OPINION OF MR ADVOCATE-GENERAL REISCHL

DELIVERED ON 5 DECEMBER 1973 (*1)

Mr President,

Members of the Court,

Regulation No 136/66 of the Council of 22 September 1966 (OJ No 172 of 30. 9. 1966) established a common organization of the market in oils and fats. As from 1 July 1967 it also applies to colza and rape seed as well as rape oil manufactured therefrom (Regulation No 225/67 OJ NO 136 of 30. 6. 1967). Having regard to the level of target prices with the Community and the lower level of world market prices, it provides, for the purpose of inter alia reducing the cost price to oil mills of colza produced within the Community, for the grant of subsidies amounting to the difference between the target price and the world market price. Mention must also be made of the fact that having regard to the difficulties facing Italian oil mills — their distance from the main colza producing areas — additional subsidies are granted for colza and rape seed processed in Italy. The first time this happened was by Regulation of the Council No 876/67 (OJ No 281 of 21. 11. 1967), which in the first instance was limited to the marketing year 1967/68 and which made provision for subsidies amounting to 0·675 u. a. per 100 kg of oil seeds. During the following marketing years this special scheme was retained on each occasion. During the marketing year 1972/73 this was done by Regulation of the Council No 1336/72 (OJ No 1147 of 29. 6. 1972) the rate of subsidy on this occasion being reduced to 0·8 u.a. after having in previous years been raised to 0·85 u.a.

Firma Holtz und Willemsen, which was an oil mill in Krefeld-Uerdingen (North Rhine-Westphalia), inter alia processing rape oil from colza and rape seed, considers this special provision to be discriminatory within the meaning of Article 7 of the EEC Treaty. In this connexion it relies on the fact that, colza production in the immediate surrounding area not being sufficient, it also has to obtain colza over greater distances (that is from Northern France and Schleswig-Holstein), and that it is therefore subject to difficulties similar to those faced by oil mills in Northern Italy. In its view this discrimination results in Italian oil mills being able to acquire the Community products at substantially intervention price, whilst other mills have to process more expensive imported colza and for that reason also cannot compete with the Italian prices for colza oil-cake — particularly in Southern Germany.

It was with a view to changing this situation, that Firma Holtz und Willemsen accordingly, by letter of 29 January 1973, approached the Council and the Commission of the European Communities. To the Council they addressed a request, pursuant to Article 175 of the EEC Treaty, to enact a regulation that would also provide an additional subsidy for other oil mills far from the various production areas and in this connexion the applicant, relying on a 1972 proposal of the Commission for regionalizing this subsidy for oil mills in such situations, was thinking in terms of a subsidy amounting to 0·6 u.a. It requested the Commission to submit such a proposal to the Council.

The Commission replied on 8 March 1973, agreeing to examine the matter. However, it did not submit the requested proposal to the Council but instead, for the marketing year 1973/74 also, a subsidy was provided only for Italian oil mills (as can be seen from Regulation No 1357/73 of 15 May 1973, OJ L 141 of 28. 5. 1973). On 23 March 1973 the Council replied stating that its Regulations for special subsidy to Italian oil mills were in conformity with the Treaty.

Thereupon, by application received on 21 May 1973, Firma Holtz & Willemsen commenced an action before the Court.

The applicant claims that the Court should:

(a)Declare that the Council in infringement of the Treaty, has failed to enact a regulation for an additional subsidy for colza and rape seed processed in oil mills far from the production areas and providing, inter alia, in the case of an oil mill situated in the Federal Republic of Germany in the Land of North Rhine-Westphalia for the payment of an additional subsidy of 0-60 units of account per 100 kg of colza and rape seed;

(b)Declare that the Commission, in infringement of the Treaty, has failed to submit a proposal to the Council to this effect.

Thereupon, on the basis of Article 91 of the Rules of Procedure the defendant's applied for a preliminary ruling as to the admissibility of the action and for it to be declared inadmissible.

This question was argued in the course of the oral proceedings on 21 November 1973. It is now my task to examine whether the objections raised by the defendant Community institutions against admissibility are well-founded.

