C-229/88
ECLI:EU:C:1990:46
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CARGILL AND OTHERS v COMMISSION
OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 6 February 1990 *
Mr President, parts of the certificate referred to in Article Members of the Court, 4 which have been requested and have not yet been issued in the case:
1. On 7 June 1988 the Commission adopted (a) where there is a material error in the Regulation (EEC) No 1587/88 suspending amount of the subsidy which is advance fixing of the subsidy for colza, rape published, and sunflower seed (Official Journal L 141, 8.6.1988, p. 55) 'in the case of certificates the application for which is lodged from 7 (b) where certain factors may create a to 11 June 1988'. The applicants seek a monetary distortion between Member declaration that that regulation is void in so States, far as it applies to applications for advance fixing lodged on 7 June 1988. and when these cases may create a discrimi nation between interested parties.
2. In support of their application they refer to Article 8 of Council Regulation (EEC) 3. Suspension of advance fixing shall be No 1594/83 of 14 June 1983 on the subsidy decided in accordance with the procedure for oilseeds, as subsequently amended, ' laid down in Article 38 of Regulation No which constitutes the legal basis for the 136/66/EEC. contested regulation.
However, in case of emergency, the Commission may decide on the suspension; 3. That aniele provides as follows: in such a case, the period of suspension shall not exceed five days.'
'1 . In the case of an abnormal situation which results or could result in a 4. The Commission raised an objection of disturbance on the Community market for inadmissiblity, claiming that under the oilseeds, it may be decided to suspend the second paragraph of Article 173 of the advance fixing of the subsidy for the period Treaty private persons can institute necessary to re-establish the balance in the proceedings only if the contested measure, market. although adopted in the form of a regu lation, in fact constitutes a decision which is of direct and individual concern to them. It relies on well-known decisions of this 2 2. The suspension referred to in paragraph Court and more particularly the judgments 1 may be extended to the advance-fixing 2 — See in particular the judgments of 6 October 1982 in Case * 307/81 Alumnie (1982] ECR 1987, paragraphs 8 and 11, of Original language: French. 24 February 1987 in Case 26/86 Deutz and Geldermann I — Council Regulation (EEC) No 935/86 of 25 March 1986, [1987] ECR 941, paragraphs 7 and 8 and, lastly, of 29 June amending Regulation (EEC) No 1594/83 on the subsidy 1989 in Joined Cases 250/86 and 11/87 RAR [1989] ECR for oilseeds (OJ 1986, L 87, p. 5). 2045, paragraphs 8 and 9.
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of 25 March 1982 in Case 45/81 Moksel v concerning the advance fixing of the refund, Commission [1982] ECR 1129, of 27 or that such difficulties may occur, a October 1983 in Case 276/82 De Beste decision may be taken in accordance with Boter v Produktschap voor Zuivel [1983] the procedure laid down in Article 27 of ECR 3331, and of 21 November 1989 in Regulation (EEC) No 805/68 to suspend, Case C-244/88 Les usines coopératives de for the period strictly necessary, the déshydratation du Vexin and Others v application of those provisions. Commission [1989] ECR 3811 (hereinafter referred to as 'UCDV'). In those judgments, the Court held that Commission regulations suspending the advance fixing of a certain In cases of extreme urgency, the type of refund or aid constituted acts of Commission may, after examination of the general application within the meaning of situation, decide, on the basis of all the the second paragraph of Article 189 of the information available to it, to suspend Treaty, which could not be of individual advance fixing for a maximum of three concern to those persons who had lodged working days. an application for advance fixing before the adoption of those regulations. Applications for certificates accompanied by applications for advance fixing lodged 5. At first sight it might therefore be during the period of suspension shall be considered sufficient to refer to those rejected.' judgments in order to reach the conclusion that the present application is inadmissible. 8. In the De Beste Boter case, the provision in question was framed in identical terms to 6. The fact is, however, that the provisions the provision just cited (see Article 9(2) of at issue in the three cases to which I have Regulation (EEC) No 2429/72 of the just referred differed substantially from the Council of 21 November 1972 concerning provision which served as a legal basis for the suspension of the application of the the contested decision in this case. provisions for the advance fixing of levies and export refunds in different sectors of the common organization of the market (Official Journal, English Special Edition 7. In Case 45/81 Moksel, the provision at 1972 (November), p. 48). issue was Article 5 of Regulation (EEC) No 885/68 of the Council of 28 June 1968 laying down general rules for granting export refunds on beef and veal and criteria 9. In the Court's most recent judgment, in for fixing the amount of such refunds, as Case C-244/89 UCDV, cited above, the amended by Council Regulation (EEC) No essential passage of the text on which the 1504/76 of 21 June 1976 (Official Journal Commission relied for suspension of the L 168, 28.6.1976, p. 7). Paragraph 4 advance fixing was worded as follows: provides as follows:
