JUDGMENT OF THE COURT (SECOND CHAMBER) 30 SEPTEMBER 1982 '
SA Roquette Frères v Council of the European Communities
(Isoglucose)
Case 242/81
Measures adopted In the institutions — Legal nature — ReguLtion or decision — Criteria (EEC Treaty, Art. 189)
According to the second paragraph of A measure does not cease to be a regu Article 189 of the Treaty the criterion lation because it is possible to determine for distinguishing between a regulation more or less exactly the number or even and a decision is whether or not the the identity of the persons to whom it measure in question has general applies at any given time as long as it application. For that purpose it is established that such application takes necessary to consider the nature of the effect by virtue of an objective legal or contested measure and in particular the factual situation defined by the measure legal effects which it is intended to have in question in relation to its purpose. or does in fact have.
In Case 242/81
SA Rooi'Frrr FRÈRES, a company incorporated under French law, whose registered office is at Lestrem. Pas-de-Calais, represented by Marcel Vcroone and Jacques Dutat. of the Lille Bar. with an address for service in LuxcmDourg at the Chambers of J. Loesch. Advocate. 2 Rue Goethe, applicant,
1 — 1 *~Hir . · "» Cj.f r'r-^f.
3213 JUDGMENT OF 35. 9. 1982 — CASE 242/81
V
COUNCIL OF THE EUROPEAN COMMUNITIES, represented by Daniel Vignes, Director of its Legal Department, assisted by Arthur Bräutigam, an administrator in the said department, with an address for service in Luxembourg at the office of H.J. Pabbruwe, Director of Legal Affairs at the European Investment Bank, 100 Boulevard Konrad-Adenauer, defendant, and
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Jean-Claude Séché, Legal Adviser in its Legal Department, with and address for service in Luxembourg at the office of Oreste Montalto, a member of the said department, Jean Monnet Building, Kirchberg,
intervener,
APPLICATION for a declaration that Council Regulation No 1785/81 of 30 June 1981 on the common organization of the markets in the sugar sector (Official Journal 1981, L 177, p. 4) is void,
THE COURT (Second Chamber)
composed of: O Due. President of Chamber, A. Chloros and F. Grévisse, Judges,
Advocate General G Reischl Registrar H A Ruhl. Principal Administrator
gives the following
3214 ROQUETTE FRERES v COUNCIL
JUDGMENT
Facts and Issues
The facts of the case, the course of the "The common organization of the procedure and the conclusions, sub market in sugar shall . . . cover the missions and arguments of the parties following products: may be summarized as follows: Common Customs Tariff heading No and description of goods: I — Facts and written procedure (a) ... 1. The product in question (b) ... (c) ... Glucose which has a high fructose content and is also called "isomerose" or (d) ex 17.02 Other sugars (but not "isoglucose" is a sweetener manu including lactose and glucose); sugar factured from starch from any source, syrups (but not including lactose albeit most often from maize, and its syrup and glucose syrup); properties allow it to be used as a direct ex 17.05 Flavoured or coloured substitute for liquid sugar or syrup for sugars (but not including lactose and food purposes. glucose), syrups (but not including lactose syrup and glucose syrup) and The applicant in the present case is one molasses ...." of the manufacturers of maize starch in the Community and has set up an industrial structure for the manufacture As regards cereals Article 1 of Regulation of isoglucose. No 12C/67 provided: "The common organization of the 2. The Community rules market in cereals shall . . . cover the following products: (al When the manufacture of glucose (a) ... with a high fructose content (hereinafter referred to as "isoglucose") appeared in (b) ... the Community the common organ izations of the markets in sugar on the (c) ... one hand and cereals on the other were (d) the products listed in Annex A to this respectively governed by Council Regu regulation" (products listed in Annex lations Nos lCC9/t>7 of 18 December A include "17.C2 B: glucose and 1967 and 12C/67 of 13 June 1967 glucose syrup"). (Official Journal. English Special Edition I9ö7. pp. 304 and 33 respectively). (b) That arrangement remained un Those regulations defined their own changed for several years. In particular. scope as follows: Article 1 (1) of Regulation No 3330/74 of the Council of 19 December 1974 As regards sugar Anicie 1 of Regulation (Official Journal 1974, L 359. p. 1), No IC09/67 provided: which repealed Regulation No 1039/67
3215 JUDGMENT OF 30. 9. 1982 — CASE 242/81 and established a new common organiz (c) Bv Council Regulation No 1110/77 ation of the markets in sugar, excluded of 17 May 1977 (Official Journal 1977, lactose syrup and glucose svrup L 134, p. 1) amending Regulation No (headings 17.02 C to F and 17.05' C). 