T-197/95

SVERIGES BETODLARES CENTRALFORENING AND HENRIKSON v COMMISSION

O R D E R O F T H E C O U R T O F FIRST INSTANCE (First Chamber) 4 October 1996 *

In Case T-l97/95,

Sveriges Betodlares Centralförening, an association established under Swedish law, having its registered office in Malmö (Sweden),

and

Sven Åke Henrikson, residing in Lund (Sweden),

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ORDER OF 4.10. 1996 — CASE T-197/95

A P P L I C A T I O N for the annulment, under Article 173 of the EC Treaty, of Com- mission Regulation (EC) N o 1734/95 of 14 July 1995 fixing, for the 1994/95 mar- keting year, the specific agricultural conversion rate applicable to the minimum sugar beet prices and the production levy and additional levy in the sugar sector (OJ 1995 L 165, p. 12), in so far as that regulation does not fix any rate applicable to Sweden,

T H E C O U R T OF FIRST INSTANCE O F T H E E U R O P E A N COMMUNITIES (First Chamber),

composed of: A. Saggio, President, V. Tiili and R. M. Moura Ramos, Judges,

Registrar: H . Jung,

measures are necessary, in the sugar sector, to facilitate the transition from the existing regime in the new Member States to that resulting from application of the common organization of the markets, such measures are to be adopted in accord- ance with the procedure laid down in Article 41 of Council Regulation (EEC) N o 1785/81 of 30 June 1981 on the common organization of the markets in the sugar sector (OJ 1981 L 177, p. 4, hereinafter 'Regulation N o 1785/81')·

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ORDER OF 4.10. 1996 — CASE T-197/95

-t With regard to the marketing year from 1 July 1994 to 30 June 1995, the Commis- sion adopted Regulation (EC) N o 1734/95 of 14 July 1995 fixing, for the 1994/95 marketing year, the specific agricultural conversion rate applicable to the minimum sugar beet prices and the production levy and additional levy in the sugar sector (OJ 1995 L 165, p. 12, hereinafter 'the contested regulation')· The specific agricul- tural conversion rate to be used to convert the minimum sugar beet prices referred to in Article 5 and the levies referred to in Articles 28 and 28a of Regulation N o 1785/81 was determined for the currencies of the Member States other than the three new Member States, including Sweden. According to the third recital in the preamble to the contested regulation, the Commission considered that it was not appropriate to lay down specific agricultural conversion rates for the three new Member States on the ground that, for the marketing year in question, the entire sugar output of Austria, Finland and Sweden had been produced under national arrangements in force prior to accession and that it had been provided that Articles 28 and 28a would not apply to the quantities of sugar produced in those countries during the 1994/95 marketing year.

5 The first applicant, Sveriges Betodlares Centralförening, is a Swedish association which claims to represent all sugar beet growers in negotiations with the only sugar manufacturer in Sweden. According to Article 4 of its Statutes, it consists of local associations of sugar beet growers. The second applicant, Mr Henrikson, is the President of the applicant association and is also a sugar beet grower.

9 The applicants claim that the Court should:

— annul the contested regulation in so far as it refuses to fix, for the 1994/95 mar- keting year, the specific agricultural conversion rate also with regard to Swe- den, for the period from 1 January 1995, the date of accession, to 30 June 1995;

— order the Commission to bear the costs.

io The Commission contends that the Court should:

— dismiss the application as inadmissible;

— order the applicants jointly and severally to pay the costs.

12 The Commission argues, secondly, that the applicants are in fact complaining of a failure to act on the part of the Commission. It points out that an application for failure to act can be brought only under Article 175 of the Treaty. The Commis- sion takes the view that this form of action is not open to the applicants and that they are therefore attempting to obtain the same result by a different form of action. In those circumstances, the legal basis of the application is incorrect and the application is for that reason clearly inadmissible.

i3 The third plea in support of inadmissibility raised by the Commission is founded on the contention that the applicants lack locus standi to challenge a regulation that is general in its scope. According to the Commission, the contested regulation con- tains measures of general application which apply to objectively determined situ- ations and produce legal effects vis-à-vis classes of persons envisaged in a general and abstract manner, namely growers within the sugar sector. It points out that the legislative nature of a measure cannot be called in question by the fact that it is possible to determine the number or even the identity of the persons to whom it applies at any given time, so long as it is established that such application takes effect by virtue of an objective legal or factual situation defined by the measure in question in relation to its purpose (Case T-472/93 Campo Ebro and Others v

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SVERIGES BETODLARES CENTRALFÖRENING AND HENRIKSON v COMMISSION

ie The applicants contend that the application is admissible. They submit that the question whether they have an interest in taking action against the contested regu­ lation relates to the substance of the application, not to its admissibility. They take the view that the contested regulation does produce legal effects for them since, if it had laid down a conversion rate for the Swedish currency, that would have been directly applicable to the applicants' activities, with the result that Swedish sugar beet growers would have been entitled to receive a price calculated in accordance with the conversion rate for that portion of their sugar beet grown in 1994 and corresponding to the normal stocks of sugar as of 1 January 1995, determined by

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ORDER OF 4.10. 1996 — CASE T-197/95

Regulation N o 3300/94. They add that, since the Accession Treaty rendering Com- munity legislation relating to the sugar market applicable in Sweden with effect from 1 January 1995 had been signed well before the first sale of 1994 sugar beet to the Swedish sugar manufacturer, the growers were confident that, following acces- sion, that legislation would be applied to their activities.

i7 The applicants contend that there were nine consecutive devaluations of the Swed- ish krona between 1 January 1995 and 30 June 1995, which affected the parity between the ecu and the Swedish currency. They point out that the intervention price for sugar is determined in ecus and that, when the intervention price remained unchanged, its counter-value in Swedish currency increased. The prices obtained by Swedish sugar manufacturers thus increased without that increase being shared by the sugar beet growers.

