T-100/94

M. Vogiatzoglou exagogikos oikos kapnon AE,

Diethnis Kapniki-Georgios Allamanis AE,

Exelka Emporikai kai Viomichanikai Epicheiriseis AE,

companies incorporated under Greek law, established in Thessaloniki, Greece, rep­ resented by Eleni Metaxaki, of the Athens Bar, with an address for service in Lux­ embourg at the chambers of Aikaterini Thill-Kamitaki, 4 Rue de l'Avenir,

applicants,

* Language of the case: Greek.

Commission of the European Communities, represented by Maria Kontou- Durande, of its Legal Service, acting as Agent, with an address for service in Lux­ embourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

A P P L I C A T I O N for partial annulment of Commission Regulation (EC) N o 3477/93 of 17 December 1993 concerning the agricultural conversion rates to be applied in the tobacco sector (OJ 1993 L 317, p. 30),

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MICHAILIDIS AND OTHERS ν COMMISSION

T H E C O U R T O F FIRST INSTANCE O F T H E E U R O P E A N C O M M U N I T I E S (Second Chamber),

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2 Under Article 3 of Regulation N o 727/70, the premiums were to be paid to first purchasers of leaf tobacco, provided that they had paid at least the intervention price to the producers and that the raw tobacco had been brought under supervi- sion. For the purposes of applying that provision, Regulation (EEC) N o 1726/70 of the Commission of 25 August 1970 on the procedure for granting the premium for leaf tobacco (OJ, English Special Edition 1970 (II), p. 587) introduced (Article 1) a system of supervision at the stage of first processing and market preparation enabling checks to be made at the beginning and end of those processes. The sys- tem included (Article 2(1)) a 'premium certificate' the object of which was to sup- ply proof that leaf tobacco harvested in the Community had been brought under supervision in the Member State issuing the certificate.

3 Given that no definitive right to the premium accrued unless the tobacco delivered had been processed, the final amount of the premium could only be calculated at the time when the tobacco left the place in which it had been under supervision. Until 1990 there was no fixed time by which tobacco must leave the place of supervision, with the result that several years could elapse before it did so.

4 Later, Council Regulation (EEC) N o 1329/90 of 14 May 1990 amending Regula- tion N o 727/70 (OJ 1990 L 132, p. 25) limited to four years the period during which the processing undertaking could withdraw the tobacco from supervision. Article 3(1)(iv) of Regulation N o 727/70, as amended by Regulation N o 1329/90, provided that the premium was to be granted only to purchasers who provided proof before the expiry of a period of four years following the year of harvest that the tobacco had been sold for incorporation into manufactured products or exported to third countries.

'The right to the premium shall accrue as soon as the tobacco [...] leaves the place in which it was under supervision.

The event giving entitlement to the premium [...] shall be considered to have occurred on that date.'

8 Under Article 7(1) of the same regulation, the premium (expressed in ecus) fell due as soon as the right to it accrued and was paid in the Member State which issued the premium certificate.

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9 The result of the application of those different provisions was that if, between the date on which the premium was advanced and the date on which the premium was due, that is to say the date on which the tobacco left supervision, the national cur- rency had been devalued, the undertaking responsible for processing received, when the tobacco left supervision, a supplementary payment corresponding to the difference between the value of the premium converted into national currency at the rate applicable at the time the advance was paid and the same amount con- verted at the rate applicable when the tobacco left supervision.

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competent body against presentation of the relevant documentary proof. Thus the time lapse involved in the payment of premiums, which characterised the old sys­ tem, disappeared.

1 3 However, because the repeal of Regulation N o 727/70 by Article 28 of Regulation N o 2075/92 took effect only from the 1993 harvest onwards, Regulation N o 727/70 continued to apply to earlier tobacco harvests falling within the description contained in Article 3(1) and (2). Given the four-year 'marketing period', that con­ tinued to be the case until 1997 when the original common organisation of the markets came to a definitive end. In respect of harvests prior to 1993, processing undertakings thus continued to be entitled to an advance of the premium when the tobacco was brought under supervision and the final premium only became pay­ able once the tobacco left supervision after processing. The monetary conse­ quences arising from the lapse of time thus, in principle, also persisted.