3330/74 on the common organization of Regulation No 2727/75 of the Council the market in sugar, the Community of 20 October 1975 (Official Journal legislature confirmed the exclusion of 1975, L 281, p. 1) on the common isoglucose form the scope of the organization of the market in cereals common organization of the markets in covers inter alia glucose and glucose sugar. However, Council Regulation syrup (Article 1 (d) and Annex A to the No 1111/77 of 17 May 1977 (Official regulation). Journal 1977, L 134, p. 4) established common provisions for isoglucose and thus withdrew the production thereof from the scope of the common organ The fact that in 1976 isoglucose came ization of the markets in cereals within the scope of the common organ (headings Nos 17.02 D I and 17.05 C I). ization of the markets in cereals is confirmed inter alia by the regulations implementing Regulation No 2727/75 as Parallel to the provisions of the aforesaid regards the payment of production Regulation No 1111 /77 establishing a refunds in the cereals sector and in system of external trade and fixing a particular the production refunds for production levy on isoglucose in the isoglucose with a high fructose content: Community, the Council by the adoption Council Regulation No 1862/76 of 17 of Regulation No 1110/77 amended the July 1976 (Official Journal 1976, L 206, provisions on the production levy on p. 3), which fixed the amount of the sugar (Articles 2 and 4 of Regulation No refunds for the 1976/77 marketing year 1110/77 amending Anieles 8 and 27 (2) and laid down special rules for the of Regulation No 3330/74) and on the manufacture of glucose with a high fixing of the threshold price for white fructose content; Commission Regu sugar (Article 3 of Regulation No lation No 2158/76 of 31 August 1976 1110/77 amending Article 13 (2) of laving down rules for the application of Regulation No 3330/74) to take account Regulation No 2742/75 (Official Journal of the effects on the sugar market of the 1976, L 241, p. 21). production levy on isoglucose recently created bv Article 9 of Regulation No 1111/77. ' h appears from a consideration of those provisions thai the Community It is apparent from a consideration of legislature in the 1976/77 production those regulations that the Community vear intended to subiect the production legislature in the 1977/78 marketing year of glucose with a high fructose content intended to apply special rules to the to rules derogating from those governing production of isoglucose, albeit closely other cereal products, in particular by connected with those governing the providing iniţiali« for the pa\ ment of a sugar market, to take account of the fact leaser production refund for isoglucose that the two products were linked by than for the other products coming virtue of their being substitutes for one under the common organization of the another. ma r Kets cereais and subsequently, as from the 1977/7t> marketing \ear. for the abolition ot t hi· production refund on That view is clearly supported inter alia isoglucose bv the fourth recital in the preamble to
3216 ROQUETTE FRERES v COUNCIL
Regulation No 1110/77, which is as repealed inter alia Regulations Nos follows : 3330/74 and 1111/77. Article 1 (1) provides: ". .. the production levy on isoglucose provided for in Article 9 of Council Regulation (EEC) No 1111/77 of 17 "The common organization of the May 1977 laying down common pro markets in the sugar sector established visions for isoglucose is based essentially by this regulation shall cover the on the need for isoglucose producers to following products: share the costs incurred by the sugar (a) . . . sector inasmuch as the substitution of isoglucose for sugar makes it inevitable, (b) ... in view of the Community sugar surplus, (c) ... for corresponding quantities of sugar to be exported to third countries; . . . the (d) ... revenue from the production levy on isoglucose should therefore be set against (e) ... these marketing losses." (f) 17.C2 DI': Isoglucose (g) 21.07 FIII1: Flavoured or coloured In the same way it is confirmed by the isoglucose syrups." ninth recital in the preamble to Regu lation No 1111/77, which is worded as follows: The second recital in the preamble to Regulation No 1783/81 mentions the need to include isoglucose in the ". . . the levy system established by this common organization of the markets in regulation is complementary to that· sugar. It reads as follows: established bv Council Regulation (EEC) No 3330/74 of 19 December 1974 on the common organization of the market ".. . the operation and development of in sugar, as last amended bv Regulation the common market in agricultural (EEC) No 1110/77; ... the envisaged products must be accompanied by the levy on the production of isoglucose is establishment of a common agricultural therefore analgous to that provided for policy to include, in particular, a in Anicie 27 of Regulation (EEC) No common organization of the agricultural 3330/74 and, consequently, constitutes markets which may take various forms own resources of the Communities depending on the product concerned; . . . within the meaning of Article 2 of the isoglucose is a direct substitute for liquid Council Decision of 21 April 1970 on the sugar obtained from sugar beet or sugar replacement of financial contributions cane; . . . therefore, the markets in sugar from Member States by the Communi and isoglucose are closely linked; . .. the ties' own resources." situation in the Community in respect of sweeteners is characterized bv structural surpluses and any Community decision Idi The legal position regarding isoplucose »as ¡as: amended by Council Regulation No I7S5/8I or 3: june 1981 1 — Tnr hfasmc Noi auotrc corrcipond io iftoir laid C-·* . Cjutir Rrt.utiiT NJ I7Í6/ÍI ol Io Ml> on the common organization of the «* ammoinr Rrfu>jiior> Ne 'SC'oï on ;hc Common markets in the sugar sector (Official Cditcmt lir-M contraumt u^on tur enin mio torce p· fcftw.juo'- \*. I "li îl (Ottici*. Journjì L 17?. Journal 19* I. L 177. p. 4), which r »:.
