and veal (Official Journal 1976, L 168, p. 7).

3 Under those provisions, on Friday 12 December 1980 the applicant submitted to the Federal Office applications for advance fixing of export refunds. Owing to a delay in giving notice of the bank's security, the Federal Office, in accordance with Article 14 of Commission Regulation No 3183/80 of 3 December 1980 laying down common detailed rules for the application of the system of import and export licences and advance fixing of certificates for agricultural products (Official Journal 1980, L 338, p. 1), considered the applications as having been lodged on the first working day following the day on which they were received, in this case on Monday 15 December 1980.

8 The applicant, on the other hand, contends that those measures are of direct and individual concern to it.

9 In those circumstances, the Court decided to determine the admissibility of this application for a declaration of nullity without going into the substance of the case.

10 It is therefore appropriate to examine first the legal nature of Regulation No 3318/80 and then that of the Commission's telex message of 19 December 1980.

The legal nature of Regulation No 3318/80

1 1 The Commission considers first that it follows from Regulation No 2378/80 that the regulation in question covers not only applications lodged during the period of suspension but also those lodged earlier on which there had not yet been a decision. Next it submits that the number of traders covered thereby

MOKSEL v COMMISSION

M In view of those different arguments it is necessary to determine whether, having regard to the facts of the case, the contested regulation is of general application or only appears to be so, being in reality only a decision which is of direct and individual concern to the applicant.

15 The sole recital in the preamble to Regulation No 3318/80 justifies the measures suspending the advance fixing of expon refunds for beef meat

JUDGMENT OF 25. 3. 1982 — CASE 45/81

products by the fact that as that market was at that time "characterized by an uncertainty as regards the price", the "current refunds applicable to these products could lead to speculative advance fixing of the refunds".

te A single provision cannot at one and the same time have the character of a measure of general application and of an individual measure.

MOK5EL v COMMISSION

19 Consequently it must be deduced from the purpose of the contested measure, from the framework of the regulations of which it forms part and also trom its very nature that it is indeed a regulation which is of general application; it follows that the objection raised by the Commission must be accepted in so far as it concerns the application that Regulation No 3318/80 should be declared void.

T h e legal n a t u r e of t h e t e l e x m e s s a g e

20 The applicant submits that the telex message of 19 December 1980 constitutes a decision because it is capable of producing legal effects and is ot direct and individual concern to the applicant.

21 The Commission contends that the content of that message from the Direc- torate-General for Agriculture is only informative since, on the one hand, the Commission has no power to address special instructions to the Member States in the sphere in question and, on the other, it is customary in circum- stances such as those in the present case - the entry into force of a regu- lation on the same day as its publication in the Official Journal - for the Commission to explain the legal position to the authorities in the Member States by means of a telex message.

26 Under Article 69 (2) of the Rules of Procedure, the unsuccessful parry is to be ordered to pay the costs; since the applicant has failed in its action, it is necessary to order it to pay the costs except those arising out of the intervention, and to leave the intervener to pay its own costs and those incurred by the Commission as a result of its intervention.

On those grounds,

T H E C O U R T (Third Chamber),

hereby rules:

1. The application is dismissed as inadmissible;

2. The applicant is ordered to pay the costs, except those arising from the intervention;