C-253/86

AGRO-PECUÁRIA VICENTE NOBRE v COUNCIL

OPINION OF MR ADVOCATE GENERAL MISCHO delivered o n 11 F e b r u a r y 1 9 8 8 *

Mr President, prescribed by Regulation N o 777/85. It Members of the Court, claims in particular that Regulation N o 2239/86 can be applied throughout its 10-year period of validity only to an area of 15 000 hectares. It therefore gives the 1. On 20 June 1986 the applicant, which is Portuguese authorities a wide discretionary the owner of a vineyard in Portugal, power and all the persons affected will submitted to the Secretary of State for Agri- certainly not be able to benefit from it. cultural Development and to the Minister Lastly, the amount of the permanent aban- for Agriculture, Fisheries and Food an donment premiums for which it provides, application for the grant, under Council adjusted by reference to the average yield Regulation N o 777/85 of 26 March 1985, 1 per hectare of the areas under vines of a premium for the permanent aban- concerned, is lower than that fixed by donment of vine-growing in respect of an Regulation N o 777/85. area of 30 hectares which it intended to grub up as part of the restructuring of the whole of its property. 4. The applicant claims primarily that the Court should declare Regulation No 2239/86 void in so far as, owing to the 2. On 14 July 1986 the Council adopted effect of Article 6 (6) which deprives the Regulation N o 2239/86 on a specific applicant of the benefit of Regulation N o common measure to improve vine-growing 777/85, it infringes the general principles of structures in Portugal (Official Journal Community law on legal certainty, respect 1986, L 196, p. 1), Article 6 (6) of which for acquired rights, non-retroactivity of provides as follows: legislation, and the protection of legitimate expectations.

'The second paragraph of Article 173 of the Treaty makes the admissibility of proceedings instituted by an individual for a declaration that a measure is void dependent 9. It is addressed to all Portuguese vine- on fulfilment of the condition that the growers and is of concern to the applicant contested measure, although in the form of only in his objective capacity as a vine- a regulation, in fact constitutes a decision grower, on the same basis as any other which is of direct and individual concern to trader in the situations to which it applies: him. The objective of that provision is in the applicant is therefore not individually particular to prevent the Community concerned. institutions, merely by choosing the form of a regulation, from being able to exclude an application by an individual against a decision of direct and individual concern to him and thus to make clear that the choice 10. Nor is the applicant directly concerned. of form may not alter the nature of a In particular, the granting of the permanent measure. abandonment premium provided for by Regulation No 2239/86 depends on a formal decision adopted by the competent Portuguese authorities to which applications Nevertheless an action brought by an indi- must be submitted. In exercising that power, vidual is not admissible in so far as it is the Portuguese authorities have a wide directed against a regulation having general discretion, as the applicant itself application within the meaning of the acknowledges, in so far as throughout the second paragraph of Article 189 of the proposed duration of the common measure Treaty. The test for distinguishing between under Article 6 of Regulation N o 729/70, 3 a regulation and a decision is whether or that is to say for 10 years (Article 10 (1)), not the measure in question has general the permanent abandonment premium is application. It is therefore necessary to restricted to a total area of 15 000 hectares appraise the nature of the contested measure of the Portuguese territory under vines and in particular the legal effects which it is (Article 6 (4)) which, however, in the intended to produce or actually produces.' 2 undisputed submission of the Council covers 279 000 hectares. 2 — Judgment of 24 February 1987 in Case 26/86 Deutz and Geldermann v Council [1987] ECR 941, at paragraphs 6 and 7; see also order of 20 May 1987 in Joined Cases 233 3 — Council Regulation (EEC) N o 729/70 of 21 April 1970 on to 235/86 Champlor and Others v Commission [1987] ECR the financing of the common agricultural policy (Official 2251, at paragraphs 6 and 7. Journal, English Special Edition 1970 (I), p. 218).

