T-5/96

represented by Otfried Lieberknecht and Wolfgang Kirchhoff, Rechtsanwälte, Düsseldorf, and Michael Schütte, Rechtsanwalt, Berlin, with an address for service in Luxembourg at the Chambers of Alex Bonn, 62 Avenue Guillaume,

applicants, v

Commission of the European Communities, represented by Eugenio de March, Legal Adviser, and James Macdonald Flett, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, also of its Legal Service, Wagner Centre, Kirchberg,

defendant,

A P P L I C A T I O N for the annulment of the Commission decision contained in the letter of 27 October 1995 (Reference D(95) VI/1242/95) refusing to fix for Sweden the specific agricultural conversion rate for minimum sugar beet prices for the period from 1 January 1995 to 30 June 1995,

Language of the case: English.

Order

1 Under the second indent of Article 137(2) of the Act concerning the conditions of accession and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p . 21, hereinafter 'the Act of Accession'), the common agricultural policy is applicable in full in the new Member States, namely the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, from 1 January 1995, the date of their accession, except where the Act of Accession pro- vides otherwise. Article 149 of the Act of Accession provides that if transitional 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').

2 O n 21 December 1994, the Commission adopted Regulation (EC) N o 3300/94 lay- ing down transitional measures in the sugar sector following the accession of Aus- tria, Finland and Sweden (OJ 1994 L 341, p. 39, hereinafter 'Regulation N o 3300/94'). The Commission noted, in the third recital in the preamble thereto, that, for the 1994/95 marketing year, the entire sugar output of Austria, Finland and Sweden had been produced under national arrangements and that a very large amount of that sugar had been disposed of prior to accession, and that retroactive action on sugar beet delivery contracts concluded in respect of that production

4 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 'Regulation N o 1734/95'). 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 Regulation N o 1734/95, the Commission took the view that it was not appropriate to lay down specific agricultural conversion rates for the three new

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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 were not to apply to the quantities of sugar produced in those countries during the 1994/95 marketing year.

5 By letter of 4 October 1995, the applicant association requested the Commission to 'correct this error' in Regulation N o 1734/95 and to fix also for the Swedish currency a specific agricultural conversion rate for the 1994/95 marketing year.

6 The Director-General of the Directorate-General for Agriculture (DG VI) replied to this request by letter of 27 October 1995 (Reference D(95) W 1 2 4 2 / 9 5 ) addressed to the applicant association's legal representative (hereinafter 'the con- tested letter'). The Commission stated in that letter that it could not comply with the request. That letter refers to Regulation N o 1734/95 and, in particular, to the reasons given in the third recital in its preamble. It explains that the Community legal arrangements can apply only to 'future operations', whereas the contracts between Swedish sugar beet growers and the industry were concluded and the sugar beet delivered before 1 January 1995.

9 The applicants also lodged on the same day a separate document requesting that the case be joined to Case T-197/95 involving the same parties and, according to the applicants, concerning the same subject-matter and the same legal arguments. They explain that the application in the present case was filed as a procedural safe- guard, necessary in case the fact that no specific agricultural conversion rate was fixed for Sweden in Regulation N o 1734/95 should be regarded as a failure to act, within the meaning of Article 175 of the Treaty, and for that reason not amenable to annulment under Article 173 of the Treaty.

io By document lodged at the Registry of the Court of First Instance on 23 February 1996, the Commission raised an objection of inadmissibility pursuant to Article 114(1) of the Rules of Procedure. The applicants' observations on the objection of inadmissibility were lodged at the Court Registry on 11 April 1996.

1 1 By order of the Court of 4 October 1996, the application in Case T-197/95 Sveriges BetodUres Centralförening and Henrikson v Commission [1996] ECR 11-1283 was dismissed as inadmissible.

i2 The applicants claim that the Court should:

— join the present case to Case T-197/95;

— annul the Commission decision contained in the letter dated 27 October 1995/VI/040143 (Reference D(95) W 1 2 4 2 / 9 5 ) in so far as it refuses to fix, for

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

Law

Admissibility

Arguments of the parties

u The Commission considers that the present application is inadmissible on the ground that the contested letter does not in any way alter the applicants' legal pos- ition. In this regard, it first refers to the judgment in Case T-83/92 Zunis Holding and Others v Commission [1993] ECR 11-1169, paragraphs 30 and 31, in which it was held that only measures having binding legal effects of such a nature as to affect the interests of the applicant by having a significant effect on his legal pos- ition constitute acts or decisions against which proceedings for annulment may be

