C-31/86
ECLI:EU:C:1987:516
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LAISA v COUNCIL
OPINION OF MR ADVOCATE GENERAL LENZ delivered o n 1 D e c e m b e r 1 9 8 7 *
no act has been adopted which may be chal- Mr President, lenged under Article 173 of the EEC Members of the Court, Treaty. It is argued on their behalf that the contested legal provisions were not adopted by a Community institution but by all of the previous Member States and the new A — Facts acceding Member States. Since they form part of an annex to an act of accession, which is a treaty governed by international law, they constitute provisions of primary 1. The two joined cases on which I deliver law and not of secondary law. my Opinion today concern first of all the question whether the Court of Justice of the European Communities has jurisdiction to entertain actions directed against Council 4. Furthermore, it is argued that the regulations in the form they have assumed contested legal provisions are legislative under the Act concerning the conditions of provisions and not individual decisions of accession of the Kingdom of Spain and the direct and individual concern to the Portuguese Republic and the adjustments to applicants. the Treaties.
2. The two applicants and the intervener 5. The Council has therefore requested the supporting them are at present the only Court to rule on the admissibility of the producers of isoglucose in Spain. They applications as a preliminary issue and to believe that they are discriminated against dismiss them as inadmissible. compared with the other producers of isoglucose in the Community as well as with Spanish sugar producers. The purpose of their action is therefore primarily to have 6. The applicants accordingly request the declared void those provisions on the basis Court to dismiss the objection of inadmissi- of which their production quotas were bility raised by the defendant and to declare determined and to obtain fair quotas; in the the applications admissible. alternative, they claim compensation for the damage which they have allegedly suffered.
7. In their view, it follows from Article 8 of 3. The Council of the European the Act of Accession that the provisions of Communities, which is the defendant, the the common organization of the markets in Commission, and the Association of Spanish sugar amended by the Act of Accession have Sugar Producers, which have intervened in remained provisions of secondary law which support of the Council, take the view that are subject inter alia to the normal rules
* Translated from the German.
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regarding judicial review. Those provisions then the question whether the aforesaid must be regarded as containing individual provision from Annex I may be attributed to decisions concerning them since the three one of the institutions for the purposes of Spanish producers of isoglucose formed a Article 173 of the EEC Treaty and finally, numerically fixed group of traders. on the question of the substance, whether the contested provision, namely Article 24 of Regulation No 1785/81 ' as amended by 8. Since the Act of Accession, in particular Article 26 of the Act of Accession 2 in its provisions concerning the amendment of conjunction with Section XIV (c) No 2 of secondary law, must be regarded as an act the annex thereto, actually constitutes an of the Council, the action for damages individual decision with regard to the under Article 215 of the EEC Treaty is also applicants. admissible.
9. By an order of 26 March 1987 the Court granted the defendant's application for a (a) The legal nature of the aforesaid provision ruling on the admissibility of the applications and first limited the oral procedure to the question of admissibility of the applications. 13. One of the main issues debated before the Court was the question whether the contested amendment of the market organ- 10. I will examine the arguments of the ization for sugar concerned primary law parties in detail below. For the rest, I refer enacted by the Member States or secondary to the Report for the Hearing. law derived from such law. The view eventually taken by the Council was that the amendment of the market organization was a legislative act of the Member States B — Opinion adopted in the framework of an act of accession and that therefore the provision in question was a legal provision ranking I — The action for annulment equally with the foundation treaties. In its view, the legality of such a provision cannot be reviewed by the Court since its juris- 11. The applicants' view that general rules diction extends only to reviewing the acts of adopted by the present Member States of the Community institutions referred to in the European Economic Coiumunity m the Article 173 of the EEC Treaty and not the form of a treaty governed by international actions of Member States undertaken law, more precisely in an annex to an act of pursuant to Article 237 of the EEC Treaty. accession, must actually be regarded as containing an individual decision of secondary legislation which, as an act of a Community institution, is open to challenge under the second paragraph of Article 173 14. In assessing the status in law of Annex I of the EEC Treaty may indeed appear bold. to the Act of Accession reference must first be made to the second paragraph of Article 237 of the EEC Treaty. That provision 12. In order to assess the merits of that view it is first necessary to consider the legal 1 — Official Journal 1981, L 177, p. 4. nature of Annex I to the Act of Accession, 2 — Official Journal 1986, L 302, p. 23.
