OPINION OF MR ADVOCATE-GENERAL GAND

DELIVERED ON 11 MARCH 1965 (*1)

Mr President,

Members of the Court,

Getreide-Import, a trading company incorporated under German law with the object of carrying on foreign trade and in particular the import of cereals and animal feeding-stuffs, is applying to you for the annulment of a Decision of the Commission of the European Economic Community of 25 June 1964 which, in the context of Regulation No 19 on the progressive establishment of a common organization of the market in cereals, fixed the c.i.f. prices of these cereals, and in particular of sorghum, for 26 June 1964. It maintains that, contrary to the provisions of Article 10 (2) of Regulation No 19 and Article 1 (1) of Regulation No 68, this price was not fixed on the basis of the most favourable offers on the world market. It also contends that, contrary to Article 190 of the EEC Treaty, no reasons were given for this Decision. Alternatively and on the same grounds, it requests you to annul the Decisions of the Commission of 23 and 24 June 1964 determining this price for 24 and 25 June 1964 respectively.

As in other similar cases either already settled or still pending before you, the Commission contends that this application is inadmissible and has requested that a decision be given on this preliminary objection under Article 91 of the Rules of Procedure of the Court.

In my opinion, therefore, I will only deal with the problems of admissibility under the second paragraph of Article 173 of the Treaty, which was the only question to be discussed at the hearing. But it is first necessary to define the scope of the contested Decisions within the context of the common organization of the market in cereals.

The particular aim of this organization is to free the international trade in these foodstuffs from all quantitative restrictions and from all other obstacles by replacing them with a system of levies applying to trade both between Member states and between Member States and third countries. The aim of this system is to harmonize the various price levels and avoid market disturbances. As regards imports from third countries, the levy charged by the importing Member State for its own benefit is equal to the difference between the level of prices in the importing country and the purchase price as determined according to Article 10 of the Regulation; these two factors in the calculation are determined as follows: each Member State fixes its ‘threshold price’ annually for the following marketing year. The purchase price (c.a.f. price in French, c.i.f. price in the other three Community languages) is established by the Commission on the basis of the most favourable offers for a frontier crossing point chosen by each Member State. Regulation No 68 provides that for this purpose the Commission shall take into account all offers available on the world market of which it is made aware either through Member States or through its own means, as well as of the prices quoted on the major exchanges.

You have in the file the measures contested by the applicant company. Each of them appears as a decision of the Commission, based on the offer prices and the daily rates and fixing in an annexed table the c.i.f. price applicable for each cereal from the day following the date of the decision until a subsequent adjustment is made (in fact this price-fixing takes place every working day). The price is different not only for each cereal but also for each Member State because, as a result of the differences in transport costs to the frontier crossing point, that offer which is the most favourable for five States may not be so for the sixth. According to Article 3 thereof, the Decision is addressed to all Member States; the Commission tells us that it is notified to the Federal Republic on the same day by telex to the latter's representatives at the Communities. But the annexed tables comprising the c.i.f. prices are also published each week in the Agricultural Supplement to the Official Journal.

Once this information is known, it only remains for the competent agency in each State to calculate the rate of levy, a purely arithmetical operation involving no measure of discretion. In the Federal Republic, it is the task of the Einfuhr- und Vorratsstelle fur Getreide- und Futtermittel. Under Article 16 of the Regulation, when the importer applies to that agency for an import licence, which is in general valid for four months, the amount of the levy will either be that applicable on the day of importation or, if the party concerned so prefers, that applicable on the day of lodging the application plus a premium.

It was in these circumstances that on 26 June 1964 Getreide-Import Gesellschaft applied for and obtained an import licence for 1000 metric tons of sorghum originating in the United States. It is not disputed that the rates of levy applying to the unloading of sorghum from the United States during the month of June are based on a c.i.f. price of 51 units of account, fixed by the Decision of the Commission of 25 June 1964 and valid for 26 June 1964. The company maintains that this price was improperly fixed on the basis of an offer involving unloading in the second fortnight of July or the first fortnight of August, although offers had been made for large quantities available in June, but at higher prices. It requests you therefore to annul the Decision of the Commission fixing this price at 51 units of account.