3217 JUDGMENT OF JO. 9. 1982 — CASE 242/81
relating to one of these products II — Conclusions of the parties inevitably has repercussions on the other; ... it is therefore necessary to have an 1. Roquette claims that the Coun organization common to the sugar and should : isoglucose sectors which takes appro priate account of production features Declare the application admissible and specific to one or the other sector." well founded; Declare Council Regulation No 1785/81 of 30 June 1981 void at least to the 3. Procedure extent to which its provisions relate to the applicant; By application received at the Court Order the Council to pay the costs. Registry on 7 September 1981 SA Roquette Frères [hereinafter referred to as "Roquette"] brought an action before 2. The Council of the European Com the Court under the second paragraph of munities asks the Coun to declare the Article 173 of the EEC Treaty for a applicant's claim inadmissible, in the declaration that Council Regulation No alternative to dismiss it because the 1785/81 of 30 June 1981 on the common applicant has no legitimate interest in organization of the markets in the sugar taking proceedings and, in the further sector is void inasmuch as Article 24 alternative, to dismiss it as unfounded. thereof fixes production quotas for isoglucose and Anicie 28 establishes a The Council funher asks the Coun to production levy on isoglucose related to order the applicant to pay the costs. the said quotas. 3. The Commission suppons the Council's conclusions that: On 13 Januarv 1982 Roquette lodged its reply with the Court. The action should be dismissed; The applicant should be ordered to pay The Council of the European the costs. Communities, the defendant, lodged its defence with the Court on 6 November 1981 and us rejoinder on 18 March 1982; it contends that the action is Ill — Submissions and argu inadmissible and alternatively unfounded. ments of the parlies
By application lodged at the Court A — Admissiblity Registry on 2 December 1981 the Commission sought to mienené in I. Roquette seeks to anticipate the support of the Council. By order of arguments which might be adduced 22 Januarv \9*2 the Court allowed the against it by the Council on the question intervention The Commission lodged its of the admissibility of its action and pleading »uh the Court on 17 March states in its application that it considers I9s; that us action is admissible inasmuch as us obiect is a declaration that a regu lation of direct and individual concern to l. pon hr anne the we» s oí the Advocate u is void. General the court decided bv order of lq Mav I9S2 to assign the case to the In the first place the applicant observes Second Chamoer. pursuant to Anide 95 that the Coun, in us judgment of ( I ) ot us Ruies of Procedure 29 October 1980 in Case 138/79
3218 ROQUETTE FRERES » COUNCIL
(Roquette v Council) [1980] ECR 3333, The power given by Article 23 (2) of held the action directed against Regu Regulation No 1783/81 to the Member lation No 1111 /77 laying down common States to alter the quotas allocated to the provisions for isoglucose to be various producers subject to a limit of admissible. 10% cannot in the applicant's opinion affect that analysis. The applicant In the second place the applicant seeks to observes that in its opinion such refute the argument to the effect that the measures were contemplated by the general manner of fixing production legislature to enable a production quota quotas for each Member State and no to be granted to any new producer who longer for each undertaking makes it might appear on the market. Since that impossible to identify the producers did not occur, the power given to the concerned by the regulation in question. Member States by Article 23 (2) has not been exercised and the transitional The applicant points out that, apart from measures taken by the Commission in the increase resulting from the the form of Regulation No 3041/81 of enlargement of the Community by the 23 October 1981 (Official Journal 1981, accession of Greece, the number of L 303, p. 10) habe not the applicant's undertakings producing isoglucose knowledge been able to take effect. concerned by the regulation in question has not changed since the marketing vears prior to the year 1981, which is In any event, the power given to governed by the present regulation, and Member States to alter the allocation of that in each country or production quotas subject to a limit of 10% of the region the producers are easily amounts specified in Regulation No identifiable since there is only one of 1783/81 is to compared with the them, except in Italy and Greece where machinery previously provided for in there are two. It should not be thought Article 3 of Regulation No 1293/79 that because the quotas are fixed for (which inserted a new Article 9 (6) into each Member State and not for each Regulation No 1111/77) allowing the producer the Community legislature Council to allot to new undertakings a cannot know precisely how production production quota not exceeding 5% of capacity is allocated in the industry. As the quotas allotted to the other evidence of the validity of that statement producers. the applicant points to the fact that the quota fixed for France by Regulation No. 1785/81 is simply the quota allocated by The applicant observes that that the Council to the applicant for the machinery, the objectives of which were previous production years, which is identical and the terms similar to those logical since the applicant is the only of Anicie 25 (2) of Regulation No producer of isoglucose established in 1785/81. did not allow the Court to French territory. In addition the declare inadmissible Roquette's previous applicant points out that as regards action, which was brought against Regu Greece the legislature has taken care to lation No 1293/79 (Case 138/79 [1980] determine the breakdown of the national ECR 3333). quota bei» een the two undertakings concerned and as tar as concerns Italy For that reason it considers that, since the quota granted to that Member State the situation on the Community market represents the arithmetical sum of the has remained the same as it was in the quotas preuouslv allocated to the two marketing years prior to 1981. the fixing producers of isoglucose established in ot production quotas for each Member that territory. State and not for each undertaking in no
3219 JUDGMENT OF 3C. 9. 1982 — CASE 242/8:
way affects the admissibility of the action allot a new quota restricted to 5% of the previously accepted by the Court in Case existing quotas, Regulation No 1785/81 138/79. gives the competent authorities of the Member States the power to reduce the quotas which they already fixed for the 2. The Council of the European existing undertakings. It follows that in Communities considers that the action is contrast to the machinery provided for in inadmissible inasmuch as it does not Regulation No 1293/79 exercise of the satisfy the terms of Article 173 of the power provided for in Article 25 of Treaty and the applicant has no Regulation No 1785/81 may affect the legitimate interest in taking proceedings. quotas allotted to existing producers and that would be after consideration by the In the first place the Council considers Member States of the situation on the that the contested measure is not of market. direct and individual concern to the applicant. In contrast to previous regu lations allotting production quotas and Contrary to what the applicant appears imposing a production levy on iso- to think, the power conferred bv that glucose. Regulation No 1785/81 does provision may be exercised at any time not itself allocate the quotas in question and the reason why the present situation, but places the responsibility on the which appears identical to that in Member States for allocating quotas to previous marketing years, will remain the producers established in their unchanged, is not that the provision has territory and for that purpose gives them not yet been implemented. In that respect a "margin of discretion". the Council stresses that the implemen tation measures necessary for the The Council states that in order to allow exercise of the power conferred by a new producer access to the market the Article 25 (2) of Regulation No 1785/81 Member States have pursuant to Article already exist in the form of Article 8 of 23 of the regulation the power to reduce Regulation No 3331/74 of the Council by not more than \Z:/: the A und B of 19 December 1974 on the allocation quotas allotted to individual under and alteration of the basic quotas for takings. In tne Council's opinion that sugar (Official Journal 1974, L 359, po»er breaks tne direi: imk between the p. 18). It states further that the Member applicant and trie contested measure States may until the 1985/86 marketing required b\ Amele \T\ of the Treatv for year inclusive still alter the quotas the admissibilité of an action tor a allocated to undertakings pursuant to declaration mat a measure is \oid It Anicie 25 (2) and finally that the tolio» s according to tne Council that implementation measures adopted bv the tne present j;:ion must be declared Commission, ' to which the applicant inadmissible refers in an endeavour to show that no use will be made of that power to alter the quotas allocated, do not concern the Ir supper· o' ·:« ; jir ihr Council puts application of Anicie 25 (2) of Regu ! · » aro trr !.· .·» -ng jrc-^rn'.» lation No 1785/81 but transfers of quotas in the event of undenakings' Ir. ienira*: t.· ihr rr.a. rnrri pro\i