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provides that the conditions of admission governed by Article 237 of the EEC Treaty. and the adjustments to the Treaty It may, however, be assumed that the States, necessitated thereby are to be the subject of which are at liberty to adjust the EEC an agreement between the Member States Treaty itself in the way required for and the applicant State. Whilst, therefore, accession, must also have the power to mention is made of the Treaty adjustments make changes to secondary law in the way necessitated by the admission of a new required to meet the needs of the Member State, it must be observed that Community as newly composed. Article 237 of the EEC Treaty does not mention the adjustment of legislation enacted by the Community institutions.
18. Although Article 27 of the Act of Accession shows that there was no 15. The conditions of admission referred to compelling reason for the adjustments of in the second paragraph of Article 237 of secondary legislation to be carried out by the EEC Treaty are to be understood as the Member States instead of by the meaning the derogations of limited duration Community institutions normally from the EEC Treaty 3 and no doubt also responsible for such matters, I would still the obligations contained in Articles 3 and 4 not call in question the legality of Article 26 of the Act of Accession requiring the new of the Act of Accession and Annex I Member States to accede to certain thereto, especially since none of the parties decisions, agreements or conventions, as involved has raised an objection in this well as their obligation to pay their share of regard. It may have been necessary to capital to the European Investment Bank proceed in that way for practical reasons. (Protocol 1 of the Act of Accession). One point is clear, however:
Article 237 of the EEC Treaty does not provide — at any rate not unequivocally — that the necessary 16. The possibility that the conditions of amendments of secondary legislation are to admission also include amendments of be the subject of the agreement between the secondary legislation must therefore Member States and the applicant State; it probably be excluded. That view is leaves that question open. supported all the more by the assumption that the conditions of admission must concern rules whose validity cannot be chal- lenged before the Community institutions 19. Even if the amendments described were but possibly only by all the contracting to be attributed to Community primary law, parties through the procedure for revising this would still not provide any guidance as the Treaty laid down in Article 236. to whether all provisions of primary law are actually of equal rank in the hierarchy of provisions of Community law.
Since 17. The adjustment of secondary legis- accession treaties are, after all, agreements lation — not by the Community institutions admitting additional States to a group of having that competence under the EEC members of an existing community, it may Treaty but by the old and new Member be argued that such treaties should only States themselves — therefore takes place in contain the necessary technical adjustments a kind of legal grey area which is not clearly of existing Community law without substan- tially changing the character of the 3 — Observations of the Commission in Case 93/78 Lothar Community.
It would then presumably be Mattheut v Doego Fruchtimport und Tiejkühlkott eG; necessary to carry out such an amendment judgment of 22 November 1978 [1978] ECR 2203 at p. 2208. pursuant to the procedure laid down in
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Article 236 of the EEC Treaty. Conse- 21. Since the amendment of the market quently, the possibility cannot be excluded organization for sugar by Article 26 of the that the Member States themselves might Act of Accession in conjunction with enact primary law contrary to the Treaty Section XIV (c) No 2 of Annex I thereto which would then necessarily be subject to was a permanent 5 amendment, Article 8 of review by the Court, not only by means of the Act of Accession must be referred to in an interpretation of the kind constantly analysing the status in law of that undertaken by the Court in proceedings amendment. under Article 177 of the EEC Treaty 4 but also in a direct action, be it eventually essentially on the basis of Article 164 of the E E C Treaty.
