C-97/85

Mr President, 4. An operation to promote the sale of Members of the Court, butter was to be carried out on the West Berlin market from 15 April until the end of June 1985. To that end, the intervention A — Facts agency of the Federal Republic of Germany had made available for distribution free of 1. The case in which I am to give my charge 900 tonnes of butter from public Opinion today is concerned with an intervention stocks. That butter was application requesting the Court to declare intended exclusively for direct consumption void the Commision's decision (COM(85) and was packed in packets with a net weight 276 final) of 25 February 1985 on measures of 250 grams and labelled 'free EEC butter'. for the promotion of sales of butter on the West Berlin market, which, according to the applicants (four German margarine manu­ facturers), adversely affects their position on 5. The intervention butter was to be the market. marketed in a single package containing, in addition, a packet of fresh butter of the same net weight. The price for both packets 2. Since I have already described the sold together was not to exceed the normal Community market for milk and milk price for 250 grams of fresh butter products and the common organization of applicable during the marketing period. the market on which the former is based 1 in my Opinion on the action for damages brought by the margarine manufacturers against the Christmas butter operation 6. The operation was to be promoted by a 2 1984/85, I no longer need consider that marketing campaign and by market research problem here. It is sufficient to state that the to determine marginal costs and to assess market in milk and milk products has for a the effectiveness of the operation. number of years been characterized by surplus production and that public stocks of butter in 1984 stood at approximately one million tonnes. 7. The cost of carrying out the operation amounted to approximately 4 million ECU. 3. Those are the circumstances in which the Commission of the European Communities, the defendant in these proceedings, 8. The Commission's decision was based on addressed the contested decision to the Council Regulation (EEC) No 1079/77 of Federal Republic of Germany on 25 17 May 1977 on a co-responsibility levy and February 1985. The contents of that on measures for expanding the markets in decision were essentially as follows. 3 milk and milk products. According to Article 4 of that regulation, measures to * Translated from the German. 1 — Regulation (EEC) No 804/68 of the Council of 27 June expand the markets for milk and milk 1968 on the common organization of the market in milk products are to be taken concerning: and milk products (OJ English Special Edition 1968 (I), p. 176). 2 — Joined Cases 279, 280, 285 and 286/84 and 27 and 265/85. 3 — OJ 1977, L 131, p. 6.

11. The four applicants in these 13. After the Verwaltungsgericht had issued proceedings, which between them are the interlocutory order, the applicants responsible for approximately two-thirds of brought an action before that court. It was sales of margarine in West Berlin, attempted in those proceedings that the Verwaltungs­ initially to have the implementation of the gericht referred a number of questions to Commission's measure restrained by the the Court of Justice for a preliminary ruling German courts. In March 1985 they applied (Joined Cases 133 to 136/85; see p. 2289). to the Verwaltungsgericht (Administrative Court) Frankfurt am Main for an injunction. By order of 20 March 1985, that 14. On 16 April 1985 the applicants court instructed the Bundesanstalt für land­ brought this action for annulment before the wirtschaftliche Marktordnung (Federal Court, and simultaneously applied to the Office for the Organization of Agricultural Court for an order suspending the operation Markets, hereinafter referred to as 'the of the contested decision (Case 97/85 R Federal Office') not to implement the [1985] ECR 1331). That application was contested measures. dismissed by Order of .the President of the Court of 3 May 1985 on the ground that the applicants were not liable to incur 12. The Federal Office appealed to the serious damage and that suspension of the Hessischer Verwaltungsgerichtshof (Higher measure would cause the Commission Administrative Court, Hessen) which damage comparable to that allegedly quashed that order by decision of 11 April suffered by the applicants. Moreover, in his 1985. As grounds for its decision, the order the President of the Court expressed Verwaltungsgerichtshof stated that the serious doubts as to whether the main Commission had itself laid down all the application was admissible.

