C-241/95

* Original language: French. 1 — Commission Regulation (EC) No 214/94 of 31 January 1994 laying down detailed rules for the application of Council Regulation (EC) No 130/94 with regard to the import 5. Traditional operators are defined in arrangements for frozen beef falling within CN code 0202 Article 2(a) of Regulation No 130/94 as and products falling within CN code 0206 29 91 (OJ 1994 L 27, p. 46). those who have effected imports into the 2 — Council Regulation (EC) No 130/94 of 24 January 1994 Community within the tariff quota over the opening and providing for the administration of a Commu­ nity tariff quota for frozen meat of bovine animals falling within CN code 0202 and products falling within CN code 0206 29 91 (1994) (OJ 1994 L 22, p. 3). 3 — Regulation (EEC) No 805/68 of the Council of 27 June 1968 on the common organization of the market in beef and veal 4 — Article 1(3) of Regulation No 130/94. (OJ, English Special Edition 1968 (I), p. 187). 5 — Article 2(a) and (b) of Regulation No 130/94.

I - 6702

THE QUEEN v INTERVENTION BOARD FOR AGRICULTURAL PRODUCE, EX PARTE ACCRINGTON BEEF AND OTHERS

last three years, whilst other operators are tonnes in 1992 and 150 tonnes in 1993; the defined in Article 2(b) as those who can beef imported or exported to third countries prove that they have engaged in trade with must not be subject to quotas. third countries, involving a minimum quan­ tity and for a period to be determined, in beef and veal other than that to which the import arrangements apply and excluding meat which is the subject of inward or out­ ward processing traffic.

7. The Commission is required by Article 4 of Regulation No 130/94 to adopt detailed rules for the application of the regulation by determining, in particular, the minimum quantity and the reference period referred to in Article 2(b) of Regulation No 130/94. 10. Article 2(2) of Regulation No 214/94 provides that companies arising from merg­ ers where each part has rights pursuant to 7 Article 1(1) shall enjoy the same rights as the companies from which they arc formed. The provision docs not apply to applications by other operators, as explained by the 8. This was done by means of Commission Commission in an information note Regulation No 214/94, Article 1(2) of which addressed on 5 February 1992 to all the lays down the conditions of eligibility for Member States regarding the corresponding other operators. The conditions are couched article in Commission Regulation (EEC) in the alternative, each applicant being required to prove either that he imported at least 50 tonnes of beef in 1992 and 80 tonnes 6 Commission observations, point 16 in 1993, or that he exported at least 110 7 — Thai is to say, those accorded to traditional operators.

I - 6703

OPINION OF MR LÉGER — CASE C-241/95

12. The companies are meat producers, wholesalers and traders based in Lancashire. The Slinger Group had an annual turnover in 1993 of approximately UK £35 000 000 and is thus a medium-sized company as far as the meat trade is concerned. 15. None met the eligibility criteria for the GATT quota until 1993, when 13 of them became eligible for the quota reserved for 8 — OJ 1991 L 350, p. 34. other operators.

I - 6704

THE QUEEN' v INTERVENTION BOARD FOR AGRICULTURAL PRODUCE, EX PARTE ACCRINGTON BEEF AND OTHERS

16. In 1994, those 13 companies qualified for nies exported less than that amount in 1993, traditional quota on the basis of the fact that so that the conditions required in 1994 for they had imported beef into the Community obtaining other operators' quota would not within the quotas (in this case the quota for have been met by those seven companies other operators) over the preceding three even if the export threshold had not been years, in accordance with Article 2(a) of raised. That is acknowledged by the appli­ Regulation No 130/94. cants in the main proceedings when they state that had they been authorized to rely on Article 2(2) of Regulation No 214/94, as requested in their earlier application to the Intervention Board, they would have reached the eligibility threshold.

17. In 1994 those 13 companies, together with the other 14, applied for non-traditional quota in order to increase their quota alloca­ tion.

I - 6705

OPINION OF MR LÉGER — CASE C-241/95

21. They claim that the damage they have (b) infringing the principle of propor­ suffered as a result of the application of the tionality; regulations amounts to UK £200 000.