3220 ROQUETTE FRIRES v COUNCIL
On that issue the Council therefore of Regulation No 1783/81, that is to say concludes that the devolution to the the full financing by the producers of the Member States of responsibility for costs of exporting sugar surpluses, can fixing the production quotas for each function only if the levy in question is undertaking and the power given to appropriated to the Community budget as national authorities to exercise ''con pan of the Community's own resources. siderable discretion" in the allocation of individual quotas do not allow traders to contend that the provisions of Regu On that issue the Council emphasizes that lation No 1785/81 are of direct and the regulation in question nowhere individual concern to them. The Council provides that the levy is to be regarded as concludes that the action by Roquette is part of the Community's own resources. inadmissible. In the Council's view the objective of the regulation is not to adopt provisions of a In the second place the Council seeks to financial nature but to set in motion an show that Roquette has no real interest instrument of the common agricultural in bringing the present action for a polio', namely machinery to restrict declaration that the regulation is void. production. In that respect the Council recalls that in paragraph 26 of its In the Council's view it is obvious that judgment in Case 138/79 the Court the applicant's aim in the present action expressly recognized the power to adopt is to escape the production levy to which such measures since the production of it is subject. The Council observes that isoglucose contributed to the increase in the applicant is not challenging the sugar surpluses. In the Council's view principle of the levy but its appropriation such measures are not necessarily to be to the Community budget. The Council classified in the category of own accordingly states that the applicant has resources in the same wav as value added no interest in the present action since on tax or customs dunes. On the contrary, the assumption that the applicant's the Council understands the judgments of submission is well founded the result the Court in Cases 13S/78 [1979] ECR would be an amendment of the appro 713 and 66/8C [1981] ECR 1191 as auth priation of the lew and not its abolition orizing the legislature to classify such as a levy intended to limit the production instruments of agricultural policy which of isoglucose. In addition, the Council provide the Communuv with revenue as emphasizes that even if the levy in "intervention measures" which may be question may be regarded as being of brought into the categorv of "other direct and individual concern to the revenue" referrec to ir. the firs: sentence applicant it is not possible to contend o: Article * ! ot Council Decision that us mere appropriation to the Communuv budget as part o! the ?:':*:•> oí :¡ Aoni IQ" (Official Communitv's own resources can be of Journal. English Special Edition 197; Mi, direct and individual concern to the p 22*) In tnr Council's opinion u is applicant within the meaninp o! tne therr:..ve a uuestior. o! acncuhural second paragraph of Anicie l'.' of the revenue otner injn inat referred io in Treatv. That question of appropriation Artu.r 211 o: i.ir Treat*, »men »as not concerns all actual or poienna. produceri intended tor »„.n measures ot agri ot sucar and isoglucose and not a limned cultura, recuti'.io- »ut to cuaranter to the circie ol producers déterminée on^e and MrT?f Mate* '..-.at jc.ua revenue trom tor all uva· •·' >'" c*"1"1 JPP'i.J'.io" ar.C o', a rrguu.' anu luOMjniij. njtu:e could not In addition, the Council challenges tne Pe ir.uou-ceć m üvour ot tnr general applicants' statement to the effect thai budge: o' tne Communities »itnout tirst the machinen established b* -\r.i*!e ÍS De:r.g rj:::.f J n* if-r natior.ai parliaments.
3221 JUDGMENT OF 30. 9. 1982 — CASE 242/81
In any event, the Council maintains that where the levy is destined, that is to sav, budgetary techniques other than those whether it will be appropriated to the consisting of classifying the revenue in Community budget or to national question as "own resources" may be budgets, and that consequently the used to achieve the result sought by the possibility of an infringement by the legislature, that is to say the non-parti Council of Article 201 of the Treaty on cipation of the Community in the costs the procedure for creating new resources of disposing of sugar surpluses and the for the Community has no effect upon assumption of responsibility for those the binding nature of the levy which has costs by the producers. For that reason to be paid. the Council contends that it is wrong to allege as does the applicant that the In that respect the applicant states that system outlined in Articles 28 and 29 of the use of taxes which the taxpayer has Regulation No 1785/81 can function to pay is of direct concern to him and he only if the levy in question is regarded as has an interest in bringing proceedings own resources within the meaning of with regard thereto. In addition the Decision 70/243 of 21 April 1970. applicant maintains that the question of the lawfulness of the appropriation of the In the Council's opinion it follows that proceeds of the lew at issue to the that argument is in no way relevant to Community budget is of primar)' the present case which concerns the importance in the present case. validity of Regulation No 1785/81 and that the applicant has not succeeded in Since according to Article 28 (2) and (3) showing either in fact or in law that it of the regulation the lev}· is intended to has a legitimate interest in bringing cover the financial losses resulting from proceedings against that appropriation. the export of sugar surpluses, that objective cannot be achieved if the The Council moreover states that the proceeds of the levy are not appropriated question of the appropriation of the to the Community budget. It is therefore proceeds of the levy in question is a essential that the question of the general measure of public finance lawfulness of the levy's appropriation be applying to all actual or potential clearly settled in the present action. producers of isoglucose and cannot be of direct and individual concern within the For those reasons the applicant considers meaning of the second paragraph of its action admissible since it is directed Article 173- of the Treaty to any against a regulation of direct and particular producer. individual concern to it.
3. In us reply Roquette on the one hand B — Substance continues to express the view that the contesied measure is of direct and 1. Roquette considers its action to be individui! concern to it and on the other »ell founded inasmuch as the production hand seeks to refute the Council's levy established by Anicie 28 of Regu argument to the effect that the action is lation No 1785/81 has been imposed on inadmissible because the applicant has no it in breach of the procedure laid down legitimate interest in bringing the action. in Anicie 201 of the Treaty and in disregard of Council Decision 70/243 of The applicant understands the Council's 21 April 1970 on the replacement of argument to be based on the view that it financial contributions from Member is a matter of indifference to the person Slates by the Communities' own re liable to the production levy to know sources.