1 4 In those circumstances, the Commission adopted Regulation (EC) N o 3477/93 of 17 December 1993 concerning the agricultural conversion rates to be applied in the tobacco sector (OJ 1993 L 317, p. 30, hereinafter 'the contested regulation' or 'Regulation N o 3477/93').

15 The contested regulation introduced the principle of fixed dates for the conversion into national currency of the various grants of aid and premiums provided for in the new common organisation of the market.

19 The second paragraph of Article 7 states that the contested regulation applies with effect from 1 July 1993.

20 The contested regulation was adopted on the basis of Council Regulation (EEC) N o 3813/92 of 28 December 1992 on the unit of account and the conversion rates to be applied for the purposes of the common agricultural policy (OJ 1992 L 387, p. 1), which modified the preceding agrimonetary system, with a view to the cre- ation of the internal market on 1 January 1993.

21 Article 6(1) of Regulation N o 3813/92 adopts the principle, already recognised in the preceding agrimonetary system, that the agricultural conversion rate which applies to a price or specific amount is the one which prevails at the time when the operative event occurs, that is to say 'the event whereby the economic objective of the operation is attained'. Article 6(2) nevertheless permits the Commission to decide upon a specific operative event for the agricultural conversion rate different from the general operative event referred to in Article 6(1).

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22 Article 13(1) of Regulation N o 3813/92 provides that, where transitional measures prove necessary, such measures are to be adopted by the Commission and are to remain applicable for the period strictly necessary to facilitate the introduction of the new arrangements.

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rate in force at the time when the tobacco is removed from supervision. Because of the continuing depreciation of Greek currency as against the ecu, 'freezing' the agricultural conversion rate thus causes the applicants considerable harm.

Procedure

26 By application lodged at the Registry of the Court of First Instance on 11 March 1994, the applicants brought the present action.

27 By order of 6 October 1994, the President of the First Chamber, Extended Com- position, granted-the Hellenic Republic leave to intervene in the proceedings in support of the form of order sought by the applicants.

32 At the request of the Court of First Instance, between 5 and 16 February 1998, the parties submitted their observations on the possible implications for the present action of the judgment in Moskof.

33 After arguing that the present action is inadmissible, the Commission expressed the view that, in Moskof the Court of Justice had, in substance, adopted a position in relation to all the grounds relied upon equally by the applicants in seeking the annulment of the contested regulation. The defendant inferred from that that the present action must, in any event, be dismissed as unfounded.

34 The Hellenic Republic also took the view that the Court of Justice has already answered the questions of law raised before the Court of First Instance. It leaves it to the Court of First Instance to decide what course the present proceedings should take.

35 The applicants have criticised, from various viewpoints, the findings of fact made and the legal inferences drawn by the Court of Justice in Moskof.

36 By decision of the Court of First Instance of 9 June 1998, adopted in accordance with Articles 14 and 51 of the Rules of Procedure, the present case was referred to the Second Chamber, composed of three Judges.

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— uphold the action for annulment;

— order the Commission to pay the costs.

39 The Commission contends that the Court should:

— declare the action inadmissible, or, in the alternative, unfounded;

— order the applicants to pay the costs.

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— the tobacco therefrom had not been removed from supervision by 1 July 1993,

— the contracts had already been registered with the competent national authori­ ties and

— the advances on the premiums have already been paid,

the Commission stresses that it has no knowledge of those contracts and, more­ over, need have no knowledge of them in order to manage the common organisa­ tion of the market.

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44 Lastly, the Commission observes that, even if the category of processing undertak­ ings affected by the contested regulation had definitively closed at the time when that regulation was adopted, it would nevertheless include practically all Commu­ nity tobacco processing undertakings that might have entered into European cul­ tivation contracts. The fact that the number of traders is limited does not suffice to identify them individually, since otherwise it could be argued that any measure of the kind at issue concerns, in the abstract, a particular category of traders, be it a large or small one. Taking the argument to extremes, one possible conclusion would be that almost all common agricultural policy regulations are of individual concern to the farmers affected by them, of whom the administration is, at all times, aware, either because they appear in the registers or because they have actu­ ally applied for assistance under the various mechanisms implementing that policy. The fact that a party can be identified individually — and any person might be in that position — in no way corresponds to the particular interest which is required under Article 173 of the Treaty.

