T-298/94

Council of the European Union, represented by Arthur Bräutigam and Jan-Peter Hix, of its Legal Service, acting as Agents, with an address for service in Luxem- bourg at the office of Bruno Eynard, Director-General of the Legal Affairs Direc- torate of the European Investment Bank, 100 Boulevard Konrad Adenauer,

defendant,

supported by

Commission of the European Communities, represented by Gerard Rozet, of its Legal Service, acting as Agent, within an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

intervener,

* Language of the case: French.

having regard to the written procedure and further to the hearing on 11 July 1996,

gives the following

Judgment

1 The basic regulation laying down the regime for the production of potato starch is Council Regulation (EEC) N o 1766/92 of 30 June 1992 on the common organiza- tion of the market in cereals (OJ 1992 L 181, p. 21; hereinafter the 'basic regu- lation'), which also covers potatoes which may be used instead of cereals for the production of starch. Taking the view that specific constraints, especially of a structural nature, on the starch sector warranted a corrective measure in favour of that sector, the Council adopted, pursuant to Article 8(4) of the basic regulation, Council Regulation (EEC) N o 1543/93 of 14 June 1993 fixing the amount of the premium paid to producers of potato starch during the 1993/94, 1994/95 and 1995/96 marketing years (OJ 1993 L 154, p. 4). That regulation provided that, for

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4 The Member States are required to allocate the quotas for the 1995/96, 1996/97 and 1997/98 marketing years among undertakings producing potato starch. The quotas are to be allocated to undertakings which have received a premium, and are to be calculated on the basis either of the average quantity of starch produced in

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the 1990/91, 1991/92 and 1992/93 marketing years or the amount of starch pro- duced in 1992/93. When calculating those quotas, Member States must also take into account investments made by undertakings before 31 January 1994 with a view to the production of potato starch.

Facts and procedure

5 The applicant, Roquette Frères SA, operates two potato-starch plants in France. In the 1993/94 marketing year it received a premium per tonne of starch produced in accordance with Regulation N o 1543/93. As a result, it was also entitled to a quota under the quota system established by Regulation N o 1868/94.

io The Commission's statement in intervention on admissibility was lodged on 26 April 1995.

1 1 By order of 25 October 1995, the Fourth Chamber of the Court decided that the objection of inadmissibility should be considered concurrently with the substance.

i2 O n 24 January 1996 the Commission lodged a statement in intervention on the substance.

1 3 Upon hearing the report of the Judge-Rapporteur, the Court (Fourth Chamber) decided to open the oral procedure without any preparatory inquiry.

H Oral argument was heard from the parties at the public hearing on 11 July 1996, when they answered oral questions from the Court. O n this occasion, the appli- cant mentioned that it had also brought proceedings in the Tribunal Administratif (Administrative Court), Amiens, for the annulment of the French orders contain- ing provisions implementing the contested regulation, during which the Tribunal Administratif had been asked to make a reference to the Court of Justice pursuant to Article 177 of the EC Treaty for a preliminary ruling on the validity of the contested regulation.

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— declare the application inadmissible and, in the alternative, dismiss it as unfounded;

— order the applicant to pay the costs.

i7 The Commission, intervening, claims that the Court should:

— declare the application inadmissible and, in the alternative, dismiss it as unfounded.

Pleas and arguments of the parties

is The applicant puts forward in support of its claims two pleas for annulment alleg- ing, first, infringement of the principle of non-discrimination in that the special treatment given to Germany is not objectively justified and, secondly, infringement of the principle of proportionality in that the special treatment given to Germany is, at the very least, excessive.

21 It points out that in order for an individual to be regarded as directly concerned, the effects of a contested regulation must follow, necessarily and automatically, from the measure without the need for any subsequent, independent decision of a Community institution or of a State in the exercise of a discretionary power (see Case 69/69 Alean Aluminium Raeren and Others v Commission [1970] ECR 385 and Case 92/78 Simmenthal v Commission [1979] ECR 777).

22 In this connection, the Council observes that the individual quotas are not laid down directly by Regulation N o 1868/94 but fixed by the Member States when they make their discretionary choice of the applicable reference period, and that the choice of one reference period over the other may have considerable conse- quences for the levels of individual quotas, especially where there have been major changes in the quantities produced during the period taken into consideration, which is the case in Germany.

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23 In this context, the Council also points out that the Member States are obliged to take account of 'investments made by undertakings producing potato starch before 31 January 1994 which did not give rise to production in the reference period cho- sen by that State' (see Article 2(2) of the contested regulation).