3222 ROQUETTI FRÈRES v COUNCIL
In the applicant's view Anicie 2 of the applicant states that the levy in question decision distinguishes between "agri was not created until 17 May 1977 when cultural levies" and "customs duties" Regulation No 1111/77 was adopted, (subparagraphs (a) and (b) of the first that is to say seven years after the paragraph of Article 2) on the one hand adoption of Decision 70/243 of 21 April and "other charges introduced within the 1970. framework of a common poliev·" (last paragraph of Article 2) on the other. It In the second place the applicant observes that the second class of duties observes that the levy in question cannot presupposes that when creating new be covered bv the words "contributions resources for the Community the and other duties" in subparagraph (a) of the first paragraph of Article 2 of Council must adopt the procedure Decision 70/243 since the product on provided for in Article 201 of the Treaty. which it is imposed, namely isoglucose, did not exist in 1970. In that respect the The applicant considers that the levy in applicant observes that when isoglucose issue can be regarded only either as appeared it was included in the common "other charges" referred to in the last organization of the markets not in sugar paragraph of Article 2 of Decision No but in cereals because of its organic 7C/243 or as "contributions and other origin, namely starch from maize. duties provided for within the framework of the organization of the markets in The applicant states that isoglucose, sugar" referred to at the end of subpara which was originally defined as "glucose graph (a) of the first paragraph of Article with a high fructose content", came 2 of the decision. On that issue the under the common organization of the applicant observes that, since the Council markets in cereals until 1977, as is shown when creating the levy in question did by all the regulations concerning the not adopt the procedure for creating new establishment and administration of the resources for the Community as provided organizations of the markets in sugar in Anicie 201 of the Treaty, the point of and cereals. The applicant states that it law at issue in the present case is was not until the adoption of Regulation confined to the question whether the No 1111/77 of 17 May 1977 that isoglucose was excluded from the scope lew may be regarded as one of the of the Community rules on cereals and "contributions and other duties provided became the subieci-matter of special for within the framework of the organ rules distinct from those appertatmrïg-to" ization of the markets in sugar", as the sugar (on that issue the applicant refers Council and the Member States to the provisions of Regulation No understood that concept on the adoption 1I1C/77 and in particular Anicie 1 of Decision 73/243 of 21 April 1972. thereof) and it was not until the adoption of Regulation No 1785/81, the In that respect the applicant observes in subirct-maticr ot the present action, that the first place thai the choice of the isoglmose »as assigned to the sugar words "contributions and other duurs sector on the creation of a common proz¡dedfor" in subparagraph (al ot ihr organization in those two sectors. ¿irst paragraph ot Anicie 2 oí the decision means the exclusion thcrclrom The applicant maintains therefore that o! contributions and other duurs on inr Council could not legally assimilate transactions in lhe sugar sector srrJtrJ u> "own resources trom the sugar alter 21 April 19". ihat i^ io SJ* ali vector" such as provided tor in Decision duties and levies other than iht»»c No 'Z '2-»3 ot' 21 April 1972 a provided for by Regulation No ~ **· *>~ production lrv\ on isoglucose when until ol' IS December l%" on the common lu*l tsocJucosr neser came under that Organization oí ine market in sugar 1 tir common orgar.:7ation of the markets. It
3223 JUDGMENT OF 30. 9. 1982 — CASE 242/81 therefore considers that the Council stitutes, as was pointed out moreover by ought to have adopted the procedure the Court in its judgments in Cases provided for in Article 201 of the Treat)' 125/77 [1978] ECR 1991 and 103 and when establishing that levy. In the 145/77 [1978] ECR 2037. However, the applicant's view, to accept the contrary applicant considers that the concept of argument would be to allow the Council the common organization of the markets to create a new resource for the is not one of pure fact. The legal concept Community by simply amending the of the common organization of the wording of a tariff heading and thus markets provided for in Article 40 (2) of transferring a product from any common the Treaty and applied sector by sector organization to the common organ by the adoption of regulations clearly ization in the sugar sector. defining their respective scope in fact requires for obvious purposes of legal certainty that the ambiguity indulged in by the Council by the use of the term "sector" or "sugar market" instead of In that respect the applicant emphasizes "common organization of the markets in that the fact that the levy in question is the sugar sector" should be dispelled. In not described as "own resources" by the applicant's view, the fact that the Regulation No 1785/81 has no effect production lev\· on isoglucose was not upon the legal obligation imposed on the on 1 January 1971 included in "con Council by Article 201 of the Treaty to tributions and other duties provided for observe the procedure provided there within the framework of the organ under. In the applicant's view it is clearly ization of the markets in sugar" within apparent both from the eleventh recital the meaning of subparagraph (a) of the in the preamble to the regulation in first paragraph of Article 2 of Decision question and from Article 28 thereof that 70/243 prevents the levy, imposed sub ine aim pursued by the legislature in sequent to 1 January 1971, from being creating that levy is to offset the losses regarded as legally payable pursuant to incurred by the Community budget in that decision. financing the expon of surplus sugar. Accordingly the applicant maintains that such an aim can be achieved only if the proceeds of the levy in question are appropriated to the Community budget The applicant agrees with the Council as pan of the Communities' "own that the legal framework laid down by resources". It observes that, although Decision 70/243 must allow the Regulation No 1785/81 does not necessary adaptation of the financial law actually refer to "own resources" and of the Communities to technological the appropriation thereof, both are development resulting in the appearance implicit in the obiective ot' the contested on the market of new products and the regulation. creation of new situations. However, the applicant maintains that such adaptation must take place with due regard to the rules and procedures defined by Com· muniiv law and that Decision 7C/243 of In the same wjv the applicant referi to 21 April 1970 gives plenty of scope for the inclusion of isoglucose in the cereals that purpose. sector until 1 ^77 to reiute the Council's argument that such út jure inclusion yields to the ¡it facto inclusion of isogiucose in the sugar sector. The applicant doei not deny that sugar and The applicant understands that the effect isoglucose are c lose K linked as sub ot Article 2 of the decision is:
3224 ROQUETTE FRÈRES » COUNCIL
On the one hand, definitively to transfer they have as a matter of fact always been to the Communities the revenue from part of the same sector, namely sugar. levies, premiums, compensator)· amounts and other duties, including those levied On the first issue the Council states that under the Common Customs Tariff, "to Regulation No 1785/81 nowhere be established ... in respect of trade with provides that the levy in question is to be non-member countries"; regarded as part of the Communities' own resources. In the Council's view the On the other, expressly to reserve the destination of the levy is laid down in creation of other charges subject solely Article 4 of Regulation No 1110/77, to the obligation on the Communities to which provides that the object of the levy- observe the procedure provided for in on isoglucose is to reduce the losses from Article 201 of the Treaty. the expon of sugar surpluses and consequently to reduce the burden on the producers of sugar; its classification It states that the creation of the as part of the Communities' own production levy on isoglucose came resources is clear from the ninth recital within the second category and it does in the preamble to Regulation No not see why the appearance and 1111/77 and its appropriation to the development of isoglucose should have Community budget is a result of the been so unforeseeable that the charge adoption of the Community budget. The imposed upon that new product for the Council observes that the applicant's purpose of financing the surpluses of action is directed only against Regulation another product which already existed No 1785/71 and not against any of the could not have been adopted pursuant to measures referred to above. the machinen' laid down at the end of subparagraph (b) of the first paragraph of Article 2 of Decision 70/243. Further the Council points out that the nature of the production lew on isoglucose was substantially amended by For those reasons the applicant considers the adoption of Regulation No 1785/81 that in so far as Regulation No 1785/81 inasmuch as Anicie 28 thereof provides imposes a production levy on isoglucose that the levies on sugar and isoglucose in breach of the provisions of Anicie 201 must henceforth fully cover the financial of the Treaty and Decision 7C/243 of losses resulting from the exportation of the Council of 21 April 1970 it should be the sugar surpluses and no longer simply declared void. contribute to the reduction of those losses. In the Council's view it follows that the levy in question constitutes a 2. The Council of the European "genuine instrument for the adminis Communitiei considers thai the action is tration of the common agricultural unrounded. policy" and not own resources the creation of which is a matter for the The Council seeks to show on the one decision of the national parliaments hand that the levy in question is not under Amele 2CI of the Treaty. On that general budgetarv revenue the transfer of issue the Council refers to the argument which the national parliaments must which it put forward on the question of necessanlv approve and on the other the applicant's interest in bringing hand that, even it supar and isoplucose proceedings ' and contends that the have not al»avs lepaliv come under the case-law of the Court allows revenue same common organization, tor the originating in the application of such purposes of both the administration of measures of intervention or admin- the common agricultural polio and the application ot the financial rules thereof I — Sr- rafft .*:!· u· )*ľ: jr.'* f
3225 JUDGMENT OF 30. 9. 1982 — CASE 242/81
isiraiion to be regarded as "other adoption of the procedure provided for revenue" within the meaning of the first the creation of new own resources. sentence of Article 4(1) of Decision 70/243 of 21 April 1970.
In the Council's view, before Regulation In a general way the Council emphasizes No 1785/81 established a common that revenue from measures regulating system for isoglucose and sugar, the market in the sugar sector was isogluose de facto came under the appropriated to the Community budget economic sector for sugar. In that well before the adoption of Decision respect the Council states that, although 70/243 of 21 April 1970 so that it may at first isoglucose legally came under tne be said that that decision "was not really organization of the markets in cereals, responsible for the appropriation of the by the adoption of Regulations Nos levy to the budget". In that respect the 1110/77 and 1111/77 it became the Council states that the first sugar levy subject of a special system closely was established by Regulation No associated with the svstem for sugar, as 1009/71 without there being any is evidenced inter alia by Article 4 of provision as to its destination; it was Regulation No 1110/77, which provides appropriated to the Community by that revenue from the levy on isoglucose Article 1 of Regulation No 1892/68 of will go to reduce, within the framework the Council of 26 November 1968 of the basic regulation on sugar, the (Official Journal, English Special Edition losses from the financing of the exports 1968 (II), p. 575), which required the of sugar surpluses. The Council Member States, being responsible for its emphasizes that the factual dependence collection, to pay 90 °/o thereof by way of isoglucose on the sugar sector arises of their financial contribution to the from the fact — which can hardly be financing of the Guarantee Section of contested — that the two products are the European Agricultural Guidance and close substitutes for one another with the Guarantee Fund. In the Council's view result that the system relating to that precedent confirms that measures of isoglucose has no real independent the kind in question are not to be existence and is explicable only with understood as own resources to be regard to the common organization of established on the basis of Article 201 of the markets in the sugar sector. the Treaty but rather as measures regu lating the agricultural markets which may be adopted by the Council solely on the basis of Article 43 and which may give rise to revenue for the Community. In the Council's view, that fact and the de facto connection of isoglucose with sugar were recognized by the Court inasmuch as in its judgment in Case 125/77 [1978] ECR 1991 it held that in In the second place the Council relies on formulating the common agricultural the fact that sugar and isoglucose in fact policy the institutions were entitled to came under the same economic sector, take account of the interplay of different namely sugar, to counter the applicant's markets (paragraph 43 of the judgment) argument to the effect that the and in its judgment in Joined Cases 103 production levy on isoglucose, on the and 145/77 [1978] ECR 2037 it held assumption that u is to be regarded as that the Council was free to take anv part of the Communities' own resources, necessary measures compatible with necessitated. on its creation, the Community law for ensuring the proper