(c) infringing the principle of legitimate expectations;

The questions referred for a preliminary ruling

(d) infringing the duty to give adequate reasons pursuant to Article 190 of the EC Treaty; and/or

(b) the guarantee referred to in the sec­ ond recital to Council Regulation (EC) No 130/94 of continuing access 25. In the case before us today there is no to quota by all interested operators indication in the documents in the file that within the Community?' the contested provisions of Regulation No 214/94 constitute a disguised decision against the members of the Slinger group directly and individually. On the contrary, they are addressed, in abstract and general terms, to unidentified persons, they apply in situations which are objectively defined and they concern the applicants in the main pro­ ceedings only in their objective capacity as A — Admissibility of the reference traders in the relevant sector in the same way as any other economic operator in the same situation. In the light of the information before the Court I consider that any action brought by the applicants in the main pro­ ceedings under Article 173 of the Treaty 2 would have been declared inadmissible. 1 23. The United Kingdom queries (without adopting a position on it, however) the admissibility of the questions, referring to the judgment of the Court of Justice in TWD Textilwerke Deggendorf, 9in which it was held that it would be incompatible with the principle of legal certainty to permit the 26. My view is therefore that the case-law addressee of a decision individually and cited is not applicable here and that the refer­ directly affected thereby to challenge the ence is admissible. validity of the decision before the national courts after he has failed to bring an action under Article 173 of the Treaty within the 10 11 — See niter alia Case C-354/87 Weddel v Commission [1990] proper time-limit. ECR I-3847, paragraphs 18 to 23, and Case C-309/89 Codorniu v Council [1994] ECR I-1853. paragraphs 19 to 22. 12 — Joined Cases 16/62 and 17/62 Confédération Nationale des Producteurs de France et Légumes and Others v Council 9 — Case C-188/92 [1994] ECR I-833. [1962] ECR 471 and Case C-213/91 Abertal and Others v 10 Paragraphs 25 and 26. Commission [1993] ECR I 3177, paragraphs 19 and 20.

I - 6708

THE QUEEN v INTERVENTION BOARD FOR AGRICULTURAL PRODUCE, EX PARTE ACCRINGTON BEEF AND OTHERS 4 34. It is therefore clear that the Commission genuine. 1 Secondly, the Council itself defined 'genuine operators' as being those has the power to adopt the measures at issue with a representative level of trade with third — a point which has not been challenged by 15 the applicants in the main action. countries. The applicants in the main pro­ ceedings conclude that raising the minimum exports to third countries which must be achieved in order to qualify for non- traditional quota would be justified only if there was found to be a significant increase 35. I would add that the Court has acknowl­ in exports of beef from the European Union edged that the Commission enjoys a wide to third countries. Lastly, the Council sought discretion in such matters. It has stated that to ensure equal and continuing access to '... since in the sphere of the common agri­ quotas for all interested operators. 16 cultural policy the Commission alone is able to monitor continually and closely trends on the agricultural markets and to act with urgency if the situation requires, the Council may find it necessary to confer on the Commission wide implementing powers (sec, in particular, Case 23/75 Rey Soda v Cassa Conguaglio Zucchero [1975] ECR 1279, paragraph 11). Wide powers of 32. I cannot subscribe to that analysis. implementation arc all the more justified in the present case in that they must be exer­ cised in accordance with the "management committee" procedure, which allows the Council to reserve its right to intervene (Rey 1 Soda, paragraph 13)'. 7

access by all interested operators within the claim the largest possible share of the non- Community to the quota'. The third recital traditional quota, these operators are adopt­ describes the means to be used to achieve ing an approach which is liable to disturb the that purpose and states that 'the arrange­ proper functioning of the scheme, to evade ments consist of the allocation by the Com­ the application of the rule laid down in mission of the quantities available to tradi­ Article 3 of Regulation No 214/94 and to tional operators and to operators engaging in undermine the principle that all interested trade in beef and veal; ... in order to ensure operators must have equal and continuing that the activities of the latter operators are access to quotas. genuine, only quantities of a certain size rep­ resentative of trade with third countries should be considered'. The statement of pur­ pose in the second recital in the preamble to Regulation 214/94 likewise indicates that the aim of the regulation is to be achieved by restricting access to the quotas to those 'who can demonstrate the genuine nature of their business and who apply for quantities of 40. Contrary to the assertions of the appli­ some significance'. cants in the main action, the Council does not appear to have sought to establish a link between the amounts or quantities deter­ mined by the Commission and trends in exports or imports with third countries. The third recital in the preamble to Regulation No 130/94 states merely that '... in order to ensure that the activities of the latter opera­ 38. In Weddel 18 the Court confirmed that tors (that is to say, other than traditional the aim of the import arrangements for beef ones) are genuine, only quantities of a certain in the context of the GATT tariff quotas was size representative of trade with third coun­ to guarantee equal and continuing access to tries should be considered', which means the quota for all interested operators, and that operators which have imported or criticized actions likely to disturb the opera­ exported significant amounts will qualify for tion of the scheme and to undermine its pur­ a quota (that is to say, will have the right to pose. import). Raising the threshold for exports to third countries appears to be an effective method of achieving the purpose set by the Council.