2i Finally, the applicants contend that there can be no doubt that the measure in question is of direct concern to them. They put forward, inter alia, the same rea- sons as those justifying their interest in acting. Moreover, they submit, no imple- menting measures are necessary.

Findings of the Court

22 Under Article 114 of the Rules of Procedure, the Court may, where a party so requests, rule on the issue of inadmissibility without considering the substance of the case. In the present case, the Court finds that it has sufficient information from the documents on the file to enable it to rule on the request without opening the oral procedure and without considering the substance of the case.

23 The Court considers that it is necessary to begin by examining the third plea in support of inadmissibility based on the applicants' lack of locus standi. Under the fourth paragraph of Article 173 of the E C Treaty, any natural or legal person may institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former. The Commission contests not only the claim that the applicants are individually concerned but also the claim that they are directly concerned.

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25 In the judgment in International Fruit Company, cited above, to which the appli- cants refer in support of their argument that they are affected by a bundle of indi- vidual decisions, the legality of a Commission regulation was in issue. As it took the view that, when the regulation was adopted, the number of applications for import licences capable of being affected by it was known, that no further applica- tions could be added to that number and that the regulation had been adopted after account had been taken of the total quantity for which applications had been lodged, the Court of Justice held that the contested provision was not general in its scope but constituted a bundle of individual decisions, each affecting the legal pos- ition of each of the persons applying for a licence and therefore of individual con- cern to the applicants. The regulation had been adopted with regard to the specific situation of certain interested parties.

26 In the present case, the Commission did not receive any request pursuant to which the contested regulation was adopted. For that reason, contrary to what the appli- cants assert, the present case cannot be treated as analogous to that relied on by the applicants and thus permitting the conclusion that the contested regulation consti- tutes a bundle of individual decisions.

27 In any event, the Court takes the view that in the present case the regulation fixing the specific agricultural conversion rate in the sugar sector for the 1994/95 market- ing year is, by its very nature, of general application within the meaning of Article 189 of the Treaty. It applies by reason of an objective situation and produces legal effects vis-à-vis categories of persons considered in a general and abstract manner. Admittedly, no specific agricultural conversion rate was fixed for sales of sugar beet during that marketing year by growers established in Austria, Finland and

30 It follows that the contested regulation is general in its application.

3i Next, even if the regulation proves to be a general and abstract measure, it follows from the case-law that the fact that the contested measure is of a legislative nature does not prevent it from being of individual concern to certain of the traders concerned (Case C-358/89 Extramet Industrie v Council [1991] ECR 1-2501, paragraph 13, and Case C-309/89 Codomiu v Council [1994] ECR 1-1853,

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paragraph 19). In particular, it has been held that where the Commission is, by virtue of specific provisions, under a duty to take account of the consequences of a measure 'which it envisages adopting for the situation of certain individuals, that fact distinguishes them individually (Antillean Rice Mills, cited above, paragraph 67).

32 Thus, if the Commission had in this case such an obligation towards the applicant M r Henrikson and if the contested regulation adversely affected specific rights of the applicant Mr Henrikson (see order in Case C-10/95 P Asocarne v Council [1995] E C R 1-4149, paragraph 43, which interprets the above judgment in Codor- niu), the admissibility of the action would not be precluded by the fact that the regulation in this case is of general application. The parties have not referred to any existing obligation, imposed on the Commission by a specific provision, to take account of the consequences of the contested regulation on the situation of the applicants, and an analysis of the rules applicable does not reveal any such obligation either.

36 It has not been established that any of the growers belonging to the local associa- tions which are members of the applicant association are individually concerned by the contested regulation. N o reference has been made in the documents to indi- vidual growers other than Mr Henrikson, who is not individually concerned by the contested regulation.

37 In the circumstances of the present case, the action brought by the applicant asso- ciation must also be regarded as being inadmissible.

38 The question whether the applicants are directly concerned by the contested regu- lation is consequently irrelevant.

39 In view of the fact that the condition of admissibility requiring that the individual applicant and the applicant association be individually concerned by the contested measure has not been satisfied in this case, the Commission's third plea in support of inadmissibility must be upheld and the application dismissed as inadmissible in its entirety, without its being necessary to rule on the other two pleas in support of inadmissibility.

40 In those circumstances, there is no further need to rule on the application by the Kingdom of Sweden for leave to intervene in support of the forms of order sought by the Commission.

Costs

hereby orders:

1. The application is dismissed as inadmissible.

2. There is no need to rule on the application for leave to intervene brought by the Kingdom of Sweden.

3. The applicants shall bear their own costs and shall also bear, jointly and sev- erally, those incurred by the Commission. The Kingdom of Sweden shall bear the costs which it has incurred in bringing its application for leave to intervene.

Luxembourg, 4 October 1996.

H.Jung A. Saggio