'1 . If the situation on the Community '4. Where examination of the market dried-fodder market is abnormal, and in situation shows that there are difficulties particular if the volume of applications for due to the application of the provisions advance fixing of the aid bears no relation
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to the normal sale pattern for such products, legal basis for the contested regulation, that a decision may be taken, for certificates not it is not possible to conclude here, as the already issued, to suspend advance fixings Court was able to do in the Moksel and for the period necessary to re-establish UCDV judgments, that the suspension of 3 market stability'. the advance fixing affected without distinction pending applications and those which might have been lodged at a later stage if the suspending measure had not been adopted. 10. It is interesting to note that, before being amended in 1986, Article 8 of Regu lation No 1594/83 had essentially the same wording as that of the provision in question in the UCDVcase. As appears from the last 13. The question remains whether the recital in the preamble to Regulation No contested regulation in fact constitutes, in 935/86, Article 8 was amended because: so far as it covers applications lodged on 7 June 1988, a decision which is of direct and individual concern to the persons who lodged the applications.
'experience has shown, in the case of an abnormal situation on the Community market for oilseeds, that it is necessary to 14. As far as precedents are concerned, clarify the conditions for the suspension of three cases display rather marked similarities the advance fixing of the subsidy'. to the present one. They are Joined Cases 41 to 44/70 International Fruit Company [1971] ECR 411 (judgment of 13 May 1971), Joined Cases 106 and 107/63 Töpfer 11. It is undeniable that the new wording of [1965] ECR 405 (judgment of 1 July 1965) Article 8 subjects the extension of the and Case 62/70 Bock [1971] ECR 897 suspension to certificates already applied for (judgment of 23 November 1971), in which to criteria different from those which allow the Court held the applications to be suspension of advance fixing only as regards admissible. the future. The applicants are therefore right to emphasize that a regulation which covers both hypotheses at the same time in 15. However, the International Fruit fact constitutes a measure made up of two Company judgment differs fundamentally distinct parts: one part relates to from the present case. Under the system at applications pending and another to issue in that case, the Member State was applications yet to be made. obliged to inform the Commission at the end of each week of the quantities for which import licences had been applied for and it was then for the Commission to 12. Such information should normally assess the situation and to decide on the appear in the preamble. But even if the issue of licences, in particular on the basis of preamble lacks clarity in that respect, it is the information communicated to it. The clearly apparent from the wording of Article Court stated, in paragraph 20 of that 8 of Regulation No 1594/83, which is the judgment, that the Commission 'decided ... on the subsequent fate of each 3 — Anide 12 of Regulation (EEC) No 1417/78 of 19 June application which had been lodged'. That 1978 on the aid system for dried fodder (OJ 1978, L 171, p. I). was certainly not the case here.
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OPINION OF MR MISCHO —CASE C-229/8S
16. As for the Töpferand Bock judgments, a contested regulation was being signed by superficial reading of them might give the the Vice-President of the Commission impression that they relate to a situation applications were still pouring into the identical to the one at issue here. However, offices of the competent authorities of the that similarity is no more than apparent. In Member States and that the Commission did those cases the Member States, as a first not know the exact number or identity of step, adopted a precautionary measure or the traders affected by its decision. But, refused to issue an import licence and even if that is assumed to be the case, there thereafter, but not for several days, the would not be sufficient grounds for Commission retroactively confirmed those concluding that the regulation at issue measures. constituted, at least in part, a package of decisions of individual concern to the applicants. Like Mr Advocate General Tesauro, I am of the opinion that although 17. In Töpfer the Court stated that the existence of a numerus clausus, is
'the number and identity of these importers 'a necessary condition for the measure to be had already become fixed and ascertainable recognized as not constituting a regulation, before 4 October, when the contested it is not sufficient in itself'. 4
decision was made'.
