T-22/98

SCOTTISH SOFT FRUIT GROWERS v COMMISSION

O R D E R O F T H E C O U R T O F FIRST I N S T A N C E (Fifth Chamber) 11 December 1998*

In Case T-22/98,

Scottish Soft Fruit Growers Ltd, a corporation registered under the law of Scot- land, established at Blairgowrie, Scotland, represented by Fergus Randolph, Bar- rister, of the Bar of England and Wales, with an address for service in Luxembourg at the Chambers of Arendt and Medernach, 8—10 Rue Mathias Hardt,

applicant,

v

concerning the interpretation and application of Council Regulation (EEC) N o 1991/92 of 13 July 1992 establishing a special scheme for raspberries intended for processing (OJ 1992 L 199, p. 1), and of Commission Regulation (EEC) N o 2252/92 of 30 July 1992 laying down detailed rules for applying that scheme (OJ 1992 L 219, p. 19),

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 (Fifth Chamber),

composed of: J. D . Cooke, President, R. Garcia-Valdecasas and P. Lindh, Judges,

Registrar: H . Jung,

makes the following

Order

3 Article 6 of Commission Regulation (EEC) N o 2252/92 of 30 July 1992 laying down detailed rules for applying that scheme (OJ 1992 L 219, p . 19) supplements Article 2(2) of Regulation N o 1991/92 and states that for the purposes of granting the flat-rate aid to each producers' organisation the volume of produce marketed means the quantity actually sold by its members for processing during the first marketing year following the date of specific recognition. It adds that where poor weather conditions in the production region result in a reduction of more than 20% in the harvest of the producers' organisation, the quantity marketed is to be that actually sold for processing during the second marketing year following the date of specific recognition.

4 Under Article 10(1) of Regulation N o 2252/92, 70% of the provisional amount of the flat-rate aid to recognised producers' organisations which have presented a

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programme to improve competitiveness approved by the competent national authorities is to be paid to them by those authorities not later than two months after the programme is approved. Under Article 10(2), the provisional amount is to be determined, where necessary, on the basis of the quantity marketed by each producers' organisation as shown in the application for recognition.

5 The definitive amount of the aid depends on either the quantities actually sold for processing during the first marketing year following the date of specific recogni- tion or, in the event of poor weather conditions in the production region resulting in a reduction of more than 20% in the harvest of the producers' organisation, the quantity actually sold during the second marketing year following the date of rec- ognition. Article 10(3) of Regulation N o 2252/92 provides that the definitive amount of the aid is to be fixed and the balance — the difference between the definitive amount and the sum advanced — to be paid not later than one month following the communication by the producers' organisation to the competent national authority of the quantity marketed during the first marketing year follow- ing its recognition.

8 The applicant's programme was approved on 28 May 1993 and, in accordance with Article 10(1) of Regulation N o 2252/92, on 2 July 1993 it was paid 70% of the flat- rate grant by the competent national authority — the Intervention Board. The provisional amount of the grant (£246 755.10) was determined, in accordance with Article 10(2), on the basis of the quantity marketed by the organisation, as shown in its application for recognition (7 350 tonnes of raspberries). However, the definitive amount of the grant was in principle to be fixed after the end of the marketing year 1 June 1993 to 31 May 1994.

9 Owing to unusual weather conditions during that period, the applicant marketed some 4 000 tonnes of raspberries only. Since the circumstances specified in Article 6 of Regulation N o 2252/92 (poor weather conditions) were present, the quantity used for calculating the definitive amount of the grant was thus to be that actually sold during the second marketing year (from 1 June 1994 to 31 May 1995). H o w - ever, as a result of further adverse weather conditions, the applicant's sales for the 1994/95 marketing year amounted to only 3 539 tonnes. The definitive amount of start-up aid thus came to £163 009.21.

10 By letter of 3 April 1995, the Intervention Board, the national intervention agency in the United Kingdom, requested the applicant to repay the overpaid amount of £83 745.90, pursuant to Article 14 of Regulation N o 2252/92. An invoice dated 25 April 1995 indicated that the remittance was due by 10 May 1995.

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14 By separate document lodged at the Registry on 6 March 1998, the Commission raised a preliminary objection of inadmissibility pursuant to Article 114(1) of the

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Rules of Procedure of the Court of First Instance. O n 29 April 1998, the applicant lodged its observations on that objection.

