C-250/81
ECLI:EU:C:1982:344
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JUDGMENT OF THE COURT (FIRST CHAMBER) 7 OCTOBER 1982 '
Greek Canners Association and Others v Commission of the European Communities
(Validity of a Commission regulation)
Case 250/81
Application for a declaration of nullity — Natural or legal persons — Measures of direct and individual concern to them — Criteria (EEC Treaty, Art. 173, second paragraph; Commission Regulation (EEC) No 1962/81)
Regulation (EEC) No 1962/81, which the different forms of packing, is fixes the coefficients to be applied exclusively legislative in nature and, throughout the Community to the although it may affect certain under production aid granted to all producers takings, it is not of direct and individual of tomato concentrates in order to take concern to them within the meaning of account of the dry extract content and Article 173 of the EEC Treaty.
In Case 250/81
GREEK CANNERS ASSOCIATION,
ASTERIS SA,
ADELCAN KANAKARIS BROS, who all have their registered offices in Athens,
represented by Christoforos Argyropoulos and Emmanuel Kaldellis, of the Athens Bar, with an address for service in Luxembourg at the Chambers of André Elvinger, Advocate, 15 Côte d'Eich, applicants,
I — Language of the Case: English.
JUDGMENT OF 7. 10. 1982 — CASE 250/81
V
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Richard Wainwright, acting as Agent, assisted by François Lamoureux, both members of its Legal Department, with an address for service in Luxembourg at the office of Oreste Montako, Jean Monnet Building, Kirchberg,
defendant,
APPLICATION for a declaration that Commission Regulation (EEC) No 1962/81 of 10 July 1981 fixing, inter alia, the coefficients to be applied to production aid for tomato concentrates in the 1981/1982 marketing year (Official Journal 1981, L 192, p. 13) is void,
THE COURT (First Chamber)
composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges,
Advocate General: Sir Gordon Slynn Registrar: P. Heim
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of (EEC) No 516/77 on the common the procedure and the conclusions, organization of the market in products submissions and arguments of the parties processed from fruit and vegetables may be summarized as follows: (Official Journal 1978, L 144, p. 1) introduced a system of production aids applicable, inter alia, to tomato concentrates. Payment of the aid to the I — Facts and procedure processing undertaking is subject to certain conditions, including payment of a minimum price to the producer on a Council Regulation (EEC) No 1152/78 contractual basis. The amount of aid and of 30 May 1978 amending Regulation the minimum price are determined by the
GREEK CANNERS v COMMISSION
Commission, under the management II — Conclusion of the parties committee procedure, for each marketing year (from 1 July to 30 June). The applicants claim that the Court should: The criteria to be applied are set out in Articles 3 (a) and 3 (b) of Regulation No 516/77. As regards Greece, the criteria Declare the application admissible; and applicable in respect of the system of aid provided for by Article 3 (a) of Regu Declare the contested regulation void as lation No 516/77 are laid down in regards Greek tomato concentrates and Article 103 of the Act concerning the apply the law, with the result that it will Conditions of Accession of the Hellenic be necessary to adopt a new regulation Republic [hereinafter referred to as "the in accordance with Article 103 (3) of the Act of Accession"]. Act concerning the Conditions of Accession of the Hellenic Republic and with the other provisions referred to in Commission Regulation (EEC) No the application. 1963/81 of 10 July 1981 (Official Journal 1981, L 192, p. 16) fixes the The defendant contends that the Court minimum price to be paid to producers should: of tomatoes intended for processing as tomato concentrates and the amount of the production aid. There is a difference Dismiss the application as inadmissible; between the amount payable to Greek and producers and that payable to producers from the other Member States. Order the applicants to pay the costs.
Regulation No 1962/81 determines the coefficients to be applied to the amount III — Submissions and argu of aid granted; the coefficients vary ments of the parties according to the dry extract content and the method of packaging. The applicants, a Greek canners' association and two undertakings By an application registered at the Court engaged in the production of tomato on 15 September 1981, the applicants concentrates, seek the annulment of brought this action, under Article 173 of Regulation No 1962/81 on the ground the EEC Treaty, for a declaration that that it is contrary to the provisions of Regulation No 1962/81 is void. By a Article 103 of the Act of Accession in so document dated 16 October 1981, the Commission raised an objection of far as it does not compare processing inadmissibility pursuant to Article 91 of costs in the case of small packings the Court's Rules of Procedure. weighing less than 5 kg. As regards the table of coefficients (percentages) which makes it possible to determine the Upon hearing the report of the Judge- amount of aid granted to Greece for Rapporteur and the views of the different packings, the regulation should Advocate General, the Court decided to be based not only on a comparison of open the oral procedure on the objection the processing costs for packings of 5 kg of inadmissibility without any prepara in Greece and in the other Member tory inquiry and, pursuant to Article 95 States but also on a comparison of the (1) and (2) of the Rules of Procedure, to processing costs for different kinds of assign the case to the First Chamber. packings.