12. It is clear from this definition of the 15. The Council, the Portuguese Republic object of the application that the applicant is and the Commission deny that the applicant claiming that not only in the 1986/87 wine is individually concerned by the contested year but in all subsequent wine years Regu- provision simply because of its application lation No 777/85 should apply to Portugal for a premium, which was submitted before instead of Title II of Regulation N o 1 September 1986, and therefore before the 2239/86. By claiming a declaration that beginning of the wine year in respect of Article 6 (6) is void, the applicant is which it could otherwise have been therefore in reality seeking a declaration considered, and it had no legal effects. that all the provisions of Regulation N o 2239/86 concerning the grubbing of vines are void, that is to say a declaration that a number of provisions having the nature of a regulation are void. 16. The applicant considers that there is an obvious similarity between its case and Case 11/82 Piraiki-Patraiki v Commission. 4 In that case the applicants claimed that even if 13. At the hearing, however, the applicant gave the impression that its application 4 — Judgment of 17 January 1985, [1985] ECR 207.

OPINION OF MR ADVOCATE GENERAL MISCHO — CASE 253/86

the decision at issue applied to all Greek 19. It cannot be said, however, that Agro- exporters, actual or potential, of cotton yarn pecuária was affected by that decision to a to France, they were in a special situation greater extent than the other Portuguese inasmuch as, before the decision was vine-growers who were preparing to submit adopted, they had entered into contracts to applications at the beginning of the new be performed during the period of wine year. It merely applied earlier than application of the decision. As regards those they did. who could show that they had entered into such contracts, the Court acknowledged the existence of a circumstance which distin- guished them from any other person concerned by the contested decision, 20. As the Court has frequently stressed:

AGRO-PECUÁRIA VICENTE NOBRE v COUNCIL

affected by it was fixed. No new application 25. In a case in which the national inter- could be added' (paragraphs 17 and 18). vention agencies forwarded to the Commission tenders received in the context of a periodic invitation to tender for the sale of meat held by those agencies, the Court admitted the action brought by the tenderer because, although the Commission decision 22. In the present case the situation would was adopted in the form of a decision have been identical only if the contested addressed to the Member States, it directly regulation had been adopted after 31 determined the fate, be it favourable or December 1986, that is to say after the unfavourable, of each of the tenders closing date fixed for the submission of submitted. 6 applications for the abandonment premium for the 1986/87 wine year. Only then would the number and identity of the vine-growers affected by the reduction in the premium have been determined and fixed ne varietur. The measure would then have concerned, at 26. Even in the judgment in Piraiki- least as regards that wine year, a closed Patraiki, upon which the applicant has category of traders. However, the contested placed particular weight, the Court, in regulation was adopted on 14 July 1986. holding that the undertakings were indi- vidually concerned, based itself on the existence of contracts already entered into, which had been shown to exist, and whose execution would be wholly or partially prevented by the contested measure. 23. Furthermore, before an individual may be considered to be individually concerned by a provision of a regulation, it must affect his legal position (judgment of 18 November 1975 in Case 100/74 Société C. 27. In the present case the applicant clearly A. M. v Commission [1975] ECR 1393, at cannot claim to have entered into any p. 1403, paragraph 19). In other words, the similar commitment, the execution of which action taken by the individual must have was prevented by the adoption of Regu- had legal effects which are themselves lation No 2239/86. affected by the contested measure.