15 In its application the applicant claims that the Court should:

— annul the Commission's decision expressed in its letter of 16 October 1997; and

— order that the case be allowed to proceed.

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Admissibility

Arguments of the parties

18 The Commission maintains, in the first place, that the application is inadmissible because the letter in issue in no way changes the applicant's legal position; the obligation to reimburse the aid overpaid by the authorities is a consequence of the application of Article 6 of Regulation N o 2252/92 and not of the letter from the Director-General of D G VI stating that the Commission could not accede to the Scottish Office's request for that article to be amended. The contested letter is thus not a measure which has brought about a distinct change in the applicant's legal position. The Commission points out that, according to the case-law of the Court of Justice and the Court of First Instance, only measures which produce binding legal effects such as to affect the interests of an applicant by bringing about a dis- tinct change in his legal position may be the subject of an action for annulment (Case T-541/93 Connaughton and Others v Council [1997] E C R II-549, paragraph 30). It considers, therefore, that since the contested act was not capable of produc- ing binding legal effects, it could not be the subject of an action for annulment.

22 In its application, the applicant maintains that its action is admissible inasmuch as the contested decision, although addressed to the Scottish Office, is of direct and individual concern to it. That decision is of direct concern in that its effects on the applicant do not depend on the exercise of a discretionary power by a third party, and of individual concern in that it affects the applicant by reason of certain attributes which are peculiar to it or by reason of circumstances in which it is dif- ferentiated from all other persons, thus distinguishing the applicant individually just as in the case of the person addressed. The applicant stresses that it alone is affected by the contested decision since it is the only raspberry producers' organi- sation in the Community.

23 In its observations on the plea of inadmissibility, the applicant claims that the con- tested decision did change its legal position and, consequently, did produce bind- ing legal effects such as to make its application admissible. In reply to the C o m - mission's argument that it was not the contested decision that led to its having to

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repay the sum of £83 745.90, it states that the national authorities stayed any action to recover that sum, pending the Commission's decision. It points out that the Court of Justice has held an application for annulment of an act of the Commis- sion to be admissible even though that act required implementing measures to be adopted by the national authorities (Case 11/82 Piraiki-Patraiki v Commission [1985] ECR 207, paragraph 7). Consequently, in the applicant's view, the contested decision as such definitively laid down the view of the law taken by the Commis- sion and thus affects its own legal position, thereby rendering that decision liable to judicial review pursuant to Article 173 of the Treaty (see Joined Cases T-10/92, T-11/92, T-12/92 and T-15/92 Cimenteries CBR and Others v Commission [1992] E C R II-2667).

27 It also challenges the argument which the Commission bases on that order, con- cerning the nature of the request which gave rise to the contested decision, to the effect that the applicant is seeking a legislative amendment to the relevant Com- munity legislative provisions. The letter from the Scottish Office of 25 October 1995 (Annex 5 to the application) does not necessarily comprise a request for amendment of Regulation N o 2252/92. In the applicant's submission, it can be seen from that letter that the request relied on inter alia interpreting the word 'normally', used in Regulation N o 1991/92, as including an exception on grounds oi f orce majeure to the legislative provisions as laid down. That would not neces- sarily require an amendment to those provisions. Accordingly, the case-law relied on by the Commission has no bearing on this case.

28 If, however, the Court were to take the view that the nature of the request did necessarily call for amendment of the legislation, the applicant argues that the amendment envisaged is such as to be capable of permitting an action for annul- ment to be brought against a refusal to adopt it. Such an amendment could, in its view, only apply by its nature to one producer — the applicant — since, during the relevant period, it was the only producer concerned by the original legislative pro- visions. It notes that in an analogous situation the Court of Justice held that a regulation which denied a specific class of traders the benefit of an increase in export refunds was of direct and individual concern to those traders (Case 100/74 CAM v Commission [1975] E C R 1393).