1.As regards the action against the Council it must in the first place, having regard to certain terminology used in the application, be made clear that this is an application based purely upon failure to act and not an action to set aside, directed against the reply of the Council of 23 March 1973. The applicant itself expressly drew attention to this in the course of the oral proceedings. Questions of admissibility therefore fall to be examined only in the light of Article 175 of the EEC Treaty.

In this connexion, the Council's main objection is directed against the applicant's complaint that there has been an omission to amplify a Community Regulation, i.e. that there has not been the promulgation of a legislative act. In its opinion this does not correspond to the conditions applying to actions for failure to act brought by natural or legal persons under Article 175, third paragraph, of the EEC Treaty, since such interested parties can only submit that a Community institution has failed to address any act other than a recommendation or an opinion to a person who has previously made an appropriate request to that effect. This means that natural or legal persons can only complain of the failure to take a measure of specific concern to them.

In relation to this argument various points have been established by this existing case law.

According to the case law of this Court one must proceed from the fact that Article 173 of the EEC Treaty, i.e. the provision concerning actions to set aside, and Article 175 of the Treaty, i.e. the provision on actions for failure to act, constitute provisions relating to the same legal remedy. This means that it could be appropriate to give a similar interpretation to acts that can be made the subject of legal proceedings by private individuals whether by way of an action for annulment of an act actually promulgated or by way of complaint that a Community institution has failed to promulgate an act. In this respect I refer to the judgment in Case 15/70 (Chevally v Commission, (Rec. 1970, p. 979).

Moreover, as regards Article 173, second paragraph, pursuant to which any natural or legal person may institute proceedings against a decision which, though in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former, it has been made clear that real regulations cannot be impugned under this provision. In this connexion, the term ‘regulations’ must be understood as legislative acts the provisions of which are applicable not to a limited circle of defined or definable persons, but to categories referred to in an abstract manner (Vide Case 16 and 17/62 — Confédération nationale des producteurs de fruits et legumes, and others v Council, (Rec. 1962, p. 979) or — as it is stated in judgment 6/68 — Zuckerfabriek Watenstedt GmbH v Council, (Rec. 1968, p. 619) — which has legal effects on classes of persons defined in a general and abstract manner. (Cf. also in this context the judgment in Case 30/67 (— AG Industria Molitoria Imolese v Council (Rec. 1968, p. 183). Accordingly private persons can proceed only against decisions and against such regulations as have the appearance only of a regulation but which as regards their legal character must be treated as decisions — and this only subject to certain further conditions that are not of interest in the present context. This emerges clearly from Judgment 16 and 17/62 (and indeed this was really the situation in Cases 41 to 44/70 — International Fruit Company and others v Commission (Rec. 1971, p. 422).

Since for the purpose of capacity to sue under Article 175, third paragraph, the important factor is the legal nature of the decision which is asked for (vide in this context the judgment in Case 30/59 (De Gezamenlijke Steenkolenmijnen in Limburg v High Authority (Rec. 1958-1959, p. 37) it follows both from the conclusions referred to, as well as from the terminology used in Article 175, third paragraph — ‘to address to that person any act…’ — that this provision also excludes the possibility of admitting complaints by private individuals to the effect that there had been an omission to make a regulation. This was expressly underlined in relation to ‘general provisions’ in Case 15/71 — Mackprang v Commission (Rec. 1971, p. 803); as regards actual regulations the question was clearly decided in Case 42/71 — Nordgetreide v Commission (Rec. 1972, p. 110).

If one applies this case law to the present proceedings, then the decisive question is whether what the applicants seek to bring about, i.e. extending the subsidy regulation to oil mills in North Rhine-Westphalia, actually amounts to a real regulation within the meaning of the Treaty. I can give you my conclusions at the outset — there cannot in my view be the slightest doubt that this is the case.