22. To declare the application inadmissible 17. The defendant contends that the Court would in no way deprive the applicants of should: legal protection. In the first place, the applicants have been partially successful in the action before the Verwaltungsgericht, 1. Dismiss the application as inadmissible; since that court has submitted a number of questions to the Court of Justice for a preliminary ruling on the validity of the 2. In the alternative, dismiss the application contested decision. Had the applicants, like as unfounded; other margarine manufacturers, brought actions in the civil courts, it would have been possible to refer questions to the Court 3. Order the applicants to pay the costs. of Justice concerning the relationship between the contested decision and the German rules on unfair competition. 18. I will consider the submissions of the Furthermore, the applicants may also bring parties in detail below in so far as is an action for damages against the defendant necessary for the purposes of the action. under Article 178 and the second paragraph of Article 215 of the EEC Treaty.

B — Opinion 23. Finally, the defendant points out that the contested decision will in all likelihood 19. (a) The defendant considers that the have been implemented by the time the application for annulment is inadmissible. Court gives judgment in these proceedings.

DEUTSCHE LEBENSMITTELWERKE v COMMISSION

25. In their view, since butter and of the application. margarine may be substituted for one another, any measure promoting sales of butter is necessarily detrimental to sales of 30. (b) Since the Commission's decision of margarine. As the decision itself lays down 25 February 1985 was addressed exclusively all the detailed rules for implementing the to the Federal Republic of Germany and not measures concerned, it injures the applicants to the applicants, the admissibility of the directly. application must depend on the second paragraph of Article 173 of the EEC Treaty. It follows from that provision that a decision addressed to another person must

4 27. If this application were to be declared are of direct concern to the applicants. inadmissible, the applicants would to some extent be deprived of effective legal protection. In that regard, they point out 32. Even though it must be acknowledged that their application for an injunction in that the proposed measure for the the administrative courts was unsuccessful. promotion of sales of butter was set out in The proceedings instituted by other detail in the Commission's decision of 25 margarine manufacturers in the Landgericht February 1985, with the result that the (Regional Court) Frankfurt am Main and in German intervention agency was left with the Oberlandesgericht (Higher Regional scarcely any room for manoeuvre, the Court) Frankfurt am Main for the adoption decision itself cannot be said to have had an of interim measures were also unsuccessful, adverse effect on the applicants' rights. since those courts relied on the primacy of Community law in dismissing the 4 — See the judgment of 10 December 1969 in Joined Cases 10 and 18/68 Eridamn and Others v Commission [19691 ECR applications. 459.

37. The applicants have not established the existence of such circumstances. They maintain, admittedly, that the West Berlin 34. Accordingly, it was necessary first of all market is supplied with margarine largely by to find suitable undertakings which were them. However, that is a commercial prepared to carry out the operation on the activity which the applicants carry on in terms set out in the decision. Since neither competition with many other margarine the Commission nor the Federal Republic of manufacturers and importers within the Germany could oblige individual traders to Community and outside it. Even if the cooperate in the disposal of the butter, it applicants hold a substantial share of the was not absolutely certain from a legal point margarine market in West Berlin, it does of view, at any rate at the time of the not follow that the market is wholly and adoption of the decision, that the operation exclusively controlled by them. On the would in fact be carried out. At least a contrary, the Berlin market is open to all voluntary decision on the part of the traders margarine manufacturers in the Community, concerned to cooperate in the disposal of that is to say, to an indeterminate number the butter was still required as a of undertakings. Evenon the assumption complement to the Commission's decision. that at the time when the Commission The traders had first to be willing to adopted its decision the most important conclude contracts to that effect with the margarine manufacturers and dealers who Federal Office. Lastly, consumers had to be supplied the Berlin market were known, willing to purchase the butter. they constituted an open and not a closed circle of traders. The Commission's contested decision of 25 February 1985 affected not merely a circle of traders that was fixed at the time of its adoption and could no longer be widened, but all under­ 35. Since, therefore, other independent takings operating on the Berlin margarine factors, namely the voluntary decisions of market before and during the implemen­ individual third parties were needed in tation of the measure for the promotion of addition to the Commission's decision, it is sales of butter. impossible to accept the view that the decision itself was of direct concern to the applicants. 38. In my view, the applicants' reference to the Court's judgment of 1 July 1965 in Joined Cases 106 and 107/63 6is miscon­ ceived.

