C-26/86
ECLI:EU:C:1986:478
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DEUTZ UND GELDERMANN v COUNCIL
OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 10 December 1986 *
Mr President, to objectively determined situations and Members of the Court, entail legal effects for categories of persons regarded generally and in the abstract'. According to previous decisions of the Court, 1 'the second paragraph of Article In raising this objection of inadmissibility 173 of the Treaty makes the admissibility of the Council — whose conclusions are proceedings instituted by an individual for a supported by the Commission, which has declaration that a measure is void dependent intervened in these proceedings — asks the on fulfilment of the condition that the Court to declare, in application of those contested measure, although in the form of principles, that Article 6 (5) of Council a regulation, in fact constitutes a decision Regulation (EEC) No 3309/85 of 18 which is of direct and individual concern to November 1985, laying down general rules him. The objective of that provision is in for the description and presentation of particular to prevent the Community sparkling wines and aerated sparkling institutions, merely by choosing the form of wines, 2is of just such general application, a regulation, from being able to exclude an so that the German undertaking Deutz und application by an individual against a Geldermann, a producer and merchant of decision of direct and individual concern to sparkling wines, cannot be regarded as him and thus to make clear that the choice being individually concerned by that of form may not alter the nature of a provision. measure.
It should be observed first of all that Article Nevertheless an action brought by an indi 6 (5) contains two distinct provisions, vidual is not admissible in so far as it is namely a general rule and a temporary directed against a regulation having general derogation. application within the meaning of the second paragraph of Article 189 of the Treaty, the test for distinguishing between a The general rule, contained in the first and regulation and a decision, according to the second subparagraphs, consists in a settled case-law of the Court, being whether prohibition on the use, for the purposes of or not the measure in question has general describing a quality sparkling wine, of any application. It is therefore necessary to reference to a method of production appraise the nature of the contested containing a geographical name if the measures and in particular the legal effects product in question may not be given the which they are intended to produce or in designation of origin concerned. fact produce.' That rule constitutes without doubt a provision having general application as According to the same decision, measures defined by the Court in the judgment I have are of general application where they 'apply cited.
* Translated from the French. 1 — See in particular the judgment of 29 January 1985 in Case As the Council points out in its written 147/83 Münchener Import-Weinkellerei Herold Bindern GmbH v Commutimi [1985] ECR 257 and the judgment of observations, that prohibition of indeter- 6 October 1982 in Case 307/81 Alusuisse Italia SpA v Council and Commission [ 1982] ECR 3463 2 — Official Journal 1985, L 320, p. 9.
OPINION OF MR MISCHO —CASE 26/86
minate duration is applicable to all any implementing measures on the part of producers and 'merchants of sparkling the Community administration or the wines, present and future, whether they national administrations and leaves them no market sparkling wines produced in the margin of discretion. Community or imported sparkling wines. That general and abstract rule is therefore applicable to an indeterminate category of The issue therefore boils down to the persons and concerns the applicant only as a question whether the third subparagraph of present sparkling-wine merchant. That Article 6 (5), although contained in a regu character, however, may be acquired by any lation, may be considered to be an indi other person wishing to engage in that vidual decision or a bundle of individual business. Therefore the prohibition certainly decisions because it is based on the criterion does not concern a closed and limited group of 'traditional usage' and therefore seems of affected traders which may not alter in capable of affecting only a limited number the future'. of traders whose identity is ascertainable.
Yet the action brought by Deutz und 1. The Council relies on an extremely Geldermann is not in fact directed against broad interpretation of the concept of the general prohibition contained in the first 'traditional usage' which would preclude and second subparagraphs. The applicant Deutz und Geldermann from being indi asks the Court to 'declare that Council vidually concerned. Regulation No 3309/85 is void in so far as Article 6 (5) provides that reference to the In the Council's view, that condition does method of production known as "méthode not apply individually to each producer or champenoise" may be used, if such a usage merchant but to a specific country or a was traditional, only for eight more wine specific region. Therefore not only growing years'. producers and merchants who traditionally used that reference may continue to do so The essential aim of the action is therefore for a further eight years; any producer or to secure the removal of the words 'for merchant, present or future, established in a eight wine-growing years' from the third Member State or region in which that subparagraph of Article 6 (5). reference is traditional could engage for the first time in the production of sparkling wines using the 'méthode champenoise' at That being so, it must be examined whether any time in the transitional period. the transitional provision in question is of direct and individual concern to the The group of traders concerned is therefore applicant. by no means fixed.
It should be said at once that the provision in question is undeniably of direct concern However, the broad interpretation to the applicant as a user of the 'méthode suggested by the Council does not appear champenoise'. convincing to me.
The provision in question is in fact Transitional provisions usually have the contained in a regulation which is by defi purpose of enabling traders who, at the time nition directly applicable, does not require of the adoption of new rules, have actually
DEUTZ UND GELDERMANN v COUNCIL
benefited from a particular régime to adjust 3. However that may be, the decisive gradually to the new system. argument in this case is the following.