22. In analysing Article 8 of the Act of Accession I find that I cannot agree with the 20. Let us now turn to the Act of Accession view put forward by the defendant and itself. According to Article 6, the provisions the Commission, acting as intervener, of the Act may not, unless otherwise suggesting that it is nothing more than a provided therein, be suspended, amended or procedural provision. The case for that view repealed other than by means of the is weakened by the clear wording of Article procedure laid down in the original Treaties 8 which refers to the status in law of the enabling those Treaties to be revised, in the amending provisions of the Act of Accession present case, therefore, by means of an as well as to the rules applicable to those analogous application of the procedure laid provisions. Even if the applicable rules may down in Article 236 of the EEC Treaty. still constitute procedural provisions, it Such exceptions provided for in Article 6 nevertheless seems to me that it is not are contained in Articles 7 and 8 of the Act possible to deny that the statement about of Accession. According to those articles, the status in law of those provisions has a acts adopted by the institutions of the substantive content. Furthermore, even if Communities to which the transitional the passage on the applicable rules were to provisions laid down in the Act relate retain be interpreted purely procedurally, I cannot their status in law; in particular, the agree with the Council's restrictive interpre- procedures for amending those acts are to tation according to which they are only continue to apply (Article 7). However, meant to be the rules governing the provisions of the Act of Accession the subsequent amendment of the secondary purpose or effect of which is to repeal or legislation modified by the Act of Accession. amend acts adopted by the institutions of After all, the rules on judicial legal the Communities, otherwise than as a tran- protection could also be included amongst sitional measure, are to have the same status the procedural rules. in law as the provisions which they repeal or amend and are to be subject to the same 5 — The limiuùon in time of this provision to the months of March to July 1986 ensued from Article 394 of the Act of rules as those provisions (Article 8). Accession, which postponed the application of the Community rules introduced for the production of and trade in agricultural products until 1 March 1986, and 4 — For the interpretation of an accession treaty, see the Article 23 of the regulation on the organization of the judgment of the Court of Justice of 29 May 1974 in Case markets in sugar, according to which Anides 24 to 32 of 185/73 Hauptzollamt Bielefelds H. C. König OHG [1974] the regulaúon were to apply only until the end of the ECR p. 607 at 616 et seq. 1985/86 marketing year.
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23. Even if, as a matter of pure logic, it is of . the Kingdom of Spain and the not to be ruled out that, in a regime like an Portuguese Republic and the adjustments to agricultural market organization, individual the Treaties that all the provisions contained provisions may have a higher status in law, 6 in that Act must be provisions of primary the scheme of Articles 6 to 9 of the Act of law but rather that the wording of the Act Accession militates against such an interpre- of Accession militates against that con- tation. clusion, the firm conclusion must be that Article 24 of the regulation governing the organization of the markets in sugar, in the wording which that article assumed under the Act of Accession, must be regarded as containing, formally at least, a provision of
24. The contracting parties would have been secondary legislation. at liberty to extend the fundamental rule in Article 6 of the Act of Accession (providing that the Act may be amended only in accordance with the provisions concerning (b) Action of a Community institution the amendment of the Treaty) to the provisions with which acts of secondary legislation were amended. This the Member 26. The next question to be examined is States precisely did not do, however, but in whether judicial legal protection against the Article 7 and Article 8 laid down the provision of the regulation governing the aforementioned exceptions to that principle. organization of the markets in sugar, as so Consequently, whatever importance the amended, is excluded for the reason that, as amendments to secondary legislation may a matter of form it was not the Council have acquired in the course of the accession which acted as one of the Community negotiations, it may not be assumed that institutions referred to in Article 173 of the those amendments are to be included EEC Treaty but the old and new Member amongst the 'conditions of accession' States acting together. (understood in a wider sense) which could be amended only in the ponderous procedure for revising the Treaties, that is to say, to use the Court's words, the 'basic 27. Having found that in the case of the constitutional charter' of the Community, 7 adjustment of secondary law by Article 26 i. e. unanimously and with the approval of of the Act of Accession it was the Member the national parliaments. States which acted in the place of the institutions envisaged in the EEC Treaty (in this case the Council), having also found that the adjustments of the acts of the institutions by the Act of Accession have the same status in law as the amended