3226 ROQUETTE FRÈRES v COUNCIL functioning of the market in sweeteners, to create a levy on the new product but that is to say, sugar and isoglucose would not be allowed to apply to that (paragraph 86 of the judgment) and, levy the same financial rules as those finallv, in its judgments in Case 138/79 previously applicable to the sugar levy. [1980] ECR 3333 and Case 139/79 [1980] ECR 3393 it expressly recognized tht lawfulness of measures of the kind in issue as part of the common agricultural For that reason the Council considers policy. that the submission made by the applicant is quite unfounded since it is based on an artificial and formalistic distinction between two products which From that poini of view the Council are close substitutes for one another and considers that the production lew on for the purposes of the common agri isoglucose did not require the adoption cultural policy and the financial rules of the procedure for ratification by the appertaining thereto come under the national parliaments as provided in same sector, namely that of sugar. Anicie 201 of the Trean'. The Council considers that in ratifying the first paragraph of Article 2 of Decision 70/243 the national parliaments In addition the Council considers that in approved the definitive transfer, to the any event the submission is inadmissible Community budget as part of the as being irrelevant since it is aimed at Communities' own resources, of the measures which have created and ap proceeds of the levy payable "within the propriated the levy in question and framework of the organization of the which are in no way at issue in the markets in sugar" provided that the levy present case. was a necessary part of that organ ization. In support of that argument the Council refers to the opinions of Mr Advocate General Reischl in Case 125/77 [1978] ECR 2008 (at p. 2022, 3. The Commission of the European point (b)) and Mr Advocate General Communities, intervening in support of Mayras in Case 138/78 [1979] ECR 725 the conclusions of the Council, briefly (at p. 729, right-hand column, first recites the background to the Com paragraph). To contend, as does the munity rules on isoglucose and contends applicant, that the arrival on the sugar that the action should be dismissed as market of a new product, a perfect sub unfounded. stitute for sugar, requires the adoption of the procedure for creating a new resource for the Communities would in First, the Commission considers that it is the Council's opinion be a very not possible to interpret subparagraph (a) formahstic and unconvincing approach. of the first paragraph of Article 2 of The Council considers that such an Decision 70/243 of 21 April 197C in such interpretation »ould lead to an a narrow and literal way as the applicant appreciable reduction in the scope of the seeks to do. In the Commission's view Communities' own resource in respect of the verv words of that provision show- «.upar as technological development that the legislature did not intend to briiueh: on to the market products "freeze" the levies and customs dunes «.umnenne with sugar and that this transferred to the Community budget as «ouid involve a contradiction, namely the Communities' own resources in the mat the Council would be legally state in which ihev were on 21 April empowered under the existing rules on 197C. The general principle which the organization of the markets in sugar guided the legislature was that the dunes
3227 JUDGMENT OF 30. 9. 1982 — CASE 242/81 and levies "established or to be into force of Decision 70/243 of 21 April established" should be appropriated to the 1970 the Community has the power to Communities. The Commission contends impose financial charges on traders that the machinery has a dynamic simply on the basis of the provisions character which clearly appears from the establishing the various common policies wording of the provision, especially as and that it may deal with the revenue regards the market in sugar concerning from such levies by appropriating them which the choice of the words "contri to a particular use. The Commission sees butions and other duties provided for" confirmation of that statement in the shows that the Council did not intend to judgment of the Court in Case 138/78 restrict the transfer which was thereby [1979] ECR 713 and in the opinion of made solely to the levy on the sugar Mr Advocate General Mavras in the production in 1971. On the contrary, the same case ([1979] ECR 725, at p. 730, Council maintains that the transfer left-hand column). covered all contributions and other duties likely to be established in the sugar sector in order to help to achieve the aims of the common policy. In the Commission's view the levy in In the Commission's view that is the question falls exactly within that position in the present case. The fact that category, since the validity of financial liquid sugar and isoglucose are perfect charges imposed on isoglucose producers substitutes for one another, as has already been recognized by . the recognized by the Court in paragraphs Court and the connection between the 62 and 86 of its judgment in Joined revenue from the isoglucose levy and the Cases 103 and 145/77 11978] ECR 2037 financing of the common policy for and confirmed by the inclusion of sugar is beyond dispute, as that levy is isoglucose in the organization of the expressly intended to finance the expor markets in sugar created by Regulation tation of sugar surpluses (Article 28 of No 1785/81, shows that the rules Regulation No 1785/81). concerning isoglucose cannot be regarded as a collection of independent measures but on the contrary as an indispensable supplement to the common organization of the markets in sugar in order to ensure that the objectives of Accordingly the Commission expresses that organization may be achieved. For the opinion that, on the assumption that thai reason the Commission, referring to the levy in question is not pan of the the opinion of Mr Advocate General Communities' own resources, it is Reischl in Case 125/77 [1978] ECR nevertheless lawfully imposed since it 2C-8 (point (b) at p. 2022), considers comes within the category of "other that the Council could lawfully describe revenue" from the application of the the contested lew as "a contribution . . . measures for regulating the agricultural provided for »ithin the framework of the markets adopted to achieve the organization of the markets in sugar" objectives of the common agricultural within the meaning of subparagraph (a) policy. of the first parigraph of Anicie 2 of Decision 7:/2·0 ot 21 April 1970 in vie» of the át facto close connection between sugar and isogiucose. In the Commission's view it follows that The Commission states secondly and in the action must be dismissed as the alternative that'even after the entry unfounded.
3228 ROQUETTE FRERES » COUNCIL
IV — Oral procedure the European Communities, represented by R. Wainwright, Legal Adviser, At the sitting on 1 July 1982 Roquette, assisted by F. Lamoureux, a member of represented by M. Veroone of the Lille its Legal Department, presented oral Bar, the Council of the European argument. Communities, represented by D. Vignes, a director in its Legal Department, The Advocate General delivered his assisted by A. Bräutigam, an adminis opinion at the sitting on 23 September trator therein, and the Commission of 1982.