I am unable to find anything in either the wording of Council Regulation No 3309/85 It is clear from a line of consistent decisions or its preamble which might show that that of the Court that even if the view were is not the case here. taken that the derogation applies only to sparkling-wine producers established in the Community who have traditionally used the 'méthode champenoise' prior to the entry 2. The applicant maintains that in reality into force of the regulation, Deutz und the transitional measure concerns only Geldermann cannot be regarded as being present producers of sparkling wines and individually concerned. not traders because it relates to the tradi tional use of a method of production which only producers may have used. The Court has held on several occasions that 'a measure does not cease to be a regu A trader may use the words 'méthode cham lation because it is possible to determine the penoise' on the bottles he sells only if the number or even the identity of the persons producer gives him an assurance that the to whom it applies at any given time as long sparkling wine was produced according to as it is established that such application that method. takes effect by virtue of an objective legal or factual situation defined by the measure in relation to its purpose'. 3At all events, it That reasoning is certainly not without its seems to me that that is the position in this merits. case because the temporary derogation created by the third subparagraph applies to the persons concerned by reason only of their objective status as sparkling-wine producers It is none the less true that the third and not 'because of a factual situation subparagraph of Article 6 (5) provides that which differentiates them from all other 'reference to the method of production persons and distinguishes them individually known as "méthode champenoise" may, if 4 just as in the case of the person addressed'. such a usage were traditional, be used .... for eight wine-growing years ... '.
Thus the Court has held that, even if an It follows that all merchants satisfying the applicant is in fact the only importer of a prescribed condition, and in particular particular product, it is nevertheless not importers who have traditionally sold individually concerned by a decision relating sparkling wines produced in non-member to that activity which is addressed to a countries according to the 'méthode cham Member State provided that that measure penoise', will be able to continue to refer to concerns the applicant merely by virtue of that method. its objective capacity as an importer of the goods in question in the same manner as 3 See — the judgment in Alusuisse v Council and Commission, It cannot therefore be easy to identify all cited above, at paragraph 11 of the decision. the traders who might rely on the dero 4 — Judgment of 18 November 1975 in Case 100/74 Soditi gation. C. A. M. SA v Commission [1975] ECR 1393, paragraph 19 at p. 1403.
OPINION OF MR MISCHO — CASE 26/86
any other trader who is, or might be in the such as requesting an import or export 5 6 future, in the same situation. licence or advance fixing which only certain members of that category had In those cases in which the Court has carried out. accepted the admissibility of an action brought by an individual against a regu lation, the persons to whom the regulation In other cases the natural or legal persons 7 applied were known individually, not concerned were in fact named addressees because they belonged to a particular or could be identified indirectly in the legal category which was more or less defined, measures of the Commission or the Council but because they had actually carried out and had been particularly concerned by the before a given date a quite specific formality preparatory investigations. 8
In view of all the foregoing considerations, the third subparagraph of Article 6 (5) of Council Regulation No 3309/85 must therefore be regarded as a legislative provision of general application within the meaning of the second paragraph of Article 189 of the EEC Treaty and not as a decision of individual concern to the applicant.
Consequently, I can only propose that the Court should dismiss this application as inadmissible and order the applicant to pay the costs.
5 — Judgment of 14 July 1983 in Case 231/82 Spijker Kwasten 6 — Judgment of 13 May 1971 in Joined Cases 41 to 44/70 BV v Commission [1983] ECR 2559, paragraphs 8 to 10 at International Fruit Company NV and Others v Commission [1971] ECR 411, paragraphs 16 to 21; judgment in Société p. 2566. C A. M. SA v Commission cited above, paragraphs 14 to 19; judgment of 31 March 1977 in Case 88/76 Société pour l'exportation des sucres v Commission [1977] ECR 709, paragraphs 9 to 11; judgment of 3 May 1978 in Case 112/77 August Topfer & Co. GmbH v Commission [1978] ECR 1019, paragraph 9; judgments of 27 November 1984 in Case 232/81 Agricola Commerciale Olio Srl and Others v Commission [1984] ECR 3881, and Case 264/81 SpA Savma v Commission [1984] ECR 3915, paragraph 11. 7 — Judgments of 29 March 1979 in Case 113/77 NTN Toyo Bearing Company Ltd and Others v Council [1979] ECR 1185, paragraph 11; Case 119/77, Nippon Seiko KK and Others v Council and Commission [1979] ECR 1303, paragraph 14; Case 120/77, Koyo Seiko Co. Ltd and Others v Council and Commission [1979] ECR 1337, paragraph 23; Case 121/77 Nachi Fujitoshi Corporation and Others v Council [1979] ECR 1363, paragraph 11; judgments of 29 October 1980 in Case 138/79 Roquette frères SA v Council [1980] ECR 3333 and Case 139/79 Maizena GmbH v Council [1980] ECR 3393, paragraphs 14 to 16. 8 — That may be the case in particular with regulations imposing ami-dumping duties: see the judgment of 29 March 1979 in Case 118/77 Import Standard Office (ISO) v Council [1979] ECR 1277, paragraphs 19 to 22; the judgment in Nippon Seiko, cited above, paragraph 13, in Koyo Seiko, cited above, paragraphs 18 to 21 and in Nachi FujUtosbi, cited above, paragraphs 8 and 9; the judgment of 21 February 1984 in Joined Cases 239 and 275/82 Allied Corporation v Commission [1984] ECR 1005, paragraphs 10 to 12; the judgment of 20 March 1985 in Case 264/82 Timex Corporation v Council and Commission [1985] ECR 849, paragraphs 11 to 15; and the judgment of 23 May 1985 in Case 53/83 Allied Corporation v Council [1985] ECR 1621, paragraph 4.