C-97/86

By virtue of Article 103 of the Greek Act of In Case 192/83 (Greece v Commission Accession (Official Journal 1979, L 291, p. [1985] ECR 2791 which I shall call the 17), the level of production aid for Greek '1983 annulment action'), Greece then chal- producers of the concentrate was to be lenged Regulation No 1618/83 (aids) and calculated differently from that of producers Regulation No 1615/83 (coefficients) which in other Member States. Two levels of aid concerned only the marketing year 1983/84. were therefore fixed for the marketing years In its judgment, the Court held that the 1981/82, 1982/83 and 1983/84; the coeffi- Commission had 'committed a technical cients adopted for the year 1981/82 were error in transposing, to a system of aid retained for the two subsequent years and which differentiates between Greek

ASTERIS v COMMISSION

OPINION OF SIR GORDON SLYNN—JOINED CASES 97, 193, 99 AND 215/86

between Greece and the other Member Cases 97 and 99/86 States.

The producers and Greece seek identical Following the judgment in the 1983 results in the first pair of actions now before annulment action, the Commission on 20 the Court (Cases 97 and 99/86 February 1986 adopted Regulation N o respectively), namely the annulment of 381/86 (Official Journal 1986, L 44, p. 16) Regulation No 381/86 and a positive order providing for 'additional payment of from the Court that the Commission comply production aid for certain sizes of packings with the judgments in the 1983 annulment with tomato concentrates obtained from action and the damages action and allocate Greek tomatoes during the 1983/84 further aid for marketing years 1981/82, marketing year'. It recited the need to 1982/83, 1984/85 and 1985/86 (and, in the remedy the inequality of treatment iden- case of the producers only, 1986/87) so as tified by the Court in its judgment, but the to put an end to the inequality of treatment Commission has taken no action to increase of Greek producers. In its reply, the Greek the amount of aid paid or payable in respect Government limited the form of order of marketing years prior or subsequent to sought to the annulment of Regulation N o 1983/84. In particular, it has not amended 381/86, but I read this as a compendious Regulation N o 1709/84 dealing with the phrase and not as a restriction on what is years 1984/85, 1985/86 and 1986/87 and asked for in the application. I also consider the inequality of treatment has been main- that it is clear from the Greek Government's tained. pleadings taken as a whole that an order in respect of the 1986/87 marketing year is also sought, since that year is referred to in the arguments which apply equally to that year and to the earlier years. The Commission has taken no point on these two matters.

in which the producers are active, was Community was legislative in nature. Hence adopted following a judgment of the Court, the applicants in Greek Canners had no locus it is said, is irrelevant. standi. At first sight it might be thought that Regulation N o 381/86, which is dealing with a similar matter, is in the same category and that, on the basis of previous rulings of the Court which considered that The producers contend to the the provisions in Article 173 as to the locus contrary — the reference in paragraph 36 of standi of applicants other than Member the judgment in the 1983 annulment action States had to be interpreted in a somewhat to the Commission's duty under Article 176, restrictive way, the application of the taken with the finding in the damages producers must be rejected as inadmissible. action, suffices to make Regulation N o 381/86, despite its outward form, a decision of direct and individual concern to the applicants. In the end, though the question is not entirely an easy one, this is in my opinion In Joined Cases 16 and 17/62 Confédération too simplistic a view. nationale des producteurs de fruits et légumes v Council [1962] ECR 471, the Court held that the question whether a contested instrument was a regulation or a decision must be examined by reference to its object In the first place, Regulation N o 381/86 is and content and not to its official title. The dealing with a situation confined to Greece criterion for the distinction between the two and to a limited number of traders who 'must be sought in the general "application" processed Greek tomatoes into Greek or otherwise of the measure'. A regulation, concentrates during the marketing year essentially a legislative instrument, is 1983/84: those responsible for 9 9 % of 'applicable not to a limited number of production are now before the Court. persons, defined or identifiable, but to categories of person viewed abstractly and in their entirety . . . if a measure, entitled by its author a regulation, contains provisions which are capable of being not only of The Regulation was clearly dealing with direct but also of individual concern to such traders and only such traders and there certain natural or legal persons, it must be is nothing to suggest that any of the admitted, without prejudice to the question applicants were not in business in 1983/84 whether that measure considered in its or that, if it had wished to do so, the entirety can be correctly called a regulation, Commission could not have ascertained a that in any case those provisions do not complete list of those traders. It seems to me have the character of a regulation and may that it is accordingly more in the nature of a therefore be impugned by those persons decision concerning and concerning only under the terms of the second paragraph of such traders than of a regulation of general Article 173* (pp. 478 and 479). import. Because the persons 'to whom the provisions referred were identifiable' at the time the 'Regulation' was made, it seems t o me that they can reasonably be said to have There was no doubt that Regulation N o been individually concerned (Case 112/77 1962/81 which applied throughout the Töpfer v Commission [1978] ECR 1019 at