45 The applicants, supported by the Greek Government, maintain, on the contrary, basing their argument on the case-law of the Court of Justice (in particular, Joined Cases 41/70, 42/70, 43/70 and 44/70 International Fruit Company and Others ν

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46 O n this last point, the applicants and the intervener point out that Article 5 of the contested regulation concerns only those processing undertakings whose tobacco from the 1989, 1990, 1991 and 1992 harvests had not been removed from supervi­ sion by 1 July 1993. Those undertakings therefore form a restricted, unchanging group which could not be expanded once the contested regulation had been adopted. Furthermore, they were known to the Commission when that regulation was adopted. In accordance with Regulation N o 1726/70, they were in possession of premium certificates drawn up when the tobacco was brought under supervi­ sion, which stated precisely the quantities of tobacco, the year of the harvest and the name of the processing undertakings. Thanks to those premium certificates and the European cultivation contracts concluded with producers and then registered, the Commission would have known exactly, for all harvests prior to 1993, the amount of tobacco brought under supervision and the persons who brought it under supervision, the amount of tobacco removed from supervision, and the amount of tobacco still subject to supervision arrangements at the time when the contested regulation was adopted.

47 The applicants and the intervener infer from this that the legal position of the per­ sons to whom the contested regulation is addressed has been affected on account of a situation of fact which differentiates them from all other undertakings pro­ cessing tobacco from harvests prior to the 1993 harvest. The Commission was aware of that special situation, that is to say the limited number, size and identities

Findings of the Court

49 Under Article 113 of the Rules of Procedure, the Court of First Instance may, when ruling in the circumstances set out in Article 114(3) and (4) of the Rules, at any time and of its own motion, consider whether there exists any absolute bar to proceeding, including, according to settled case-law, a failure to satisfy the condi- tions governing admissibility laid down in Article 173 of the Treaty (Case

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C-246/95 Coen [1997] E C R I-403, paragraph 21 and the order in Case T-181/97 Meyer and Others ν Court of Justice [1998] ECR-SC II-481, paragraph 10 et seq.).

50 In the present case, the Court of First Instance is of the view that it has sufficient information from the documents before it to rule on the admissibility of the present action under the fourth paragraph of Article 173 of the Treaty, without opening the oral procedure.

and fix the conversion rate between the ecu and the various national currencies which is to be applied to the premium granted in respect of that product. As a corollary, they repeal the conflicting provisions of the prior system. The contested provisions are drafted in general and abstract terms. They do not mention the applicants by name and are not addressed to particular traders such as the appli­ cant companies.

55 The contested regulation thus appears to be a measure having general application, within the meaning of Article 189 of the Treaty. It applies to objectively deter­ mined situations and produces its legal effects with respect to categories of persons envisaged in the abstract (see, to this effect, the order in Case T-107/94 Kik ν Council and Commission [1995] E C R II-1717, paragraph 35, and the case-law cited therein), namely all traders active in the tobacco sector who, within the Commu­ nity, have brought under supervision tobacco from harvests prior to the 1993 har­ vest and whose tobacco had not been removed from supervision by 1 July 1993.

56 Nevertheless, in certain circumstances, even a legislative measure which applies to the traders concerned in general may be of individual concern to some of them provided that it affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons (Codorniu ν Council, paragraphs 19 and 20).

57 It is therefore appropriate to consider whether the applicants are individually iden­ tified by the regulatory provisions at issue.

identities of the persons to whom a measure applies at any given time may be ascertained more or less precisely is not sufficient to call into question the general application, and thus the legislative nature, of that measure and by no means implies that it must be regarded as being of individual concern to those persons as long as it is established that the measure is applicable as a result of an objective legal or factual situation which the measure defines with reference to its purpose (Case 6/68 Zuckerfabrik Watenstedt ν Council [1968] E C R 409, at 415, Case 64/69 Compagnie Française Commerciale et Financière ν Commission [1970] E C R 221, paragraph 11, Case 101/76 Koninklijke Scholten Honig ν Council and Commission [1977] E C R 797, paragraph 23, and the orders in Case C-131/92 Arnaud and Oth­ ers ν Council [1993] E C R 1-2573, paragraph 13, Case C-168/93 Gibraltar and Gibraltar Development ν Council [1993] E C R I-4009, paragraph 12, and Case C-409/96 Ρ Sveriges Betodlares and Henrikson v Commission [1997] E C R 1-7531, paragraph 37).

