OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 16 JUNE 1964 (*1)

Mr President,

Members of the Court,

We know from other cases that under Article 235 of the Treaty the Council of Ministers of the EEC took a Decision on 4 April 1962 to enable remedial measures to be taken should difficulties arise in trade between Member countries in processed agricultural products, owing to the fact that under the Treaty the system applicable to these products is different from that applicable to the primary products.

In pursuance of the abovementioned Decision of the Council the Commission made a Decision on 28 November 1963 (published in the Official Journal 1963, pp. 2914 et seq.) authorizing the French Government, at its request, to levy until 1 December 1964 countervailing charges of a specific amount on imports of glucose (dextrose) from the Federal Republic of Germany, Belgium, Luxembourg and the Netherlands, unless these charges were already being levied on exports.

The applicant, a Belgian firm producing glucose, considers the measure adopted by the Commission harmful to its sales prospects. It therefore seeks the annulment of the authorizing Decision.

In the course of the written procedure, the Commission objected in the first place that the application was inadmissible. During the oral proceedings on 28 May the parties concerned argued this point at length. My opinion today will therefore also bear exclusively on this question of admissibility.

Legal consideration

These questions of admissibility are not new to us. As both parties have rightly pointed out, other cases have already given the Court an opportunity to form an opinion on some aspects of this matter. I should like, however, to state explicitly that this fact will not prevent me from considering with an open mind the problems which are at issue today. For not only is it quite certain that these problems are not absolutely identical to those raised in another case, but furthermore it is natural that as the Common Market develops facts may appear which by reason of their novelty and the impossibility of foreseeing them may compel us to modify hitherto well-established legal opinions.

The present application relies on the second paragraph of Article 173 of the Treaty, which gives to any natural or legal person the right to contest decisions which either are addressed to them or, although addressed to another person, are of direct and individual concern to the applicant. As the contested measure in the present case is undoubtedly a decision, and one which is not addressed to the applicant, I shall concern myself solely with the interpretation of the second possibility of instituting proceedings and more especially with the single question whether or not the applicant is directly and individually concerned, as, according to previous cases, it is known that ‘another person’ within the meaning of Article 173 can also include Member States.

If first we deal with the criterion of ‘direct concern’, we find that the applicant has not put forward very precise or detailed arguments in support of its endeavour to interpret the phrase in its favour. It refers to the Plaumann judgment, in which the Court recognized the principle that clauses of the Treaty concerning the right of appeal should not be interpreted narrowly (Rec. 1963, p. 222), it calls attention to the need to interpret the Treaty, which regulates matters of economic law, in a practical and realistic manner, and it refers to the concept of ‘intérêt direct’ which in French administrative law plays a part in the definition of a right of action, and to the fact that the French Government was determined to make use of the authorization it had requested. It concludes from all this that the authorization constitutes the necessary cause of prejudice to the applicant's legal position.

There is some justification for these arguments, of course. I, too, think it is right that the Treaty provisions providing legal protection should not be interpreted restrictively, and I also think it necessary not to lose sight of the objective of the EEC Treaty, which is to impose order on economic circumstances which possess their own dynamism and for which, consequently, new concepts must be created (as in the case of national taxation laws, for instance).

But this does not release us from the obligation to find a scheme for the Treaty based on fairly well-defined concepts, for the Treaty cannot be applied without taking into account the demands for legal certainty. I think it particularly inadmissible to disregard the criteria contained in the Treaty, without attempting to give them a meaning which not only guarantees a reasonable result, but also comes as close as possible to the literal meaning of the text.

In so doing one may have recourse from time to time to national legal institutions. But it should not be forgotten, on the other hand, that the Treaty is not meant to be a copy of any particular national system; its structure is too idiosyncratic for that purpose and to a large extent it has no parallel in national laws. Furthermore, in the very shaping of the system of legal protection no reason existed to achieve this end because the systems of national legal orders continue to exist parallel with the system laid down by the Treaty and in many cases afford sufficient protection. From this point of view, there is no reason to concede a priori that the Treaty accords to the criterion of ‘direct concern’ the same meaning as that accorded by French law to the criterion of ‘intérêt direct’.

When the applicant tries to interpret the requirement of ‘direct concern’ as meaning that the existence of any causal connexion between the contested measure and the interests damaged is sufficient, the Commission is perfectly justified in objecting that the concept of causality covers not only direct but also indirect causality. We know this from the law on damages, where indirect causality may be considered sufficient to attribute liability for injury (as in German law), or where as a general rule only direct causality may be taken into consideration (as in English law).

The adjective ‘direct’ must therefore refer to something other than causality. Looking for examples of the application of this concept in national law one comes across legal institutions such as indirect administration by the state (‘mittelbare Staatsverwaltung’), as opposed to direct administration (‘unmittelbare Staatsverwaltung’), indirect as opposed to direct possession in the laws governing the relationships of persons to property (‘Sachenrecht’)… These differences are characterized mainly by the existence of an intermediary between the object and the person who acts indirectly, and this intermediary is above all a person endowed with his own will and independence.

Bearing in mind the well-known structure of the Treaty, the obvious thing to do is to give to the word ‘direct’ in Article 173 the meaning which I advocated in the Plaumann case. It is characteristic of the application of the Treaty that the Community institutions often deal only with state bodies authorizing, as in the present case, Member States to act in a certain manner, and moreover leave it to their discretion whether, and in what manner, they will make use of the authorization. In such a case the national legal measure which follows the Community measure is, by virtue of motivation and form, of such considerable weight that it must necessarily come between the legal effects of the Community measure and the individual. I fail to see how, precisely in the case of an authorization given to a Member State, it is possible to take the view that Community citizens are thereby directly concerned, without depriving this concept of its essential meaning.