26 As for the need for the measure to be of direct concern to it, it points out that in France the difference between applying one as opposed to the other of the two calculation methods laid down in the contested regulation is only 0.2%. Conse- quently, the French Government's discretion is practically non-existent and national implementation should be regarded as being purely automatic (see, in par- ticular, Case 113/77 7v"77V Toyo Bearing and Others v Council [1979] ECR 1185).

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27 It states that the provision of the contested regulation according to which invest- ments made before 31 January 1994 must be taken into account has no bearing o n the determination of individual quotas in France, since French starch producers have not carried out any investment.

30 The Commission goes on to reject the applicant's argument to the effect that it is individually concerned because it belongs to a closed group of traders whose indi- vidual situation influenced the content of the contested measure.

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3i It asserts that, as the Court of Justice has held, it is not the finding that there is a group of persons concerned which is relevant in order to decide whether or not the applicant is individually concerned, but rather the objective nature and the duration of the regulation at issue. It refers in this regard to the case-law of the Court of Justice according to which an act does not lose its character as a regu- lation 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 whom it applies at any given time as long as there is no doubt that it is applicable as the result of an objective situation of law or fact which it specifies and which is in harmony with its ultimate objective (see Zuckerfabrik Watenstedt v Council).

32 It adds that there must also be a causal link between the institution's knowledge of the applicant's situation and the measure adopted (see the Opinions of Advocate General Van Gerven in Case C-213/91 Abertal v Commission [1993] ECR 1-3177 and Case C-264/91 Abertal v Council [1993] ECR 1-3265).

36 The test for distinguishing between a regulation and a decision is whether or not the measure in question has general application, and it is applied by assessing the nature of the contested decision and in particular the legal effects which it is intended to produce or actually produces (see Case 26/86 Deutz and Geldermann v Council [1987] ECR 941, paragraph 7, and the orders in Case C-10/95 P Aso- carne v Council [1995] ECR 1-4149, paragraph 28, and Case C-87/95 P CNPAAP v Council [1996] ECR 1-2003, paragraph 33).

37 Nevertheless, it is possible that a provision which, as a result of its nature and scope, is general in character may be of individual concern to a natural or legal person where that person is affected by reason of attributes peculiar to him or by reason of factual circumstances differentiating him from all other persons and, as a result, distinguishing him individually in like manner to the addressee of a decision (see, for example, PUumann v Commission, at p. 107, and Codorniu v Council, paragraphs 19 and 20, and the order in Asocarne v Council, paragraph 43).

38 In this case the contested regulation has no feature enabling it to be classed as a decision taken in the form of a regulation. It is drafted in general, abstract terms and applicable in all the Member States, without any account being taken of the

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situation of individual producers. Its aim is to administer the whole Community potato-starch producing industry, as illustrated by the fact that the measures adopted were provided for by Regulation N o 1543/93, which provides that in the event that the production of the starch industry as a whole should exceed 1.5 mil- lion tonnes, the Council is to decide on what measures to take (see paragraphs 1 to 4 of this judgment).

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objective (see, for example, Zuckerfabrik Watenstedt v Council, at p. 415; the order in Case T-183/94 Cantina Cooperativa fra Produttori Vitivinicoli di Torre di Mosto and Others v Commission [1995] E C R 11-1941, paragraph 48, and the judgment in Weber v Commission, paragraph 64).

43 In this case, the applicant is indeed affected by the provisions in question by virtue of a situation objectively determined by the contested regulation which is in har- mony with its ultimate objective. The fact that the number of traders concerned is limited is due to the very nature of the system established by the regulation, that is to say the grant of Community aid, through the Member States, to starch manu- facturers which had benefited from previous Community measures. In this con- nection, it should also be noted, as the Council observed at the hearing, that such a situation is not exceptional in the context of the common agricultural policy.

44 It follows from the foregoing that the applicant is in an identical situation to any other starch undertaking which produced a quantity of starch in the 1990 to 1993 marketing years for which a premium was received. Accordingly, no particular attribute or factual circumstances differentiate the applicant from other traders in the same situation. It follows that the applicant is not individually concerned by the contested regulation.

45 Moreover, the Court notes that, since the applicant has challenged the French orders allocating it its individual quota pursuant to Regulation N o 1868/94 in the competent national court (see paragraph 14 of this judgment), that court may, if appropriate, refer a question to the Court of Justice for a preliminary ruling pursu- ant to indent (b) of the first paragraph of Article 177 of the Treaty, under which the Court of Justice has jurisdiction to rule on the validity and interpretation of acts of the institutions of the Community.

T H E C O U R T O F FIRST I N S T A N C E (Fourth Chamber)

hereby:

1. Dismisses the application as inadmissible;

2. Orders the applicant to pay its own costs and those of the Council;

3. Orders the Commission to bear its own costs.

Lenaerts Lindh Cooke