25. Since, therefore, there is no compelling provisions and having further found that the reason to deduce from either Article 237 of adjustments are subject to the same rules as the EEC Treaty or from the contents of the the amended provisions, then the conclusion Act concerning the conditions of accession must be drawn that the acts amended by the Act of Accession are to be attributed in each 6 — In Austrian law, for example, individual provisions of an ordinary statute may have the status of a constitutional case to the Community institution which provision, but only by virtue of an express directive in accordance with Article 44 of the Austrian Federal adopted the original act. Indeed, in a Constitutional Law of 1920. comparable legal situation it would also be 7 — See the judgment of 23 April 1986 in Case 294/83 Partie conceivable for legal protection to be made Ecologiste 'Les Verts' v European Parliament [1986] ECR 1339 at paragraph 23. available in such a way that the trader or
OPINION OF MR LENZ — JOINED CASES 31 AND 35/86
producer concerned could sue the members applicants challenging acts of general of the Community as a whole. However, validity are directly and individually doubts about the admissibility of such an concerned by such acts vary in their degree action under the second paragraph of of strictness. 8 Nevertheless, it is hardly Article 173 of the EEC Treaty would possible to doubt that the applicants are probably be still greater, especially since the individually concerned. Although they are system of legal protection provided for in not named in the contested provision, it is the EEC Treaty makes no provision for clear that they represent two of the existing actions by individuals against Member three isoglucose producers in Spain. Article States. But once it is admitted .that the 24 of the regulation on the organization of Member States have taken the place of the the markets in sugar requires the Member Community institutions responsible for States to allocate a quota to each under- enacting secondary law, the appropriate taking which produced isoglucose in Spain conclusions must be drawn with regard in 1985 on the basis of production in 1983 to legal protection, which in a legal and at the same time determines the basic Community like the European Economic quantities for Spain. It is thus clear that the Community is, according to the judgment quotas of Spanish producers of isoglucose of 23 April 1986 in Case 294/83, compre- may be derived directly from Article 24 of hensive. the regulation without the need for action on the part of Spain. This is confirmed by the practice of a number of Member States described by the applicants; in the past some 28. My intermediate conclusion is therefore Member States have not determined the that the applicants' actions for annulment isoglucose quotas themselves since in their do not fail for being directed against acts view they ensued directly from the regu- whose specific form was determined by the lation governing the organization of the Member States in the Act of Accession. market in sugar.
(c) The question whether the applicants are concerned by the contested provision
29. The next question to clarify is whether 31. That conclusion is not precluded by the the other requirements for admissibility laid fact that under Article 25 of the regulation down in the second paragraph of Article governing the organization of the markets 173 of the EEC Treaty are fulfilled. Since in sugar the Member States may, under the applicants challenge Article 24 of Regu- special conditions, transfer quotas from one lation No 1785/81 on the organization of undertaking to others or reduce quotas. The the markets in sugar, their action against a possibility of transferring or reducing quotas provision in a regulation would be logically presumes that appropriate quotas admissible only if the provision was of direct have been determined in the first place: this and individual concern to them so that it has already been done in Article 24 of the had to be regarded as an individual decision regulation. The subsequent transfer or affecting them. 8 — See the judgment of 14 December 1962 in Joined Cases 16 and 17/62 Confederation nationale des producteurs de fruits et légumes v Council [1962] ECR 471, the judgment of 5 May 1977 in Case 101/76 Koninklijke Scholten Honil NV 30. requirements laid down by the Court in v Council and Commission [1977) ECR 797 and the judgment of 4 July 1983 in Case 231/82 Spijker Kwasten decisions concerning the question whether BVi Commission [1983] ECR 2559.