JUDGMENT OF 7. 10. 1982 — CASE 250/81
The Commission, by means of a separate by Regulation No 1962/81, which, document, raises an objection of moreover, were calculated by reference inadmissibility. to objective criteria relating to "dry extract content" and "immediate packing". Article 173 of the EEC-Treaty auth orizes the Council, the Commission and the Member States to contest the validity Those considerations support the view of acts of the Council and the that Regulation No 1962/81 is in fact Commission before the Court, but it legislative in nature, that the rules which permits individuals to challenge only it contains are expressed in general decisions which are addressed to them. terms, that they apply to anyone engaged An individual may however challenge in the manufacture of tomato con any decision which, although in the form centrates and that their content was not of a regulation, is of direct and determined by subjective considerations. individual concern to him. Accordingly, the applicants must establish: first, that the contested measure in fact constitutes a decision; secondly, that is concerns them directly and, thirdly, that it Direct and individual concern concerns them individually. Each of those conditions must be satisfied in order for the application to be held The Commission does not dispute that admissible. According to the Regulation No 1962/81 is of direct Commission, the measure in question is, concern to the applicants, with the in substance, a regulation within the exception of the first applicant, the meaning of Article 189 of the Treaty; it Greek Canners Association, in so far as enacts rules of general application and is the coefficients fixed by that regulation not of "individual concern" to the leave no margin of discretion to the applicants. national authorities. However, it disagrees with the contention that the regulation is of individual concern to the applicants. Rules of general application
Regulation No 1962/81 sets out the The regulation concerns all processing coefficients for calculating the amount of undertakings in the Community engaged aid payable for a given quantity of in the production of tomato con tomato concentrate on the basis of its centrates, without any restriction or quality and its packaging. The limitation. That argument is strengthened coefficients are fixed for all producers by the consideration that the regulation of tomato concentrates, without any concerns not only processors in business distinction. The fact that it is possible to at the time of its adoption but also any determine the number of such producers processor who subsequently starts up in does not in itself prevent the measure business during the 1981/1982 marketing fixing the coefficient from being in the year and who fulfils the conditions laid nature of a regulation. The Commission down in order to qualify for the aid. possessed no information on the identity Accordingly, the applicants cannot claim of individual firms; hence it was unable to be "directly and personally" to appreciate the possible effect on a concerned by the regulation within the particular firm of the coefficients fixed meaning of Article 173 of the Treaty.
GREEK CANNERS v COMMISSION
The first applicant's capacity to bring Kanakaris Bros, both of which are proceedings undertakings engaged in the production of tomato concentrates, produced such The first applicant, the Greek Canners concentrates in packings weighing less Association, is a trade association which, than five kg and are entitled to receive a as specified in the application, has as its specific production aid; however, the purpose to protect the interests of Greek regulation has deprived them of that canners. right. Accordingly, those undertakings are being treated unfairly and inequitably The Commission observes that under by comparison with undertakings from Article 173 a trade association is entitled the other nine Member States of the to institute proceedings for annulment Community and are faced with unfair only in order to defend its own interests competition which is ruining them. as an association but not to defend the individual or collective interests of its members (judgment of 18 March 1975 in Case 72/74 Union Syndicale v Council IV — Oral procedure [1975] ECR 401).
In their observations on the Com Oral argument was presented by the mission's objection of inadmissibility, the parties at the sitting on 1 July 1982. applicants contend that the regulation at issue is of direct and individual concern The Advocate General delivered his to them. Asteris SA and Adelcan opinion at the sitting on 15 July 1982.
Decision
1 By an application lodged at the Court Registry on 15 September 1981, the Greek Canners Association, together with Asteris SA and Adelcan Kanakaris Bros, undertakings engaged in the production of tomato concentrates, brought an action under Article 173 of the EEC Treaty for a declaration that Commission Regulation (EEC) No 1962/81 of 10 July 1981, fixing inter alia the coefficients to be applied to production aid for tomato concentrates in the 1981/1982 marketing year (Official Journal 1981, L 192, p. 13), is void in so far as it relates to tomato concentrates produced in Greece.
2 The applicants contend that the contested regulation is contrary to the provisions of Article 103 (3) of the Act concerning the Conditions of Accession of the Hellenic Republic [hereinafter referred to as "the Act of Accession"] in so far as it takes insufficient account of the processing costs for different kinds of packings used in Greece.
