C-366/88

The origin of the dispute thus relates to the scope of the Community legislation on the verification of expenditure financed by Article 9 deals with the Commission's the European Agricultural Guidance and powers to carry out inspections on the spot Guarantee Fund ('EAGGF'). in addition to the checks undertaken by the Member States, and to cooperate with the * Original language: Italien. 1 — OJ 1988 C 264, p. 3. 2 — OJ, English Special Edition 1970 (I), p. 218.

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Article 9(2) provides for those inspections, prescribing that the officials appointed by the Commission are to have access to the books and all other documents relating to 4. Against that background — further expenditure financed by the EAGGF. In details being set out in the Report for the particular they may check: Hearing — it is to be noted that the applicant claims first and foremost that the measure challenged by it is — in disguised form — really an actual regulation for the (a) whether administrative practices are in implementation of Article 9 of the ab- accordance with the Community rules; ovementioned regulation, a measure which the Commission was not empowered to adopt since Article 9(3) expressly entrusts the Council, and only the Council, with the (b) whether the requisite supporting power to adopt general rules for the documents exist and tally with the application of that article. Consequently, transactions financed by the EAGGF; according to the applicant, the Commission, in adopting the Internal instructions at issue, exercised powers not available to it under the applicable Community provisions: as a result, the measure is vitiated by a lack of (c) the conditions under which transactions powers and is void. financed by the EAGGF are carried out and checked.

Finally, pursuant to Article 9(3), the Council, acting by a qualified majority on a 5. In its defence, the Commission has raised proposal from the Commission, is, as far as an objection of inadmissibility, contending necessary, to lay down general rules for the that the Internal instructions at issue are not application of Article 9. a measure which can be challenged under

Article 173 of the Treaty. In the alternative, 7. The Court has frequently been called on it asks the Court to dismiss the application. to consider the scope of the term 'acts' in Article 173. It is perhaps worth noting that the Court's decisions in that regard have related primarily to the second paragraph of Admissibility Article 173 (and the second paragraph of Article 33 of the ECSC Treaty) and therefore have been concerned to identify the elements which allow a particular measure adopted by the institutions to be 6. The major part of the present dispute is classified as a 'decision' within the meaning devoted to consideration of the admissibility of the Treaty. of the application. The problem is, of course, to determine whether the disputed Internal instructions can be regarded as a measure against which an action may be brought under Article 173. 3 For example, in Case 54 / 65 , the Court stated that 'a decision must in fact appear as a measure emanating from the competent It is well known that, under the first authority, intended to produce legal effects paragraph of Article 173, proceedings may and constituting the culmination of a be instituted against Council and procedure within that authority, whereby Commission acts other than recommen­ the latter gives its final ruling in a form dations and opinions. The wording used from which its nature can be identified'. gives the impression that the word 'acts' refers only to the binding measures mentioned in Article 189. And indeed, Articles 173 and 189 form a coherent whole, so that the word 'act' appearing in Article 173 cannot extend the jurisdiction of the It is clear from that statement that, while Community Court to enable it to examine taking account of the substance of the act, manifestations of will which do not take the the Court clearly specified the formal form of regulations, directives or decisions. elements necessary, or in any event sufficient, for the act in question to be regarded as a measure of a decision-making nature against which proceedings may be However, in principle the classification of instituted. measures is a matter for the Court, irres­ pective of the nomen iuris attributed to them. That principle is well established in the law of most of the Member States and has been reiterated on numerous occasions by this Court, particularly in relation to the 8. However, the relevant decisions in the need to ensure proper judicial protection for context of the EEC Treaty are less attentive private persons. In short, the judicial to the formal criteria and more concerned assessment of an expression of will is based to ensure the widest possible protection for on the substance of the measure in question, persons to whom administrative measures its content and the effects which it produces; less important, from that point of 3 — For ei de Chãtillon v High Authority [1966] ECR 185; similarly, judgment in Joined Cases 23/63, 24/63 and view, is the form chosen for it. 52/63 Utinei Henricotv High Authority [1963] ECR 217.