When the applicant objects to this view on the ground of the continuity in intention of the Member State applying for the authorization, as shown by the fact that it immediately made use of this authorization when granted, the fact that this occurred in the particular instance should not deter us from carefully distinguishing between the different factors in the situation. The Commission's representative has given some striking examples to show that an authorization is certainly not always utilized. There may be changes in the political intentions of the Member State, because of a better understanding of the situation, because of a change in the composition of the political decision-making organs or in the economic situation, because of obstacles raised by national law or because the Commission has made its authorization subject to conditions which discourage the Member State from using or making full use of the authorization. Particularly where authorizing measures addressed to Member States are concerned it is not possible to ascertain with any certainty from the authorization itself if and to what extent individual interests will be affected thereby. The extent to which the interested party is effectively concerned results here rather from subsequent deliberate action on the part of an autonomous national authority. However, if this effect cannot be deduced with certainty from the contested measure itself, but results on the contrary from a subsequent autonomous measure, which the Member State concerned is always free to adopt or not, it cannot be said that the authorizing measure is of direct concern to individual persons.

I therefore come to the same conclusion as in the Plaumann case; there is no right of action because the contested measure does not directly concern the applicant.

2. Let us now consider whether at least the second condition of Article 173 is fulfilled, that is to say, is the applicant concerned individually?

On this point, the Commission refers to the judgment in the Plaumann case, which says: ‘Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the person addressed.’ It points out that, in the final analysis, we are dealing in this case with measures which are legislative in their effects, because the Member State cannot make use of its authorization otherwise than by legislative measures. The class of persons concerned cannot therefore be ascertained and thus the identification of the individual persons concerned in the sense of the Plaumann judgment is impossible.

It cannot be denied that there are many arguments in favour of this view, especially in the light of all that has been said above, as the answer to the question of ‘concern’ is supplied by the national implementing measures. But this should not prevent us from considering further the arguments set forth in the application.

The applicant considers that the question of individual concern must be considered separately according to country, because the Commission itself has treated the countries differently when taking its Decision and excluded Italy from the rules. The applicant points out that in Belgium it is to all intents and purposes the only glucose producer both willing and able to export to France. The possibility of new producers joining the class of persons concerned may be ruled out during the period of validity of the authorization (one year).

I submit that this opinion is mistaken if it requires that the authorizing Decision be split up according to country. The purpose of the Decision is to enable measures to be adopted to protect French glucose producers against glucose imports from other countries inside and outside the Community. Italy could be excluded from the Decision only because, according to the Commission's findings, it does not export glucose. On the other hand, as regards all other countries of the Community and the question whether protection is needed, the measure constitutes a single and coherent whole. It therefore cannot be split up into as many individual decisions as there are exporting Member States because, according to the general scheme of the measure adopted, there was no need to make individual, distinct decisions for each of the various Member States. Consequently it must be said that all glucose producers in all the Member States, except Italy, are affected by the contested measure.

However, it appears from the Commission's statements that there are in the Community a mere dozen or so glucose producers in all, who may be generally divided into two groups. Moreover the applicant is right in saying that this number will remain practically unchanged during a single year, since production cannot be started as easily as can a trading activity, the more so when sales prospects are diminished by protectionist measures in the Common Market.

Bearing in mind these particular facts, we must therefore consider the question whether the applicant is individually concerned.

A positive answer to this question is favoured by the purpose of the measures authorized, which is to protect French glucose producers from foreign competition, and consequently by its very nature from the productive activity of foreign competitors. I doubt, however, if this narrow view is justified. Even without going as far as the Commission, which points out that in addition to glucose producers the measure concerns producers of primary products, traders, exporters and importers, processers and consumers — a point of doubtful relevance, because there are obviously great differences in the type and degree of the various individual interests concerned — nevertheless, it should not be overlooked that the first effects of the authorizing Decision are on international trade. The main purpose of this protective measure is to make it more difficult to sell foreign glucose in France and therefore to decrease imports. For this reason I do not think it appropriate to restrict our survey to the position of producers, when questions of individual concern are raised. All those concerned in trade in this product, exporters as well as importers, should be included. However, the number of possible parties concerned thus becomes not merely larger, but illimitable and therefore unascertainable. We are faced with a measure involving a product, affecting anyone who is dealing with that product and anyone who plans to sell it in France — in other words this is clearly a measure which is legislative in its effects. There can, therefore, be no question of its affecting the applicant individually, in particular by reason of attributes peculiar to it — to quote the Plaumann judgment.

On this ground also the application should be dismissed.

3. To sum up, I conclude that the objection of inadmissibility put forward by the Commission is well founded. The application should be dismissed as inadmissible and the applicant should pay the costs.

As for the other submissions, it should be pointed out that the procedural law of this Court does not follow for compulsory intervention by the French Government. With regard to possible claims for damages, the right to make such claims is reserved in the application, but they are not specifically pleaded. I take this to mean that the appropriate conclusions would only be submitted if the contested Decision were annulled. In finding the application inadmissible, we may dispense with an examination of the question whether there is any liability on the part of the administration.

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(*1) Translated from the German.