19. It must be recalled that in its judgment In the Bock judgment, the Court noted that of 11 July 1968 in Case 6/68 Zuckerfabrik it was Watenstedt GmbH v Council [1968] ECR 409, and on innumerable occasions thereafter, the Court has held that:
'the German authorities ... had requested [the] authorization with particular reference to the applications already before them at 'A measure does not lose its character as a that time' (paragraph 7). regulation simply because it may be possible to ascertain with a greater or lesser degree of accuracy the number or even the identity of the persons to which it applies at any In both cases, the Court emphasized that given time as long as there is no doubt that the Commission was therefore in a position the measure is applicable as the result of an to appreciate that the contested provision objective situation of law or of fact which it affected the interests and circumstances of specifies and which is in harmony with its those importers alone. ultimate objective.'
18. The regulation in question in the present case was adopted during the course 20. It is also necessary, as Mr Tesauro also of 7 June 1988 and was published in the says, Official Journal on 8 June 1988. It did not come to the notice of the traders until the 4 — Opinion of Mr Advocate General Tesauro of 26 September 1989 in Case C-244/88 UCDV and Others v latter date and it is probable that when the Comw;jjion[1989]ECR3811,atp. 3819, paragraph 4.
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'for the circumstance which enables the suspended if certain factors may create a addressees of the measure to be identified to discrimination between interested parties have in some way prompted the intervention and if the certificate applied for has not yet of the institution and therefore to form pan been issued' of the raison d'être of the measure itself'.
and that 21. According to Article 8 of Regulation No 1594/83, the extension of the 'in view of the uncertainty reigning on the suspension of advance fixing to applications markets, there is a danger that a already lodged is possible only if certain continuation of the present system could objective circumstances arise, which are give rise to speculative operations'. wholly unrelated to the identity and even to the number of the traders concerned. Such an extension is possible only in the case: 24. If the Court decides to examine the substance of the present applications and in any event when the Court answers the '(a) where there is a material error in the questions referred to it for a preliminary amount of the subsidy which is ruling by several national courts concerning published; the validity of Regulation No 1587/88, it will have to decide whether, in the circum stances, the conditions laid down in Article 8 of Regulation No 1594/83 were in fact (b) where certain factors may create a fulfilled. monetary distortion between Member States and when these cases may create a discrimination between interested 25. As regards the admissibility of the parties'. present applications, it is possible, however, to conclude that the suspension of the advance fixing, with respect to the 22. Even the latter criterion cannot be applications lodged on 7 June 1988, did not regarded as a reference to the identity of take place by reason of the individual the traders who lodged an application. In applications submitted on that day but by my opinion, it is intended merely to ensure virtue of an objective legal and factual that that category of traders could not situation defined by the contested measure benefit from an undeserved advantage if the in relation to its aim. The purpose of the suspension of advance fixing did not affect contested regulation was in fact to ensure it. that the persons who lodged those applications, whoever they might be, were not able to receive a subsidy of an excessive amount in relation to the purposes of the 23. It is true that, in the contested regu system and thus that there was no dis lation, the Commission made no reference crimination against those traders who to criteria (a) and (b) and that it merely subsequently lodged applications for stated that advance fixing after the expiry of the regu lation suspending advance fixing (11 June 1988) since in the meantime a regulation 'Under Article 8 of Regulation (EEC) No also adopted on 7 June, which entered into 1594/83, the application of the provisions force on 8 June 1988, had reduced the level concerning advance fixing may be of the subsidy.
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26. We are therefore entitled to conclude the meaning of the second paragraph of that the contested regulation applies to an Article 189 of the Treaty and cannot be of objectively determined situation and that it direct and individual concern to the produces legal effects with respect to a applicants within the meaning of the second category of persons defined in the abstract. paragraph of Article 173 of the Treaty. It is therefore of general application within
27. In conclusion, I propose that the Court dismiss the applications as inadmissible and order the applicant companies to pay the costs, including those relating to the application for interim relief.
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