In Case 60 /81 , 5the Court stated in more general terms that 'any measure the legal Of particular importance in this connection, effects of which are binding on, and capable it seems to me, is the expression 'intended of affecting the interests of, the applicant by to have legal effects', an expression which is bringing about a distinct change in his legal used with perhaps less force in the judgment position is an act or decision which may be in Case 114/86, 8where the Court stated the subject of an action ... for a declaration that 'an action for annulment may not be that it is void. However, the form in which brought if the act in question is not such acts or decisions are cast is, in intended to have legal effects', but which, in principle, immaterial as regards the question my view, clearly explains the difference whether they are open to challenge under between the effects to be attributed to an that article' (paragraph 9). act which is individual in its scope and one which is of general and abstract application.

6 — In this context, particular importance attaches to the judgments establishing the standing of the European Parliament as a defendant: in Cases 230/81 Luxembourg v European Parliament [1983] ECR 255, 108/83 Luxembourg 9. Rarer, on the other hand, are the v European Parliament [1984] ECR 1945, 294/83 'Les Verts' occasions on which the Court has been v European Parliament [1986] ECR 1339 and 190/84 'Les Verts' v European Parliament [1988] ECR 1017. In all these called on to express its views on the term cases, the Court decided that an act of the European Parliament (such as a resolution) can also be the subject of an action where it is intended to produce legal effects 4 — Cimenteries v Commission [1967] ECR 75, particularly at vis-a-vis third parties. p. 91. 7 — Case 22/70 Commissions Council [1971] ECR 276. 5 — IBM vCommission[1981]ECR 2639. 8 — United Kingdom v Commissioni 1988] ECR 5289.

From that point of view, particular (a) it must produce legal effects which importance is to be attached not only to the change the legal situation of the aforesaid judgment in Case 54/65 but also addressees, 9 to a recent order made by the Court on 17 May 1989 11in which it treated the fact that the measure was not capable of having legal effects as a ground for the inadmissibility of (b) and it must be a definitive measure, in the application. At issue on that occasion particular in so far as an action may not was a telex message from the Commission be brought against procedural measures which gave an interpretation of the adopted in the course of the procedure Community provisions concerning aid for leading up to the final measure or the production of soya beans and was chal­ against a preparatory measure. 10 lenged by the Italian Government: the Court stated that it was 'not capable of producing legal effects' since 'none of the provisions of the aforesaid regulations 10. The abovementioned decisions of the adopted in this field confers on the Court, although without doubt attaching Commission the power to adopt decisions greater importance to the substance than to on their interpretation; the Commission the form of the measure in question, for the merely has the possibility, which is always purpose of protecting individuals, have not, open to it, of expressing an opinion which is it seems to me, given a firm answer to a not binding on the national authorities'. question which is, to a degree, preparatory in character: namely determination of the extent to which the act is capable of producing legal effects in the presence or 11. In view of the foregoing considerations, absence of a minimum of essential formal I believe that it is necessary first to requirements, regardless of the fact that, on establish — in the abstract, if need be — whether or not the contested 'Internal supra;; judgment in Case 9 — See Joined Cases 8/66 to 11/66, supra instructions' are capable of having legal 53/85 AKZO v Commission[1986] ECR 1965; and Case supra,, paragraph 12. 1 H / 86 , supra 10 — Case 54/65, supra supra,, at p 195; Case 60/81, suprasupra,, 11 — In Case 151/88 Italian Republic v Commission [1989] paragraph 9. ECR 1255.