39. In that case, the contested decision, 44. The question which now arises is which was addressed to the Federal whether, having regard to the general Republic of Germany, concerned the context in which the present application for treatment of requests for import licences annulment is set, there are grounds for miti and, on account of the specific circum gating the admittedly very strict criteria of stances of the case, could apply only to admissibility developed by the Court with requests submitted three days prior to the regard to an application based on the adoption of the decision. Since the circle of second paragraph of Article 173 of the EEC the importers concerned was known, the Treaty. In particular, it is necessary to importers were, as the Court stated, consider the applicants' submission to the differentiated from all other persons and effect that they have still not been able to distinguished individually just as in the case obtain effective legal protection in the of the person addressed. national courts against the measure for the promotion of sales of butter, which was implemented on the basis of the

41. Even if the applicants had been the sole margarine manufacturers or traders supplying the Berlin market, they would still not be individually distinguished just as in 46. The history of the proceedings shows, the case of the addressee of the decision, however, that the applicants were not which was the Federal Republic of denied effective legal protection under Germany. national law. The national courts are quite willing to grant legal protection, as is clear from the references for a preliminary ruling 42.

43. Accordingly, the contested decision those with administrative jurisdiction has concerned the applicants merely by virtue of not yet been resolved. Nor does the finding their objective capacity as margarine manu of the Hessische Verwaltungsgerichtshof to facturers just as any other trader 'who is, or the effect that the contested measure may might be in the future, in the same not be challenged in administrative situation'. 7 proceedings necessarily have to be regarded as conclusive since that finding was made in 7 — Judgment of 14 July 1983 in Case 231/82 Spijker Kwasten summary proceedings for the adoption of an BV vCommission [1983] ECR 2559. interim measure. On the other hand, it may

be inferred from the decisions of the 49. That view is contrary to the findings Landgericht Frankfurt and the Oberlandes­ made by the Court in its judgment of 24 gericht Frankfurt that, in their view, it is June 1986 in Case 53/85, in which it possible at least to bring an action in the rejected that very argument. The. annulment civil courts. of a decision which has already been implemented is in itself capable of having 47. It must be stated, moreover, that an legal consequences, in particular by action for annulment is not the only means preventing a repetition by the Commission of redress available under Community law. of the practice complained of. The applicants may, if they have suffered damage as a result of the implementation of 50. Accordingly, the implementation of the the contested measure, bring an action for measure for the promotion of sales of butter damages pursuant to Article 178 and the is not itself a ground for declaring the second paragraph of Article 215 of the EEC application inadmissible. Treaty. In such proceedings it would be necessary to determine, in particular, Substance whether the criteria laid down by the Court 51. As I intend to suggest that the Court for establishing non-contractual liability in dismiss the application as inadmissible, it the case of unlawful economic measures would be appropriate to consider in the apply even where a Community institution alternative the applicants' individual has adopted a purely administrative measure submissions on the substance of the case. in the form of a decision. However, I do not intend to do so in view of the special nature of the case as a whole, 48. Finally, on the question of admissibility, to which, as I said earlier, further it is also necessary to consider the proceedings for a preliminary ruling must be defendant's objection to the effect that the added. In my Opinion on the references for applicants no longer have an interest in a preliminary ruling submitted in Joined seeking legal protection by way of an action Cases 133 to 136 and 249/85, I shall, for annulment because the contested however, consider all the parties' decision has in the meantime been submissions, including those relating to the implemented. substance of the application in Case 97/85.