47. The Commission has ensured such con­ 43. The Court has held that 'where the tinuity of access to the quotas by allocating evaluation of a complex economic situation the largest part of the quota to traditional is involved, the Commission and the Man­ operators. In their case, regardless of the vol­ agement Committee enjoy a wide measure of ume of trade with third countries and pro­ discretion. In reviewing the legality of the vided that they prove that they have quali­ exercise of such discretion, the Court must fied for quotas during the last three years, confine itself to examining whether it dis­ they are assured the allocation of a quota. closes manifest error or constitutes misuse of Equal access to quotas is guaranteed by power or a clear disregard of the limits of its opening part of the quotas to new operators discretion on the part of that institution'. 20 and by the rule that no more than one appli­ 2 cation may be made by each applicant. 1

44. The Court's task is therefore to deter­ mine whether there was a manifest error in 48. The figures produced by the Commis­ the evaluation of the situation on the rel­ sion indicating the proliferation in applica­ evant market, whether the Commission tions (which increased by approximately selected a measure which was manifestly 78% between 1992 and 1993) have not been inappropriate for the purpose and whether challenged, any more than its analysis of the the measure chosen was necessary in order reasons for the increase. Conditions on the to achieve those purposes. Community market do not appear to have been such as to warrant a large increase in

51. Let us see, next, whether, as the appli­ cants in the main action maintain, the meas­ ure is manifestly inappropriate to the 54. I must conclude, therefore, that the measure adopted by the Commission does not breach the principle of proportionality 22 — Sec paragraph 39 of this Opinion. and that this plea must be rejected.

I - 6712

THE QUEENv INTERVENTION BOARD FOR AGRICULTURAL PRODUCE, EX PARTE ACCRINCTON BEEF AND OTHERS

The alleged breach of the principle of protec­ 57. The United Kingdom has observed that tion of legitimate expectations the way in which the applicants in the main action arranged their affairs was clearly inspired by a speculative approach and that the Slinger group clearly set out to take maximum advantage of the arrangements, an attitude which is not unlawful, any more than was the Commission's concern to employ effective means of combating that type of speculation. However, the Slinger 55. The applicants in the main action claim group should not minimize the risk inherent that the Commission could not raise the in any speculative endeavour. threshold for exports of beef to third coun­ tries in the way in which it did without breaching the legitimate expectations of the traders concerned. The Commission ought to have consulted them and to have informed them in good time that the Community leg­ islation was to be changed so that they could manage their finances effectively.

58. I consider the views of the United King­ dom and the Commission correct.

63. This plea must therefore be dismissed.

61. As the Commission stated in the obser­ vations to which I have already referred, those conditions were satisfied in this case. Inadequate statement of reasons

64. The applicants consider that the Com­ mission failed to fulfil its obligation to state 62. Premature announcement, especially reasons under Article 190 of the Treaty. before the end of the reference period, of the new eligibility criteria would have deprived the regulations of any useful effect. In such a case the 'speculating' group would merely redistribute the export certificates among the 65. However, the Court has invariably held companies specially constituted for the pur­ that 'the statement of the reasons on which pose before the end of the reference period, regulations are based is not required to taking care to abide by the new thresholds. specify the often very numerous and com­ Any prudent operator, in particular one who plex matters of fact or of law dealt with in participates regularly in the allocation of the regulations, provided that the latter fall quotas, is perfectly acquainted with the way within the general scheme of the body of in which the rules are drawn up. It is appar­ measures of which they form part' 26 and 25 ent both from the documents in the case that in order to satisfy the requirements of and the hearing that the Slinger group must Article 190 of the Treaty it is sufficient that be regarded as a particularly astute and dili­ the statement of reasons is 'appropriate to gent operator. Its management was aware not the nature of the measure in question. The only that the threshold might be changed but reasoning of the institution which adopted also when that was likely to occur. The the measure must be stated clearly and applicants in the main proceedings cannot unequivocally, so as to inform persons con-

68. The applicants claim that the adoption of Regulation No 214/94 did not comply with 66. Regulation No 214/94 satisfies those the procedure laid down by the Council requirements as regards the explanation of because, they maintain, the Management the reasons for raising the export threshold. Committee was consulted too late. Inter alia, the regulation refers expressly to Regulation No 130/94, which states the pur­ pose of the scheme and the general principles on which the tariff quota is to be adminis­ tered. The second recital in the preamble to Regulation No 214/94 underlines the need to ensure a smooth transition from the arrange­ 69. The United Kingdom and the Commis­ ments based on national administration to sion maintain that that argument is those administered by the Community, bear­ unfounded inasmuch as the applicants ing in mind the special aspects of trade in the acknowledge elsewhere that the consultation products in question; it also states that access took place and that the result is reflected in to the second part should be restricted to the seventh recital in the preamble to Regu­ operators able to demonstrate the genuine lation No 214/94. nature of their business and who apply for quantities of some significance. The fifth recital refers to the need for effective man­ agement and the prevention of fraud. Conse­ quently, we must conclude that the reasons which led the Commission to change the eli­ gibility criteria for operators seeking a share 70. I consider that this plea must indeed be of the second part of the Community quota rejected. were stated clearly and unequivocally.

