C-244/88

USINE COOPÉRATIVES DE DÉSHYDRATATION DU VEXIN AND OTHERS v COMMISSION

OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 26 September 1989 *

Mr President, 2. On 28, 29 and 30 June 1988, the Members of the Court, applicants submitted applications to the national intervention agency for certificates with advance fixing of the aid in question.

1. The applicants challenge Council Regu­ lation (EEC) No 1910/88, 1 which sus­ However, in the last days of June, in view pended the advance fixing of aid for dried of a sharp rise in the world price of dried fodder for the period from 1 to 7 July 1988. fodder, a massive influx of applications for advance fixing of the aid was observed in the Community.

OPINION OF MR TESAURO —CASE C-244/88

3. By way of preliminary, the Commission a regulation and a decision is whether or objects that the application is inadmissible not the measure in question has general on the ground that the conditions laid down application. It is therefore necessary to in the second paragraph of Article 173 of appraise the nature of the contested measure the Treaty are not satisfied. and in particular the legal effects which it is intended to produce or actually produces.

The contested measure is of general application and cannot therefore be seen as A measure does not cease to be a regulation a decision which, although purporting to be because it is possible to determine the a regulation, is of individual concern to the number or even the identity of the persons applicants. to whom it applies at any given time as long as it is established that such application takes effect by virtue of an objective legal or factual situation defined by the measure in It should be made clear in that respect that, relation to its purpose. according to consistent and well-known decisions of the Court: 5

USINE COOPÉRATIVES DE DÉSHYDRATATION DU VEXIN AND OTHERS v COMMISSION

'when the said regulation was adopted, the still, the fact that they represent a numerus number of applications [for import licences] clausus known to the institution concerned, which could be affected by it was fixed. No is a necessary condition for the measure to new application could be added' (see para­ be recognized as not constituting a regu­ graphs 16 to 19; emphasis added); lation, it is not sufficient in itself.

and that,

It has already been stated that, according to the cases cited above, 'a measure does not 'accordingly, by providing that the system cease to be a regulation because it is introduced by Article 1 of Regulation No possible to determine the number or even 565/70 should be maintained for the the identity of the persons to whom it relevant period, the Commission decided, applies at any given time as long as it is even though it took account only of the established that such application takes effect quantities requested, on the subsequent fate by virtue of an objective legal or factual of each application which had been lodged' situation defined by the measure in relation (see paragraphs 20 to 22). to its purpose'.

Similarly, in CAM, 7the Court's reasoning is based on the consideration that the contested regulation It seems equally necessary for the circum­ stance which enables the addressees of the measure to be identified to have in some 'applies to a fixed and known number of way prompted the intervention of the cereals exporters as well as, in respect of institution and therefore to form part of the each of them, to the amount of the trans­ raison d'être of the measure itself. actions for which advance fixing had been requested' (see paragraph 15; emphasis added).

In even clearer terms it has been emphasized 6. The applicants object that the extension that 'il ne suffit par que le nombre ou of the validity of the regulation so as to l'identité de ces personnes soient connus, ou suspend applications lodged after 30 June puissent l'être; il faut encore qu'ils figurent 1988 was a sham. parmi les éléments ayant déterminé l'adoption de l'acte. En d'autres mots, il faut un lien de causalité entre la connaissance qu'a l'institution de la situation du requérant 10 et la mesure adoptée'. They say so for two reasons. In the first place, it is contrary to the current practice of undertakings to apply for certificates at the start of the month. In the second place, the contested regulation, which was adopted 5. With respect to the present case, it must for anti-speculative purposes, is only first of all be pointed out that when the ostensibly applicable to applications lodged contested regulation was adopted, on 30 on or after 1 July. As from that date, the June 1988, the addressees of the measure amount of the aid was reduced by did not constitute a clearly defined circle Commission Regulation (EEC) No known to the Commission. 1895/88, 11 so that it was proportionately correct (duly reflecting the difference between the world price and the Community price of dried fodder). The regulation in question — as often Therefore, any applications lodged on or occurs in cases where the issue of advance- after 1 July—if it is conceded that there fixing certificates is suspended — affected were any — could not in any event have both applications which had already been been speculative and should not therefore lodged and those which had not yet been have been covered by the suspension. In the lodged but could have been lodged after 30 applicants' view, it follows that the regu­ June 1988. lation in question, although purporting not to do so, in reality related only to applications lodged on or before 30 June, and thus to a clearly defined group.