JUDGMENT OF 7. 10. 1982 — CASE 250/81
3 By a document dated 16 October 1981, the Commission of the European Communities raised an objection of inadmissibility under Article 91 of the Rules of Procedure of the Court of Justice.
4 According to the Commission, Regulation No 1962/81 is legislative in nature, the rules which it contains are expressed in general terms, they apply to anyone engaged in the manufacture of tomato concentrates and their content was determined not by subjective considerations but by reference to objective criteria relating to "dry extract content" and "immediate packing".
5 It follows that the provisions in question constitute a regulation, within the meaning of Article 189 of the EEC Treaty, containing rules of general application and concerning all producers of tomato concentrates in the Community; it is not a decision which, although in the form of a regulation, is of direct and individual concern to the applicants. Therefore, the applicants may not seek to have it declared void under Article 173 of the EEC Treaty.
6 The applicants maintain that the regulation in question is of direct and individual concern to them since both Asteris SA and Adelcan Kanakaris Bros are undertakings engaged in the production of tomato concentrates and have produced tomato concentrates in packings weighing less than 5 kg.
7 It must be remembered that Council Regulation (EEC) No 516/77 of 14 March 1977 (Official Journal 1977, L 73, p. 1), as most recently amended by Council Regulation (EEC) No 1118/81 of 28 April 1981 (Official Journal 1981, L 118, p. 10), established a system of production aid for tomato concentrates and provided that the amount of aid is to be determined by taking into account the minimum price payable to tomato producers and the processing costs and that the price payable to producers and the amount of aid are to be fixed by the Commission for each marketing year.
8 As regards Greece, Article 103 of the Act of Accession provides that the minimum price payable is to be established on the basis of prices paid in Greece to producers for a product for processing, recorded over a represen tative period to be determined. The amount of aid granted in Greece is to be determined by taking into account the minimum price fixed for Greece and the processing costs obtaining in Greece.
GREEK CANNERS v COMMISSION
9 Commission Regulation (EEC) No 1963/81 of 10 July 1981 (Official Journal 1981, L 192, p. 16) fixes the minimum price to be paid to producers per 100 kg net weight of tomatoes for the Member States other than Greece, on the one hand, and for Greece, on the other. The same regulation fixes the amount of aid for tomato concentrates in an immediate packing of 1 · 5 kg or more and maintains the differentiation between Greece and the other Member States.
10 Regulation (EEC) No 1962/81, which the applicants seek to have declared void, fixes the coefficients to be applied to the production aid in order to take account of the dry extract content and the method of packing. The coefficients are the same for Greece and for the other Member States.
11 Accordingly, it is clear that the contested measure is a regulation which fixes the coefficients to be applied throughout the Community to all producers of tomato concentrates in order to take account of the dry extract content and the different forms of packing. Such a regulation is exclusively legislative in nature and, although it may affect the applicants, it is not of direct and individual concern to them within the meaning of Article 173 of the EEC Treaty. The application for a declaration that the regulation is void is therefore inadmissible.
Costs
12 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs.
On those grounds,
THE COURT (First Chamber)
hereby:
1. Dismisses the application as inadmissible;
OPINION OF SIR GORDON SLYNN — CASE 250/81
2. Orders the applicants to pay the whole of the costs.
O'Keeffe Bosco Koopmans
Delivered in open court in Luxembourg on 7 October 1982.
For the Registrar
H. A. Rühl A. O'Keeffe Principal Administrator President of the First Chamber
OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN DELIVERED ON 15 JULY 1982
My Lords, A system of production aid for tomato concentrate, among other products, is established by Articles 2 (a), 3 (a), 3 (b) The applicants are an association of and 3 (c) of Council Regulation No Greek canners and two Greek companies 516/77 of 14 March 1977 (OJ 1977, L engaged in the manufacture of tomato 73, p. 1) as amended by Council Regu concentrate. They ask the Court to annul lation No 1152/78 of 30 May 1978 (OJ Commission Regulation No 1962/81 of 1978, L 144, p. 1). The system is 10 July 1981 (OJ 1981, L 192, p. 11) in concerned with contracts under which a so far as it fixes for the 1981-1982 processor engages with the producer for marketing year the coefficients to be the purchase of specified quantities of applied in Greece to production aid for tomatoes, over a specified period at an tomato concentrate. The Commission agreed price. For deliveries made under raises a preliminary objection to the such contracts a "minimum price", admissibility of the application and it is which processors must pay to producers, with that objection alone that the Court calculated as laid down in paragraph 3 is concerned at this stage. of Article 3 (a), is fixed before the