Bearing that in mind, I ask myself: is a measure described by the institution which 12. The measure with which we are issued it as an internal measure, which concerned is entitled 'Internal instructions', satisfies none of the conditions for it to rank is described as such in its defence by the as a binding measure, nevertheless binding institution which adopted it, has no legal on third parties or at least enforceable basis, does not bear the signature of any against them where it calls for them to Member of the Commission, was published discharge certain obligations? And does a in the C series of the Official Journal, and is measure like the one at issue in this case, apparently addressed solely to the officials which is without doubt internal as far as its of that institution. form is concerned, have to be examined with respect to its substance, its purpose and its content, for a decision to be made as to whether proceedings can be brought against It might of course be stated that the it? arrangements for making it public were excessively — and unusually—formal and solemn for it to rank as an internal measure. It is clear, however, that the Commission is I am, inclined to say that it does not. I free to adopt such methods as it wishes to would not rule out the possibility that a publicize a purely internal measure. measure of the type at issue here may in any Furthermore, publication in the Official event not be capable of being binding on Journal is not decisive as regards the delimi­ third parties, regardless of the fact that it tation of the problem: even if the measure may be seen as being intended to create had not been published, we would be obligations even for those to whom it is not confronted by the same questions apparently addressed or at least to have an concerning its nature, as has happened on effect on their sphere of interests. All that 12 other occasions (such as in Case 114/86 ). can be said is that the Commission may think what it likes concerning the sampling of products: whether mistaken or correct, its view is still, as in the case of Italy v 13. That having been said, I would first of Commission, an interpretation of Article 9 all reiterate that internal measures are of Regulation No 729/70, expounded to its measures which take effect within the own officials and not binding on the confines of the authority which issued them: national authorities and economic agents. either in so far as they govern relations between a superior authority and subor­ dinate departments, or are guidelines to be But the fact is that the Internal instructions 12 — Supra, paragraph 9. at issue present no external formal element

15. Any doubts which might arise in that It follows that, even if it appeared from the regard — from which I do not claim to be content of the contested measure that it was immune — are not insuperable. intended in any way to bind third parties, it could not in fact bind them or affect the legal position of Member States or economic agents. In particular, I do not consider that such a solution conflicts with the requirement of providing adequate judicial protection for private persons (and the Member States). In other words, a Member State cannot be The problem can be resolved ab initio in so made subject to an obligation or legally far as the Commission could not in any affected by a measure which, like the one at circumstances or on any basis call for the issue here, fulfils none of the essential fulfilment of obligations which, deriving as formal requirements of a binding act and, they do from the measure in question, are moreover, emanates from an institution non-existent as far as third parties are which has no powers to adopt binding concerned. Moreover, any refusal on the

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16. It is not as if there is no specific In the present case, however, the absence of precedent for the view expressed here, in the minimum formal requirements for a the history of the case-law of the Court: binding measure, together with the lack of 14 any powers on the part of the institution there is the judgment in Case 20/58, concerning service instructions, in particular concerned to lay down rules in the area a letter sent by the High Authority to an concerned by means of a regulatory auxiliary agency and published in the measure, means a priori that the measure Official Journal. On that occasion, after cannot have legal effects for third parties: to stressing that the High Authority had not such an extent that its content, from which

13 — Judgment in Case 74/69 Hauplzollamt Bremen v Krohn 15 — Joined Cases 8/66 to 11/66, supra. Even more significant in that regard — even though it was given in proceedings [1970] ECR 451, paragraph 9. concerning the Staff Regulations — is the judgment in 14 — Phoenix-Rheinrohrv High Authority [1959] ECR 75; on the Joined Cases 316/82 and 40/83 Nelly Kohler v Court of same date and to the same effect, Joined Cases 32/58 and Auditors [1984] ECR 641, in which the Court held an 33/58 [1959] ECR 127. action against an oral decision to be admissible.

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it is claimed that obligations arise for third (or entirely void, if you prefer) as regards parties, becomes legally irrelevant. third parties to whom it does not purport to be addressed, and any obligation arising exclusively from the measure is in any event unenforceable against them.