As regards the non-speculative character of suspension. However, the suspension also any applications lodged as from 1 July, that applied to applications submitted to the is a matter which can only be determined national authorities on 30 June (on which ex-post facto. When the suspending regu­ date the amount of the aid had not yet been lation was adopted, during a phase of sharp reduced), of which the Commission, when variations in prices on the market in ordering the suspension in question, could question, the Commission was not in a not possibly have been aware. position to predict with absolute certainty whether the adjustment to the amount of the aid decided upon on 1 July would be sufficient. Until the situation became clearer I do not therefore think it can be concluded and more stable, it was appropriate to that the suspending regulation concerned a suspend advance fixing for the maximum clearly defined and identified circle. On the period allowed, namely seven days. I do not contrary, it appears to be intended to affect therefore think it can be concluded that the the legal situation of traders which were not suspension was designed to affect only identifiable when the measure was adopted. applications submitted up to 30 June. On the contrary, it also covered applications lodged subsequently, which could not be reliably classified in advance as speculative 7. That should be sufficient to indicate that or otherwise. the contested regulation cannot be regarded as a set of decisions against which natural or legal persons are entitled to bring an action under the second paragraph of Article 173.

On the other hand, the suspension is not a Commission would assess the situation and response or, still less, a decision adopted in decide whether licences should be issued. In relation to individual applications for that case, not only — as I have said — did advance fixing. Although the provisions the measure adopted by the Commission (a granting the power of suspension state in precautionary measure in that case) relate to general that the power confirmed may be a specific and closed circle of traders but, exercised 'in particular' when the volume of what is more important, the import licence applications for advance fixing appears to applications submitted by them (and, in bear no relation to the normal possibilities particular, the quantities indicated) were the of disposing of the product on the market essential element taken into consideration (see in this case Article 12 of Council Regu­ by the Commission in defining the scope of lation (EEC) No 1417/78), that is due to the precautionary measure to be adopted. In the fact that an excessive volume of those circumstances, therefore, there was a applications is a particularly reliable causal link between the applications for indicator of speculative activity and, import licences submitted and the pre­ therefore, of a change in normal market cautionary measure. Therefore, that conditions. But there is nothing to prevent measure — as pointed out by the the Commission from ordering suspension, Court — was not of general application, even where there is no abnormally high even though it was to be regarded as a set volume of applications, provided that, of of decisions of individual concern to the course, the market conditions justify such a separate applicants. course. Thus, for example, in the industry in question, if there were an unexpected rise in the world price of dried fodder the Commission could even decide on suspension as a preventive measure, that is to say before applications of a speculative nature started to be submitted to the However, that causal link does not appear national authorities. to exist in the present case since the suspension of advance fixing is logically — as is apparent from the basic regulations — attributable to an assessment of the market situation and not necessarily The justification for a measure suspending to an evaluation of the applications advance fixing is therefore merely a de­ submitted for advance fixing. terioration in the balance of the market, not the submission of individual applications by traders.

Moreover, that conclusion is supported by a changed in such a way that suspension of precedent which is substantially analogous advance fixing is necessary for a certain to the present case. I refer to the judgment period. in Moksel, 12 in which the Court declared inadmissible an application for the annulment of a regulation suspending the advance fixing of export refunds in the beef Not infrequently, therefore, such regu­ and veal industry, observing that: lations are contested either by way of preliminary-ruling proceedings or direction actions, as in this case and in the Moksel case referred to earlier. 'Consequently it must be deduced from the purpose of the contested measure, from the framework of the regulations of which it forms part, and also from its very nature It therefore seems to me important that the that it is indeed a regulation which is of Court should make clear to the interested general application; it follows that the parties which remedy should be pursued objection raised by the Commission must be when they seek to challenge a suspending accepted in so far as it concerns the regulation: whether they may seek application that Regulation No 3318/80 annulment under Article 173 or whether, on should be declared void' (Paragraph 19). the other hand, they should allege invalidity in proceedings before a national court against implementing measures taken by the national authorities, at that time requesting I therefore consider that the present the national court to submit a question to application is inadmissible. the Court of Justice for a preliminary ruling on the validity of the suspending regulation.

9. I therefore propose that the Court declare the application inadmissible and order the applicants to pay the costs.