II

The admissibility of its application must be considered in the light of the second paragraph of Article 173 of the Treaty which provides:

‘Any natural or legal person may, under the same conditions (that is, as in the first paragraph), institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.’

We are dealing with a decision intended for Member States, addressed to them and concerning each of them to the extent that it fixes the c.i.f. price at the frontier crossing point. For the applicant company to have locus standi, this Decision must, inasmuch as it deals with the price of sorghum, be of both direct and individual concern to the company. These are the two points which have to be settled.

In your two judgments in Cases 25/62, Plaumann (Rec. 1963, p. 109) and 1/64, Glucoseries Reunies. (Rec. 1964, p. 813), your finding that the second condition was not fulfilled dispensed with the need to decide whether the applicants satisfied the first, a question to which the Advocate-General gave a negative reply. I must, however, consider it, all the more so because at the hearing the representative of the Commission, reconsidering the position which he had adopted in its defence, admitted that the contested Decision was of direct concern to Getreide-Import Gesellschaft and requested you formally to give a ruling on that point.

Two points of view may be adopted here. On the one hand, a formal point of view shows that after a decision of the Commission at least one measure is taken by a Member State: in this case two such measures were taken — the general fixing of the levy by the Import Office under Article 6 of the German Law of 26 July 1962 applying Regulation No 19 and also its individual fixing for a specific transaction; it may be concluded from this that the Decision of the Commission fixing the c.i.f. price is only of indirect concern to the individual.

On the other hand, one looks at reality and inquires whether the Member State has any measure of discretion in the decision which it is led to take for, if not, if it merely performs, irrespective of its own will in the matter, a task conferred upon it by the Commission and if it acts as an authority of ‘the indirect Community administration’, then it is no exaggeration to say that it is the decision of the Commission which directly governs the position of the individual. And it has been observed here that a close relationship existed between the interpretation of the direct concern required by the second paragraph of Article 173 and the question whether decisions may also confer direct rights on individuals, that is to say, whether the individual may claim before his national court that an act of the Community or of a Member State is contrary to a decision.

In the assessment of the nature and scope of a decision the important consideration are less its form that its content and actual effects (see in particular Joined Cases 16 and 17/62 Confederation Nationale des Producteurs de Fruits et Legumes, Rec. 1962, p. 903). I must therefore accept the submission of the Commission that, where the intervention of the Member State is a purely technical implementation, the Community decision is of direct concern to the individual. This is certainly the case here; for, once the c.i.f. price is fixed, the competent agency in the Federal Republic has no measure of discretion to fix the levy during the cereal marketing year. And the State is bound to impose that levy laid down by the Regulation.

You will note that the situation was rather different in the two cases in which you have already given judgment. One case concerned a refusal to authorize the Federal Republic to make a partial suspension of customs duties applicable to certain products from third countries (Plaumann), the other authorization granted to the French Republic to impose countervailing charges on the import of glucose (Glucoseries Reunies); in both cases the decision of the Commission was only of indirect concern to the applicant importers. It is clear in the case of the grant of an authorization that a Member State is free to use it or not; according to Mr Advocate-General Roemer, this is true even in the case of a refusal, for it is for the State to use its governmental discretionary power to decide whether it intends to continue to pursue its original aim by means of review procedures or to accept a decision the reasons for which it may consider valid.

III

However, the admissibility of the application also presupposes that the applicant is individually concerned by the decision which he is contesting. In its application for a decision on a preliminary objection, the Commission enumerated at length all the categories of persons concerned by the fixing of the c.ii. price for sorghum. The information which I have given shows that they are primarily all those intending to import that cereal on the date in question or at least to ask for the advanced fixing of a levy for imports to be made during the currency of the licence. A deeper study of the very complex arrangements instituted by Regulation No 19 — a study into the details of which I shall not venture — would show that this price also has repercussions on the levy due from importers of processed sorghum-based products. In the same way it determines the maximum refunds which may be granted on exports of sorghum or processed sorghum-based products to third countries or Member States. It concerns therefore not only importers but also exporters, and even all those who wished one day to conclude contracts of purchase or sale with such importers or exporters. Finally, although the criticized price was only fixed for the Federal Republic, it was done on the basis of an offer which appeared to the Commission to represent the most favourable offers on the world market for all the Member States; it is this assessment which the applicant company is contesting. From this the Commission concludes that, in order to resolve the question of the individual nature of the decision, importers, exporters, customers or suppliers of sorghum or of processed sorghum-based products from the other Member States must all be taken equally into account.