19. That having been stated, in case the Court does not adopt the solution I have proposed and decides that it must assess the However, whilst I cannot ignore the views measure at issue solely by reference to its expressed by the Court in its aforesaid order content, disregarding in their entirety the in Italy v Commission and also earlier in the elements which unequivocally render it judgment in Case 54/65, I consider that, in classifiable as an internal measure, I a case as extreme as this one, a lack of consider it necessary also to examine the powers may be of some importance in content of the contested measure in order to relation to admissibility itself — an approach establish whether, as the applicant also adopted in certain French and Italian maintains, it in fact pursues the aim of cases in the field of administrative law. In producing legal effects for third parties, and addition, in the present case the lack of whether therefore an action can be brought powers is not the only important aspect but against it. is accompanied by a total absence of the formal requirements which must be fulfilled if a measure is to have effects for third parties; in other words, the lack of powers is not a decisive factor and the analysis as 20. The Commission contends in the first to whether the measure is capable of place that, even from the substantive point producing legal effects vis-à-vis third parties of view, the instructions at issue are a mere may well disregard it. In that connection, internal measure in so far as they have no particular importance attaches to the fact legal or financial effect whatsoever on the that the measure has no apparent addressees Member States and economic agents. In other than Commission officials and it is support of that view, it states that, on the only the substantive content of the measure basis of the Internal instructions, the that implies the involvement of the Member expenses arising from the sampling are States and economic agents in the industry borne by it, the quantities taken are limited concerned. to the minimum necessary and the unused samples are returned to the owner (pp. 3 and 4 of the defence). It considers the measure to be merely declaratory, having In the second place, in the present case been adopted for the use of its officials in there is an absolute, rather than a relative, order to avoid differing practices in carrying lack of powers, with the result that the out the physical operations to which the measure may even be seen as non-existent instructions relate. Thus, the measure does

22. In the first place I would point out that the instructions at issue are not 'traditional' Those instructions, which relate to certain internal instructions (although they were 'administrative and technical procedures . . . described as such by the Commission at the to be followed by Commission officials', hearing): that term is usually employed to provide in particular for a right of access for describe a mere internal measure which Commission officials to a number of estab­ takes effect only within the confines of the lishments, of which a non-exhaustive list is body which adopted it, in so far as it deals given, for the purpose of 'taking samples or with relations between a superior authority having samples taken' (point 1). The and those below it, thus having no Commission officials are required to inform importance to private persons outside that the Member State concerned at least 48 body. hours before sampling is undertaken, but are not obliged to provide a list of the establishments to be checked (point 3).

It must, I think, be acknowledged that the Internal instructions in question are Moreover, the officials 'may request' such intended to produce external legal effects. information as they consider necessary The fact that Commission officials must concerning the method of production and apply the instructions makes it difficult, in testing methods of the products being my view, to reach any other conclusion. Let inspected (point 8). me explain: the obligation to take samples

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FRANCE v COMMISSION

As regards the abovementioned 'provisions' According to the literal wording of Article 9 of points 2 and 7, I must confess that I find the Commission does indeed appear to have it difficult to interpret them as mere service the power to carry out inspections itself, instructions addressed by the Commission to acting through its officials, but the text says its officials. The logical, as opposed to legal, nothing about sampling the products and reason for which a measure which excludes any compensation for damage could 16 — Judgment in Case 22/70 Commission v Council,suprasupra It is possibly be regarded as not addressed also worth noting that the application in that action was also to those who suffer the damage, but merely brought under the first paragraph of Article 173 On that occasion the Court took the term "acts" to include Council to those who cause it, is a mystery. The proceedings relating to the negotiation and conclusion of an agreement (the proceedings in question laid down rules Commission's representative stated at the of conduct and included the adoption of procedural hearing that the expenses (borne by provisions)

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OPINION OF MR TESAURO —CASE C-366/88

analysing the samples. Moreover, the independent sampling by the Commission. Commission's inspections are expressly By virtue of that interpretation, of course, intended to verify those carried out by the the 'information' includes samples. Member States, a fact confirmed by the However, since it is still the Member States general philosophy underlying the system which are to 'make [the information] of inspections, which is apparent in, foi available', it is clear that the inspections, the example, the eighth recital to Regulation information and also the samples are No 729/70, which indicates the reasons on covered by a power and a duty on the part which Article 9 thereof is based. of the Member States; and that the Commission, far from having any inde­ pendent power in that regard, must confine itself to checking due compliance by the Member States with their obligations.