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is The applicants submit that neither Regulation N o 3300/94 nor Regulation N o 1734/95 excludes the fixing of a specific agricultural conversion rate for the three new Member States, including Sweden, in respect of minimum sugar beet prices. It is the contested letter alone which introduces such a transitional measure, without any legal basis. According to the applicants, the contested letter thus goes further than Regulation N o 1734/95 by explicitly excluding the fixing of a specific

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agricultural conversion rate applicable t o minimum sugar beet prices in the three new Member States.

i9 The applicants further submit that the confirmation in the contested letter that the Community legal arrangements apply only to 'future operations' in relation to the date of accession deteriorates their legal position since it follows that the applicants cannot benefit from the Community system applicable to the sugar sector and, in particular, from a specific agricultural conversion rate. In view of the fact that other sugar beet growers benefit from the retroactive fixing of a conversion rate, the contested letter, according to the applicants, is also discriminatory in its effect.

20 The applicants consider that, in those circumstances, the contested letter affects their interests by significantly altering their legal position. In particular, they argue that the position in this case is not similar to that in Zunis Holding, cited above, in so far as the contested letter is not merely a confirmation of a previous measure, but goes further and affects their interests more profoundly than does Regulation N o 1734/95.

23 The applicants further stress that the Commission, in the contested letter, took a position on their request for the fixing of a conversion rate for Sweden. For that reason, the applicants could no longer plead a failure on the part of the Commis- sion to fix a conversion rate for Sweden in proceedings brought under Article 175 of the Treaty. Only an application for annulment under Article 173 would be pos- sible. O n the other hand, if the Court were to take the view that the present action is directed against a purely confirmatory decision and is for that reason inadmis- sible, the applicants would have no legal remedy to protect their legitimate inter- ests. Since the Commission alone is competent to determine the conversion rate in question, Article 177 proceedings would also be unable to resolve this issue. The applicants take the view that at least one avenue of redress should be open to them in order to ensure minimum legal protection.

Findings of the Court

24 Under Article 114 of the Rules of Procedure, the Court may, where a party so requests, rule on the issue of inadmissibility without going to 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.

25 The Court first notes that the contested measure is a letter indicating that the Commission cannot accede to the applicant association's request seeking, in substance, an amendment to Regulation N o 1734/95, in which no conversion rate applicable in Sweden was fixed (see paragraph 6 above).

28 With regard to the assertion that the contested letter is a negative response to a request submitted by the applicant association seeking, in substance, to secure an amendment to Regulation N o 1734/95, the Court reiterates that a negative reply must be appraised in the light of the nature of the request to which it constituted a reply (Joined Cases C-15/91 and C-108/91 Buckl and Others v Commission [1992] ECR 1-6061, paragraph 22). An action for annulment brought by an indi- vidual against a negative decision is inadmissible in so far as it is directed against a refusal to adopt a regulation having general application. Similarly, a trader who cannot claim to be individually concerned by a regulation is not entitled, by way of an action for annulment, to contest the refusal to adopt it (see, in this connec- tion, the judgment in Buckl, cited above, paragraphs 23 to 26). In other words, an action brought by a natural or legal person against a Commission refusal retroac- tively to rectify a measure will be inadmissible if the rectification requested would have had to be adopted in the form of a generally applicable regulation (Case C-87/89 Sonito and Others v Commission [1990] ECR 1-1981, paragraphs 8 and 9).

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SVERIGES BETODLARES CENTRALFÖRENING AND HENRIKSON v COMMISSION

29 The Court has already held in the previous case involving the same parties that, since Regulation N o 1734/95 is legislative in character and general in its applica- tion, it is not of individual concern to either the applicant Mr Henrikson or to the applicant association (order in Case T-197/95 Sveriges Betodlares Centralförening and Henrikson v Commission, cited above). In those circumstances, the conclusion must be that, in so far as the contested letter constitutes a refusal to amend Regu- lation N o 1734/95, the applicants' challenge mounted in this case against that refusal by way of an action for annulment is inadmissible.

Costs

34 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicants have failed in their submissions, they must be ordered to pay the costs.

O n those grounds,

T H E C O U R T O F FIRST INSTANCE (First Chamber)

hereby orders:

1. The application is dismissed as inadmissible.