However, as the applicant observes not unreasonably, this proves that in a system which aims at the progressive establishment of a common organization of the markets, the fixing of prices leads to a chain reaction. Its repercussions may even extend as far as the consumer but these are indirect effects which do not prevent the definition of a smaller group of persons to whom the decision is of individual concern. This would in fact consist of the ten or so undertakings, of which the applicant is one, which regularly import sorghum into the Federal Republic.

No doubt each of these two arguments is extreme. It was possible to fix the c.i.f. price in all Member States on the basis of the same offer; this was done at different rates which take into account the transport costs. In law and in fact they are therefore distinct decisions, even if they are interconnected. Since the contested measure only concerns the fixing of c.i.f. prices for the Federal Republic, it is solely from the point of view of that State that the individual nature of the decision should be assessed. On the other hand, since the fixing of the price affects the amount of the export refund as much as the import levy, it concerns for the same reason both exporters and importers of sorghum in the Federal Republic.

Your judgment in the Plaumann case has already laid down a guide line. Any 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. And you have refused to accept that a decision concerning customs duties on Clementines was of individual concern to an importer of that fruit affected ‘by reason of a commercial activity which may at any time be practised by any person’.

This reasoning appears to me to dictate the solution in the present case, even if the number of importers concerned in the Federal Republic is smaller, since it is always a theoretical category the strength of which cannot be defined at the moment at which the decision of the Commission takes effect. In particular, it is impossible to uphold the applicant's claim that one who has applied for a licence on that day has distinguished himself from importers in general and that thereby the decision is of individual concern to him; in fact the decision applies both to actual and potential importers, if only in so far as the price fixed might deter them from applying for a licence. The same reasoning also applies to exporters.

Even if, as I propose, you should accept the Commission's submission that the three contested Decisions are of direct concern to the applicant company, they are not of individual concern to it and its application is consequently inadmissible. This result may appear severe but it follows from Article 173 of the Treaty which determined rather restrictively the conditions under which applications by individuals shall be admissible. Does it necessarily follow, as the applicant appeared to maintain, that such persons are deprived of all effective legal protection? It does not seem so; they may bring actions before the national courts or tribunals of their State, which under Article 177 may apply to you for a preliminary ruling which you give within a very short time and according to a procedure guaranteeing the rights of the parties.

If the system of legal protection has a flaw, it is perhaps to the extent that, as was recalled at the hearing by counsel for the applicant, the Plaumann judgment excludes all damages under the second paragraph of Article 215 of the Treaty arising from an administrative measure which has not been annulled. It is, therefore, unlikely that applications for the annulment of decisions of the same type as that before us today will be referred to you by the States to which they are addressed. On the other hand, it is not certain that an action before the national court or tribunal will always ensure that individuals will gain reparation for damage suffered as a result of such decisions, supposing them to be irregular. Must, then, the severity of the system be tempered by accepting that, as regards the involvement of the responsibility of the Community, a finding of the invalidity of a measure following a reference to the Court under Article 177 is equivalent to its annulment? Or should other yet more liberal solutions be accepted?

Whatever may be the answer to the question, which I raised only in order to answer the objections made by the applicant, I am of the opinion that:

accepting the objection raised by the Commission of the European Economic Community,

the application of Getreide-Import Gesellschaft should be dismissed as inadmissible;

—

the application of Getreide-Import Gesellschaft should be dismissed as inadmissible;

the costs of the action should be borne by that company.

*

(1) Translated from the French.