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FRANCE v COMMISSION

sampling, although representing one of the confers on it the power to adopt factors used in determining financial implementing rules under one of the penalties, should not be expressly provided procedures provided for in the 'comitology' for and regulated in the manner and in decision (Article 2(1)). accordance with the powers specifically and validly conferred.

26. Further confirmation of the foregoing, although in a specific sector and thus in a partly different context, can be found in a comparison of Council Regulation (EEC) The methods adopted (both for sampling No 2048/89 of 19 June 1989 laying down and for analysis of the samples) must be general rules on controls in the wine known in advance to the economic agents 18 sector with the Commission proposal subject to control and, obviously, to the 19 leading to it. In the latter, provision was Member States, inter alia because national made for the Commission officials them­ control procedures (imposed by Community selves to be empowered to take samples legislation itself in Article 8 of Regulation (Article 6(3)) and for the Commission to be No 729/70) may conflict with the empowered to adopt the necessary detailed procedures adopted at Community level; in rules for application (Article 16). In Regu­ particular, ad hoc regulations would be an lation No 2048/89, both those provisions appropriate means of eliminating, or in any have disappeared; by contrast, it is the event limiting, a source of disputes deriving Member States which are allowed, at the from the inevitable challenging of results by request of the Commission, to take the the Member States. samples (Article 12).

check is particularly important in this case intended to pave the way for the final since the Commission, in support of its decision'. objection of inadmissibility, contended that in line and by analogy with what the Court 20 has held in Case 60/81 and in Case 21 114/86, the instructions are in the nature of a preparatory measure and therefore are not acts of a kind which may be challenged. 30. Nevertheless, in the Commission's view it is a measure which, in so far as it is a prelude to the adoption of individual decisions or conduct of a particular kind, does not damage any interests and therefore cannot be challenged as such. Moreover, the legal basis of the subsequent individual 29. Essentially, the Commission's argument decisions — the only measures that would is that the defendant's action is premature: be harmful — is Article 9 of Regulation No an action for annulment can not be brought 729/70 and not the contested Internal against the Internal instructions but could instructions. Hence the reference to the be brought against the subsequent individual judgment in Case 114/86. decisions to take and analyse samples.

20 — Supra, paragraph 21. 22 — Supra, paragraph 10. 21 — Supra, paragraph 13. 23 — Supra, paragraphs 13 and 14.

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FRANCE v COMMISSION

Rather than a preparatory measure, it seems quite apart from anything else, it does not to me that in the present case one may seem to me to be consonant with the speak of an essentially internal measure. requirements of keeping proceedings to a According to a view which is also familiar in minimum, of legal certainty or of the administrative law, directions given by a uniform application of Community law. In superior to his subordinates, which are any event, the result would be to cast doubt intended to guide their conduct in a upon the possibility of challenging any regu­ particular sector and leave them a margin of lation or any measure of general rather than discretion, are not capable of actually individual scope. harming interests: only a measure which duly gives effect to them can be challenged.

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OPINION OF MR TESAURO — CASE C-366/88

Conclusions

In short, I propose that the Court declare the application inadmissible, in so far as the contested measure fails to satisfy the essential formal requirements for it to constitute a binding measure; the parties should bear their own costs in view of the uncertainty to which the measure itself inherently gives rise regarding the possi­ bility of its being challenged by a Member State.

If the Court should nevertheless consider itself bound to appraise the content of the contested measure, I propose that it declare the application admissible, annul the measure by reason of the Commission's complete lack of powers and order the Commission to pay the costs.

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