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reduction of quotas cannot affect their I I — The claim for an award of damages original determination; for that reason, the under Article 215 of the EEC Treaty fact that the Spanish Government, by a decision of 23 June 1986, determined the production quotas for the three Spanish producers of isoglucose by reference to Article 24 and 25 of the regulation departing slightly from the values ensuing 35. On the question of the admissibility of purely arithmetically from Article 24 of the the claims for an award of damages under regulation is unimportant. In any case, the the second paragraph of Article 215 of the determination of the quotas has been chal- EEC Treaty I can be brief. In objection to lenged before the national courts so that it the admissibility of these claims it was is not possible to say whether they will essentially argued that there was no continue to stand. question of an act of one of the Community institutions but only of an act of the Member States. 32. In conclusion I therefore consider the claim for a declaration that Article 24 of the regulation governing the organization of the sugar markets, as amended by the Act of Accession, is void to be admissible. 36. Since, however, the conclusion was drawn from Article 8 of the Act of Accession that the organization of the (d) The claim for the determination of a f air markets in sugar, even in the form it quota acquired under the Act of Accession, is attributable to the Council, it is appropriate to hold the Community liable for the 33. That conclusion does not apply, 'notional' action of the Council. Only if however, to the additional claim for an there was some reluctance to accept such a order requiring the Council to determine fiction would it be necessary to consider non-discriminatory quotas. The Court's task whether or not the Community must also be in proceedings under Article 173 of the liable for the action of the 'institution' EEC Treaty is to review the legality of acts formed by the Member States acting in of the institutions. However, under Article concert. After all, the Community's liability 176 of the EEC Treaty, it is for the cannot depend on which institution institution whose act has been declared void happened to act for the Community; it is to take the measures necessary to comply not the institutions themselves which are with the judgment of the Court. To give liable for any wrongful action on their part specific directions in this regard would be but the Community as a legal person. Since beyond the Court's jurisdiction. 9 it is not wholly unknown for the Member States to act for the Community — consider, for example, the 34. The applicants' claim for an order measures contained in the various Acts of requiring the defendant to determine Accession or the procedure to appoint non-discriminatory quotas is therefore inad- members of the institutions of the missible. Community — the Community would have to be considered liable for those 9 — On this point, sec the recent judgment of 17 November 'institutions' which are not the institutions 1987 in Joined Cases 142 and 156/84 British American of the Community expressly mentioned in Tobacco Company Limited and Others v Commission of the European Communities [1987] ECR 4487, paragraph 13. Part Five of the EEC Treaty.
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37. In my view, therefore, the alternative can avoid a review of the question whether claims for damages are also admissible. the measures adopted by them are in conformity with the basic constitutional charter, the Treaty*.7 Although that 38. If I therefore propose that the Court statement referred in that specific case only should declare that the actions are on the to an act of the Parliament, I regard it as a whole admissible, this will be quite in line general statement which characterizes the with the trend of its more recent case-law. It European Economic Community as a should be pointed out in this regard that, as Community based on the rule of law and the Court stated in its judgment of 23 April having a system of legal protection. 1986 in Case 294/83, 'the European Therefore that principle should also apply in Economic Community is a Community a case in which the Member States acted for based on the rule of law, inasmuch as the Community institutions actually having neither its Member States nor its institutions competence to act.
C — Conclusions
In conclusion, I propose that the Court should rule as follows on the objection of inadmissibility raised by the defendant:
(1) The actions for annulment and the alternative claims for damages are admissible;
(2) The claims for an order requiring the defendant to determine non-discrimi- natory production quotas are inadmissible;
(3) The decision on costs is reserved.
7 — See the judgment of 23 April 1986 in Case 294/83 Partie Ecologiste 'Les Verts' v European Parliament [1986] ECR 1339 at paragraph 23.