which the vines in question belong, make an 31. The Council, the Portuguese Republic on-the-spot assessment of their yield and and the Commission consider, however, that decide, on the basis of all these factors, the alternative claim for compensation must the amount to be granted to each. An be declared inadmissible on the ground that application submitted under Regulation N o it does not comply with Article 38 (1) (c) 777/85 therefore has no automatic effects. of the Rules of Procedure of the Court, which requires that the application orig- inating the proceedings should state the subject-matter of the dispute and the 29. Since it is also clear that no decision grounds on which the application is based. was taken on the application by the competent authorities, it may be concluded that the applicant's legal position was not 32. It is true that in the pleadings the affected by the contested provision. On the applicant has been very unforthcoming in basis of all the foregoing considerations, the this regard. In its application, it merely application for a declaration of nullity must claims that the Court should 'order the therefore be dismissed as inadmissible. Community to make good the damage suffered by the applicant as a result of the non-application to it of Council Regulation (EEC) No 777/85 of 25 March 1985'. Claim for damages Moreover, it was only in the reply (at p. 52) that it stated the extent of the damage which it claimed that it had suffered, namely ECU 150 000, together with 30. Although I have concluded that the interest from the date of service of the application for a declaration of nullity is application on the defendant. inadmissible, this does not mean that I have no need to consider the application for damages since, 33. In my view, however, it is sufficiently clear from the application itself that the purpose of the claim is simply to obtain 'according to an established body of damages and interest equivalent to the decisions of the Court, the application for premium to which the applicant claimed compensation provided for by Article 178 that he was entitled, under Regulation N o and the second paragraph of Article 215 777/85, in respect of the 30 hectares under of the Treaty was introduced as an vine which it intended to grub (that is to autonomous form of action with a particular say, ECU 150 000). purpose to fulfil within the system of actions and subject to conditions on its use dictated by its specific nature'. 7 34. As to the grounds relied upon, they are clearly identical to those on which the claim for a declaration of nullity is based.

36. In the case of Compagnie d'approvision- no purpose unless Regulation N o 2239/86 nement v Commission, 8 the Court was is not declared void (either because the main confronted with a similar situation. The action is held to be inadmissible or Commission had contested the admissibility dismissed as unfounded). Indeed, if Regu- of the claims for compensation on the lation 2239/86 were annulled by the Court, ground that, since the applicants had Regulation No 777/85 would continue to calculated the damage as the exact apply to Portugal and the applicant would difference between the subsidies resulting not suffer the damage alleged. from the contested regulations and those which would result from regulations adopted in accordance with their wishes, those applications were intended to 39. I therefore propose that the Court circumvent the requirements of Article 173 should not declare the claim for damages of the EEC Treaty, which would have inadmissible but should examine the rendered an application for the annulment substance. of the said regulations inadmissible.

40. In this regard, the Court has consistently 37. The Court, however, held as follows: held as follows:

OPINION OF MR ADVOCATE GENERAL MISCHO — CASE 253/86

It is in the light of these requirements that A fortiori, the same must apply to a this claim for damages must be assessed. potential advantage.

41. As has already been stated, we are entitled to assume that the superior rules of 44. For the same reasons, it cannot be law for the protection of the individual accepted that the principle of the protection whose breach the applicant alleges are the of legitimate expectations was breached. same as the rules on which its application Moreover, the Court has held that if a for a declaration of nullity is based, that is prudent and discriminating trader could to say the principles of respect for acquired have foreseen the adoption of a Community rights, protection of legitimate expectations, measure likely to affect his interests, he legal certainty and non-retroactivity of cannot plead that principle if the measure legislation. is adopted (judgment of 1 February 1978 in Case 78/77 Lührs v Hauptzollamt Hamburg-Jonas [1978] ECR 169). 12 It must be pointed out in this case that Article 7 of Regulation N o 777/85 itself provides for 42. It has already been shown that the the amount of the premiums to be altered application for the grant of an abandonment by the Council. premium submitted by the applicant to the Portuguese authorities could not have had any legal effects or a fortiori have given rise to any right to the premium under Regu- lation No 777/85. 45. In this context, the Commission rightly stresses that 'it would be absurd if, by submitting (such) an application in advance (its having conferred no rights on its author), a person could compel the 43. Under those circumstances, there could Community to maintain rules unchanged be no question of an infringement of the from one year to the next, regardless of the principle of respect for acquired rights. economic circumstances'. On more than one Furthermore, the Court has recently occasion, 13 the Court has held that: confirmed, by referring to its judgment of 27 September 1979 in Eridania, 10 that

48. In conclusion, I propose that the Court should declare that the claim for a declaration of nullity is inadmissible and should dismiss the claim for damages as unfounded and order the applicant to pay the costs, including those of the inter- veners.