Decision
1 By application lodged at the Court Registry on 7 September 1981 SA Roquette Frères, a company incorporated under French law, asked the Court pursuant to the second paragraph of Anicie 173 of the Treaty to declare void Council Regulation No 1785/81 of 30 June 1981 on the common organization of the markets in the sugar sector (Official Journal 1981, L 177, p. 4).
2 According to Article 1 (1) thereof, the regulation covers inter alia "isoglucose", which comes under subheading 17.02 DI of the Common Customs Tariff, and "flavoured or coloured isoglucose syrups", which come under subheading 21.07 F III. The applicant is one of the main producers of isoglucose in the Community.
> In its defence lodged on 6 November 1981 the Council contended that the action was inadmissible. In the Council's view the action does not satisfy the conditions of the second paragraph of Anicie 173 of the Treaty inasmuch as the contested measure is not a decision in the form of a regulation and is not of direct and individual concern to the applicant.
The applicant claims that the contested measure is in fact a decision taken bv the Council with regard to isoglucose producers in the Communitv and is aimed at limiting their production by the establishment ot quotas and levies. The undertakings, of which there are nine in the whole of the Communitv, are known to the Council and are perfectly identifiable. The production quotas allotted to the regions are in fact equal to those of the undertakings.
3229 JUDGMENT OF 3C. 9. 1982 — CASE 242/81
For that reason the applicant maintains that although the contested measure is in the form of a regulation it is of direct and individual concern to the applicant as a producer of isoglucose and the applicant may in consequence bring an action under the second paragraph of Anicie 173 for a declaration that the decision is void.
5 To decide between those two opposite views it is necessary first of all to recall the established case-law of the Court on the criteria distinguishing a regulation from a decision, including one in the form of a regulation.
« According to the second paragraph of Article 189 of the Treaty the criterion for distinguishing between a regulation and a decision is whether or not the measure in question has general application. For that purpose it is necessar io consider the nature of the contested measure and in particular the legal effects which it is intended to have or does in fact have.
: As the Court held in its judgment of 26 February 1981 in Case 64/80 F. Giuffrida and C. Campogrande [1981] ECR 693, a measure does not cease to be a regulation because it is possible to determine more or less exactly the number or even the identity of the persons to whom it applies at any given time as 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.
. Although the application is for a declaration that Regulation No 1785/81 is void, the applicant maintains simply that the production levy on isoglucose provided for bv Anicie 28 thereof has been established in breach of the procedure laid'down in Anide 2C1 of the Treaty and in disregard of Decision 7C/243 of the Council of 21 April 1970 on the replacement of financial contributions from Member States by the Communities' own resources (Official Journal. English Special Edition 197C (I), p. 224). Thus the case is solely concerned with the production levy on isoglucose.
- Anicie 2S of Regulation No 1785/81 does not fix the amount of the levy for each producer of tsoglucose. Moreover, the amount cannot be directly inferred from us provisions; on the contran, it provides that the amounts of the levies are to be adopted in accordance with the procedure laid down in
3230 ROQUETTE FRERES v COUNCIL
Anicie 41, that is to say a procedure involving the Commission, the Management Committee for Sugar and, if necessary, the Council. According to the provisions of Article 28 the amounts of the levies depend on objective factors, albeit complex ones which vary with each marketing year and take into account in particular the production of sugar and isoglucose in the Community, the export costs borne by the Community and the production levies on sugar and isoglucose.
10 It follows from that that the provisions of the regulation the legality of which the applicant is challenging are of general application and do not in themselves have individual and direct effects for the applicant.
ii Pursuant to the second paragraph of Article 173 of the Treaty the application must therefore be dismissed as inadmissible.
Costs
12 Under Article 69 (2) of the Rules of Procedure the unsuccessful paru· is to be ordered to pay the costs if they have been asked for in the successful party's pleading. Since the applicant has failed in its submissions, it must be ordered to pay the costs including those of the intervener.
On those grounds.
THE COURT (Second Chamber)
hereby:
1. Dismisses the application as inadmissible;
3231 OPINION OF MR RUSCHI — CASE 242/81
2. Orders the applicant to pay the costs including those of the intervener.
Due Chloros Grévisse
Delivered in open in Luxembourg on 30 September 1982.
J. A. Pompe O. Due Depun- Registrar President of the Second Chamber
OPINION OF MR ADVOCATE GENERAL REISCHL DELIVERED ON 23 SEPTEMBER 1982 '
Air President, submitted that the introduction of a Members of the Court, production lew for isoglucose by means of Regulation No 387/81 (Official Journal 1981, L 44, p. 1) was unlawful because the Council did not have the The case which I turn to now also power to create own revenue of that concerns isoglucose. nature, takes the view that the same applies to Regulation No 1783/81 and The subiect of the dispute on this to the system of levies applying to occasion is Regulation No I7S3/S1 of 30 isoglucose contained in it. June 1"81 (Official Journal 1981. L 177, p * on the common organization of the markets in me sugar sector, which entered into lorce on 1 Julv 1981 It has therefore brought the matter before the Court and is seeking a declaration that Regulation No 1785/81 I: applies hot h to \uzir and to isoglucose is »oid. at least in so far as us provisions Anicie Ii a r. ti torv.jim in partierna: in concern the applicant. On the basis of \nuir 2* ei »e.; a »» stem of quota» and the introductor».· observations in the provision» i,'n> e rr.inr; a production lew application, this is to be understood as .- rr*.[->r>·. .·· :ne marKeting ».ears meaning that the applicant seeks a 1**1*2 Į *•*» * *·> declaration of nullit» ot Articles 24 and 2;> in so far as those articles contain a lhe under a»...-.c Roqurttr frère». » nich svsiem of quotas and levies for aiso Drouţn: Li\e 11* íl ar.c in u isogiucose.
3232