30 In support of the admissibility of its action, the applicant claims that its application is analogous, rather, to that in Joined Cases 41/70, 42/70, 43/70 and 44/70 Inter­ national Fruit Company and Others v Commission [1971] E C R 411, referred to by the C o u r t of First Instance in Case T-197/95 Sveriges Betodlares Centralforening and Henrikson v Commission [1996] E C R II-1285. Accordingly, it considers that the grounds relied on by the C o u r t of Justice in finding that action admissible are apposite and relevant in the present case. It points out that in International Fruit the C o u r t held that the contested regulation did not have general application and was therefore liable to review under Article 173 of the Treaty on the grounds that, when it was adopted, the number of import Učence applications capable of being affected by it was known, no further applications could be made, and that the regulation had been adopted after account had been taken of the total quantity for which applications had been made and in the light of the specific situation of cer­ tain parties. In the applicant's submission, any amending legislation would satisfy all the conditions which led the Court of Justice to find that application admissible in that judgment and therefore, in the circumstances of this case, the decision refusing t o adopt such legislation must be deemed capable of review under Article 173 of the Treaty.

31 Lastly, the applicant states that the Commission's argument that other organisa­ tions could have been covered by the regulation and might be covered in the future

34 According to settled case-law, the mere fact that a letter is sent by a Community institution to its addressee in response to a request made by the latter is not enough for it to be treated as a decision within the meaning of Article 173 of the Treaty, thus entitling its recipient to bring an action for its annulment (Case C-25/92 Miethke v Parliament [1993] E C R I-473, paragraph 10, Case T-277/94 AITEC v Commission [1996] ECR II-351, paragraph 50, and Case T-5/96 Sveriges Betodlares Centralförening, cited above, paragraph 26). It is also settled case-law that only a measure which produces binding legal effects so as to affect the interests of an applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action for annulment under

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Article 173 (Case 60/81 IBM v Commission [1981] E C R 2639, paragraph 9, Case T-541/93 Connaughton and Others, cited above, paragraph 30, and Case T-5/96 Sveriges Betodlares Centralförening, cited above, paragraph 26).

35 In the circumstances, the Court holds that the applicant's obligation to repay was the consequence of application of the rules in force and that the applicant therefore owed that sum to the Intervention Board before the Scottish Office submitted its request to the Commission and continued to owe it after the Commission's reply.

36 Furthermore, when the Scottish Office wrote to the Commission on 25 October 1995, the applicant had already received the Intervention Board's letter of 3 April 1995 informing it of the definitive amount of the start-up aid to which it was entitled and indicating the exact sum overpaid which it had to repay on the basis of an invoice to be submitted in the next few days. The invoice, which was actually sent by the Intervention Board on 25 April 1995, required the applicant to pay the sum of £83 745.90 by 10 May 1995.

40 In the light of the foregoing, the Court concludes that the letter in issue did not affect the applicant's legal position.

41 It must also be borne in mind that an action for annulment brought by an indi- vidual is inadmissible in so far as it is directed against a refusal to adopt a regula- tion having general application (see, to this effect, Case T-5/96 Sveriges Betodlares Centralförening, cited above, paragraph 28). Similarly, an action brought by a natural or legal person against a refusal by the Commission to rectify a measure retroactively 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] E C R I-1981, paragraphs 8 and 9, and Case T-5/96 Sveriges Betodlares Centralförening, cited above, paragraph 28).

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44 Nor, moreover, may the applicant rely on the case-law it has cited, which relates to cases in which the legal context and factual circumstances are not comparable to those in the present case, and thus cannot detract from the finding that there is nothing to bring about a change in the applicant's legal situation.

45 As far as concerns, first, the judgment in Piraiki-Patraiki, cited above, it is enough to note that, by contrast with that case, the measure in issue here is not a safeguard measure involving derogations from the rules of the Treaty as of a particular moment and for a limited period, and that neither the Council nor the Commis-

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sion could have attempted or been expected to identify the traders before the act was adopted.

46 As regards, second, the judgment in Cimenteries CBR, cited above, the Court con- siders that the applicant is wrong to deduce therefrom that the Commission's deci- sion in the present case is subject to judicial review under Article 173 of the Treaty just because it sets out the Commission's position definitively, given that the judg- ment itself makes it clear that it is necessary that the act should bring about a marked change in the applicant's legal position.

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Costs

49 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party's plead- ings. Since the applicant has been unsuccessful, it must be ordered to pay the costs.

O n those grounds,

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

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