75. The Court has held that applicants may not rely on a discrepancy between the mea­ sures adopted and the preparatory docu­ ments, reflecting the proposals which were submitted to the Management Committee, in order to challenge the lawfulness of a Com­ 30 mission regulation, stating that 'the infor­ mation contained in preliminary documents may not be elevated to the status of a rule of law on the basis of which criticism may be 28 directed at the decision which was ultimately 73. In Koster the Court defined the tasks adopted by the Commission in consultation of the Management Committee as 'to give with the Management Committee. No regard opinions on draft measures proposed by the may therefore be had to the conclusions Commission ... to ensure permanent consul­ which the applicants have drawn, as a means tation in order to guide the Commission in of quantifying the damage suffered by them, the exercise of the powers conferred on it by from a comparison of the proposals origi­ the Council and to enable the latter to sub­ nally put to the Management Committee stitute its own action for that of the Com­ with regard to the minimum price for the mission', although the Management Com­ 31 raw material and the processing costs'. mittee may never 'take a decision in place of the Commission or the Council'. The Court also stated that the Commission 'may adopt immediately applicable measures whatever the opinion of the Management Committee' 32 and that 'where the Committee issues a con­ 76. Similarly, it has held that the absence trary opinion, the only obligation on the of an opinion from the Management Com­ Commission is to communicate to the mittee has no effect on the validity of the Council the measures taken.' The Court con­ measures adopted by the Commission cluded that 'consequently, without distorting because, in the words of the Court, 'it is the Community structure and the institu­ only if the Commission adopts measures tional balance, the Management Committee which are not in accordance with the opin­ machinery enables the Council to delegate to ion of the Committee that those measures the Commission an implementing power of must be communicated to the Council. appreciable scope, subject to its power to Accordingly, the absence of an opinion by 29 take the decision itself if necessary'.

78. The second question seeks a ruling on The alleged breach of the principle of non­ the validity of Article 2(2) of Commission discrimination Regulation (EC) No 214/94 to the extent that it precludes companies arising from mergers where each part has rights pursuant to Article 1(2) of the regulation from com­ bining their past trading performance. 81. I may say straightaway that I do not consider that the principle of non­ discrimination was breached in this case. 79. The applicants in the main proceedings Article 2(2) of Regulation No 214/94 is a claim that by depriving them of that option, special provision the purpose of which is to which is open to companies deriving rights lay down the practical means by which the from Article 1(1) of the regulation, the Com­ quota for traditional operators is to be allo­ mission has violated the principle of non­ cated. The actual wording is as follows: discrimination and disregarded the objective 'Companies arising from mergers where each pursued by the Community legislature, set part has rights pursuant to Article 1(1) shall out in the second recital in the preamble to enjoy the same rights as the companies from Regulation No 130/94, of guaranteeing con­ 34 which they are formed'. tinued access to the quota for all interested Community operators.

82. It is clear that on the facts of this case 80. The United Kingdom and the Commis­ the situation of the companies party to the sion observe that the reply to that question is dispute is quite different. None of them

33 — Paragraphs 45 and 46. 34 — My emphasis.

35 — Paragraph 13 of the order for reference. 36 — See, inter alia, France and Ireland v Commission, para­ graph 49. 37 — Paragraph 37 of this Opinion.

I - 6718

THE QUEEN v INTERVENTION BOARD FOR AGRICULTURAL PRODUCE, EX PARTE ACCRINGTON BEEI- AND OTHERS counter to the Council's objective. The addressing a merger to companies which had calculation made by this type of 'speculative' already qualified as other operators in the operator is well illustrated in this case. current quota year. In the context of manag­ ing the quota, such a possibility is of no practical significance, since any subsequent allocation would be made by reference not to past trading performance, but by reference 89. However, it is true that the rule con­ to the application subsequently made by the tained in Article 2(2) of Regulation merged company. By contrast, in the case of No 214/94 applies only to traditional opera­ traditional importers, where the fact of the tors. I consider that there are objective rea­ merger may have legal effects up to four sons for that apparent difference in treat­ years afterwards, the situation foreseen by ment. The statement in that article was Article 2(2) is likely to occur, and is there­ necessary because the rules governing the allocation of quotas differ depending on fore of real practical significance, at least whether the operator is being allocated a tra­ from the point of view of administrative clar­ ditional or a non-traditional quota. As the ity. This is why Regulation No 214/94 con­ Commission has pointed out, 39 'the equiva­ tains an express provision addressing the lent provision to Article 2(2) in relation to issue in the case of traditional importers but other operators would in fact be one not in the case of other operators.'