59 In the present case, it has not been established that the contested provisions, which fix the conversion rate between the ecu and national currencies, were aimed spe­ cifically at the applicant companies. O n the contrary, it is apparent that the eco­ nomic operators concerned form a relatively mixed group which, in accordance with Article 3 of Regulation N o 727/70, is comprised of purchasers of tobacco, that is to say, trading companies, and producers who bring their own tobacco under supervision. Furthermore, it is clear from Special Report N o 8/93 of the Court of Auditors, to which the applicants refer, that those two categories of operators exist in all seven Member States of the Community which produce leaf tobacco, namely Belgium, Germany, Spain, France, Italy, Greece and Portugal. Consequently, there are seven distinct relationships between the ecu and national currencies.

61 The applicants argue that Greek tobacco producers are particularly badly affected by the contested provisions. O n this point, it must be acknowledged that traders established in a country with a less stable currency, such as Greece or Italy at the material time, may encounter difficulties, whilst traders established in a country with a strong currency could even benefit from that fact if the conversion rate applicable on 1 July 1993 is more favourable than the rate prevailing on a later date when their tobacco is actually removed from supervision. Nevertheless, the fact that the contested provisions may have different material effects for the various persons to whom they apply is not in itself inconsistent with their legislative nature if that situation is objectively determined (Koninklijke Scholten Honig ν Council and Commission, paragraph 24, and Sveriges Betodlares and Henrikson v Commission, paragraph 37).

62 Given that the provisions at issue in the present case concern different categories of persons and different monetary conversion situations, they cannot be regarded as a bundle of individual decisions in the sense contemplated in the judgments in Inter­ national Fruit Company and Others v Commission (paragraph 21) and Weddel v Commission (paragraph 23), on which the applicants rely. It should be observed that those judgments refer to specific situations concerning individual requests for import licences, and that the regulations at issue in those cases were adopted in response to those requests. In the present case, the adoption of the transitional regulation at issue was not based on the receipt by the Commission of any request from the applicants. Consequently, the two abovementioned judgments are irrel­ evant to the resolution of the present dispute.

66 The applicants also rely upon the judgment in Codorniu ν Council. In that judg­ ment, the Court did indeed hold that a legislative provision may be of individual concern to certain traders in so far as it adversely affects their specific rights (see the order in Case C-10/95 Ρ Asocarne ν Council [1995] E C R 1-4149, paragraph 43, and the judgment in Case T-482/93 Weber ν Commission [1996] E C R II-609, para­ graph 67). In the present case, however, the applicants had not, before the adoption

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of the contested regulation, acquired any right to have a particular conversion rate applied. The conversion rate was a function solely of the monetary evolution of the drachma and was thus dependent on movements in the markets and any rel­ evant measures taken by the competent Greek authorities.

67 Therefore, the facts that the applicants are in possession of premium certificates, that they have signed registered European cultivation contracts and that the Com­ mission has already paid them advances on premiums do not serve to differentiate them further. Those three circumstances, far from conferring any specific mon­ etary rights, are part of the normal commercial activity of any undertaking market­ ing tobacco under the arrangements for the common organisation of the market.

68 Lastly, the judgment in Extramet Industrie ν Council does not assist the applicants' case. In the case that gave rise to that judgment, the application, made against a regulation introducing anti-dumping duties, was held to be admissible on the ground that the applicant had established the existence of a set of factors constitut­ ing a special situation, because of his very particular economic position and his situation vis-à-vis competitors (paragraph 17). There are, however, no comparable special factors in the present case.

Costs

73 Under Article 87(2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs, if they have been applied for in the successful party's pleadings. Since the applicants have been unsuccessful, they must be ordered jointly and severally to pay the costs incurred by the Commission, as applied for by the Commission.

74 In accordance with Article 87(4) of the Rules of Procedure, the Hellenic Republic, as intervener, is to bear its own costs.

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O n those grounds,

Registrar President

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