Admittedly, the applicant argues that the measure it wishes to see taken applies only to an area in which, apart from the applicant, there are only six other interested parties; that furthermore, it cannot be disputed that this circle of parties affected was definable at the time when the regulation should have been made. However, it is crucial that the measure desired would have to be a provision having a permanent character, valid for at least a year. In the case of such measures one cannot for the purpose of defining their legal character refer to the point of time when they were promulgated or to some other point of time and ask who, looking at the matter in this way, is affected by them. This was expressly underlined in Judgment 6/68. Rather must one ask what range of parties is, during the complete period of validity of such a provision, brought within its ambit. In the present case it is clear that the circle of persons affected can change, that it does not seem capable of definition, that therefore the parties to whom the measure is addressed can only be delimited in an abstract sense, as it is said in the relevant case law. Beyond this and quite apart from the fact that to implement the principle which the applicant regards as crucial (a progressive system of special subsidies related to the distance from the production areas) would render necessary an extension of the provision to wider areas and would even — as the defendant has shown — involve a remodelling of the whole subsidy system, having regard to the inter-connexion between the provisions on the organization of the market.

Accordingly, there can be no question that the measure sought is in the nature of a regulation, and according to the case law it would follow from this that there can indeed be no possibility of treating the action as admissible. However, as regards some of the applicant's arguments it still remains to be examined whether there is not nevertheless some way of avoiding this rather unsatisfactory result. As you know, the applicant regards it as important that the principles developed in relation to Article 173, second paragraph, should in relation to Article 175, third paragraph, only be applied in an analogous fashion. As regards Article 173, second paragraph, in the applicant's view it may be said that in that context there is no requirement of legal protection necessitating the admission of actions by private parties against regulations, since there are possibilities of contesting implementing acts based upon the regulations and for the legality of the regulations thus to be questioned. Since however, the applicant takes the view that there is no such possibility where a general measure only favours specific circles and when persons not included therein seek an extension of the measure, one feels bound in relation to Article 175 to favour a point of view — with the object of avoiding a gap in the system of legal protection — that results in real regulations being likewise eligible as the subject matter of an action — at any rate where the applicant is individually and directly affected by its nonpromulgation.

On closer examination, however, it will be seen that a result favourable to the applicant cannot be achieved on this basis.

Firstly, one can also think in terms of regulations that do not involve implementing acts, so that — excluding regulations as contestable acts — Article 173 also will occasionally leave gaps in the system of legal protection under the Treaty. Furthermore, even if one accepts the principle illustrated in the judgment in Case 25/62 (Plaumann v Commission, Rec. 1963, p. 237)

of not interpreting Treaty provisions in the right to sue in too restrictive a fashion, yet one cannot go so far as to ignore a system that clearly emerges from the Treaty. The Court emphasized this point in Case 6/68. Since, however, the system of the EEC Treaty clearly excludes the right of individuals to sue in relation to Community regulations — this emerges particularly from its original history and from a comparison with the different system under the ECSC Treaty — it is not really justifiable to declare the action against the Council admissible on the basis of general considerations concerning the desirable delimitation of legal protection, though they might certainly de lege ferenda be worthy of attention.

Accordingly, this only leaves us with the conclusion unfavourable to the applicant. Since moreover this result is in my view quite unambiguous it seems equally unnecessary to go into further objections raised by the Council.

2.In the action against the Commission the latter is accused of not having submitted to the Council a proposal for a Regulation such as the applicant considers essential for extending the subsidy system. Likewise on the question whether this argument can properly be pursued by proceedings before the Court, a number of objections were raised.

One need not however, go into the details. For basically — after what has been said in relation to the action against the Council — all that needs saying concerning admissibility of the action against the Commission, has been said.

It has in fact been rightly stressed that the proposals on the part of the Commission are part of the legislative process of the Community. From this it was furthermore correctly concluded that a proposal by the Commission, as regards its enforceability pursuant to Article 175, paragraph 3, of the Treaty, cannot be looked at in a way different from that appropriate to a regulation of the Council made on the basis of such proposal.

3.Accordingly, I can summarize my opinion as follows:

The objections on the part of the Council and the Commission against admissibility of the action are well-founded. The action ought to be rejected as inadmissible and the applicant ordered to bear the costs of the proceedings.

*

(1) Translated from the German.