1030; Joined Cases 41-44/70 NV Interna- under the provisions applicable' (Case 30/76 tional Fruit Company and Others v Küster v Parliament [1976] ECR 1719 at Commission [1971] ECR 411; Case 11/82 1725). Piraiki-Patraiki v Commission [1985] ECR 207; the latter case involving traders who had entered into contracts to supply yarn to In the 1983 annulment action, Greece French buyers before the protective obtained a declaration that the Regulation measures were authorized). covering 1983/84 was invalid. No declaration was sought in respect of earlier years and those regulations were not annulled even though the Court made it clear in the damages action that the regu- lations covering 1981/82 and 1982/83 were There is no doubt that the national auth- affected by the same illegality. The position orities had no discretion in the implemen- for 1983/84 has been corrected (and no tation of the measure. The traders were complaint is made of that) but clearly the thus, in my view, affected by it directly and coefficients adopted for the years from 1984 the measure is to be treated as of direct to 1987 in Regulation No 1709/84 of 19 concern to them within the meaning of June 1984 are not in compliance with the Article 173 of the EEC Treaty (International Court's judgment in the 1983 annulment Fruit Company (supra). Even if it were felt action which was given on 19 September that the national authorities enjoyed a 1985. theoretical discretion such a Community measure can be of direct concern to an indi- vidual (Piraiki-Patraiki (supra). Two principles have to be considered. The first is that the Treaty, in Article 173, lays down a limitation period for challenging the validity of the measures adopted by the Commission. If they are not challenged in I would thus accept that the producers have time and subsequently annulled they are the necessary standing to challenge this treated as valid. The second is that the regulation deliberately adopted to correct a Commission must take steps to comply with technical error made to their disadvantage the Court's judgment. in general legislation which did not adequately take account of their particular position. As far as the former is concerned, clearly Greece failed to challenge in due time the validity of the Regulations dealing with 1981/82, 1982/83 and Regulation No 1709/84 dealing with the later years. Those Regulations thus stand unless amended by By Article 176 of the Treaty an institution the Commission. In respect of marketing the act of which was declared void or the years which were completed by the date on failure to act of which was declared which the judgment was given I consider contrary to the Treaty 'shall be required to that the Commission is entitled to rely on take the necessary measures to comply with the time limitation laid down. If it were the judgment'. A successful party in otherwise the limitation provisions could proceedings before the Court is entitled 'to always be evaded if a Member State failed request the Court to rule on any failure by to challenge the regulations replaced the institution to perform its obligation annually until a late stage when it chal-

lenged a particular year and then sought to far as it fails to deal with the years 1985/86 say that the earlier years must be corrected. and 1986/87 on the basis indicated by the The interests of legal certainty justify the Court, Regulation No 381/86 is void. rule that measures already implemented should stand even if they are recognized to have been dealt with on an erroneous basis. It may at first sight seem strange that 1983/84 and 1985/86 et seq. should have to be treated on a proper basis but that 1984/85 should remain as it was. I do not think that this is an illogical position once it is recognized that Greece could have chal- lenged the regulation in respect of that year and failed to do so. I thus consider that the Court's judgment does not oblige the Commission to revoke or amend the regulations dealing with The producers were not parties to the marketing years 1981/82, 1982/83 or judgment annulling the Regulation in 1984/85 which were all ended by the date respect of 1983/84. None the less they of the Court's judgment, the last of such were, in my view, entitled on the same basis years having terminated on 30 June 1985. as Greece to expect that Regulation N o 381/86 would hot only correct the position for that year but would also put right the position for the current and future years. They are entitled to say that it is at the least surprising that the Commission should wish to rely so resolutely on the limitation defence and to proceed on the basis On the other hand, the years 1985/86 and declared to be unlawful for the marketing 1986/87 were not completed. Despite the years still to be completed. The fact that the arguments that Greece only has itself to damages action failed is not conclusive. blame for not seeking to challenge the Articles 173 and 215 are independent and validity of the relevant regulations including have a different purpose. The fact that the N o 1709/84 in due time, it seems to me that Court refused damages in the damages to comply with Article 176 of the Treaty the action does not in my view pose an obstacle Commission was obliged to put right the to the producers succeeding in the current regulations dealing with the current and the case. I consider, therefore, that in Case subsequent marketing years. Even though 97/86 they are entitled to the same there was no power in the Court to annul declaration as Greece. that regulation, the time for application having been allowed by Greece to go by, the Commission's failure to correct the Cases 193/86 and 215/86 position once it knew that the method adopted was defective is a breach of its obli- gations under Article 176 of the Treaty. Those obligations were not confined to The applicants made it clear that the second dealing only with the year 1983/84 in pair of actions are alternative to the first. respect of which the relevant Regulation They do not need the second pair if they was annulled. Greece was in time to succeed on the first. On the conclusion I challenge Regulation No 381/86 and is in have reached, the second pair does not need my view entitled to a declaration that, in so to be considered.

However, since this in my view merely duplicates the result in the first pair of actions, I would make no order on the second pair. If the producers' first action (Case 97/86) is held to fail as being inadmissible, I would hold the second action (Case 193/86) to be admissible and the producers would succeed on the substance in that action and Greece would succeed in the first case (Case 99/86) which is clearly admissible and there would be no order on the second Greek application (Case 215/86). If either or both of the first pair fail on the substance then it seems to me that the parallel actions in the second pair must also fail.

ASTERIS v COMMISSION

However, in the circumstances I consider that the applications in Cases 97 and 99/86 should succeed; Regulation 381/86 should be declared void to the extent that the Commission has failed to comply with the Court's judgment in the 1983 annulment action, taken with that in the damages action, by not fixing coefficients which remove the element of discrimination against Greek producers for the marketing years 1985/86 and 1986/87.

Since the applicants have succeeded in part and failed in part, I would order the Commission to pay half the costs of the applicants.