162/78 · GlobalLawDB

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In Case 162/781. HANS-OTTO WAGNER GMBH AGRARHANDEL KG, represented by Hans-Otto Wagner, Bad Homburg,2. SCHLÜTER. & MAACK GMBH & CO. KG, represented by Oskar M. Roehr, Constantin Schlüter and Oskar W. R. Roehr, of Hamburg, and by Modest and partners, Advocates at the Hamburg Bar, acting as Agents, with an address for service in Luxembourg at the office of J. Jansen-Housse, 23 Rue Aldringen,vCOMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Peter Gilsdorf, acting as Agent, with an address for service in Luxembourg at the office of its Legal Adviser, M. Cervino, Jean Monnet Building, Kirchberg,THE COURTcomposed of: H. Kutscher, President, A. O'Keeffe and A. Touffait (Presidents of Chambers), J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart and G. Bosco, Judges,Advocate General: J.-P. WarnerRegistrar: A. Van Houttegives the following

Judgment

Facts and Issues

The facts, the procedure and the arguments of the parties may be summarized as follows:

I —Facts and written procedure

1.Hans-Otto Wagner GmbH Agrarhandel KG (hereinafter referred to as ‘Wagner’) is the plaintiff in the action which is still pending before the Finanzgericht [Finance Court] Hamburg. The latter court made an order referring certain questions to the Court for a preliminary ruling which resulted in the judgment of the Court of 24 May 1978 in Case 108/77 (Wagner v Hauptzollamt Hamburg-Jonas [1978] ECR 1187).Schlüter & Maack GmbH & Co. KG (hereinafter referred to as ‘Schlüter’), the second applicant in this action, was, like Wagner, awarded a contract for the export of white sugar to non-member countries under the system introduced by Regulation (EEC) No 2101/75 of the Commission of 11 August 1975 on a standing invitation to tender in order to determine a levy and/or refund on exports of white sugar (Official Journal L 214, p. 5) and by the later Commission Regulation (EEC) No 1634/77 of 19 July 1977 on a standing invitation to tender in order to determine export refunds for white sugar (Official Journal L 181, p. 35).The refunds awarded to Schlüter were not paid in full by the Hauptzollamt [Principal Customs Office] Hamburg-Jonas, any more than those awarded to Wagner; on the contrary, they were reduced as a result of the application of the coefficient provided for by Article 4 (3) of Regulation (EEC) No 1380/75 of the Commission of 29 May 1975 laying down detailed rules for the application of monetary compensatory amounts (Official Journal L 139, p. 37). Schlüter therefore brought the matter before the Finanzgericht Hamburg on the ground that the Hauptzollamt Hamburg had still not dealt with the complaints which it had lodged with it.

2.It should be borne in mind that Article 4 (3) of Regulation No 1380/75 provides that:— (b) in trade with third countries the import charges and the export refunds and levies, fixed in units of account … shall be multiplied by a coefficient … derived from the percentage used to calculate the monetary compensatory amount and … fixed by the Commission at the same time as that amount’.— Article 5 (2) (d) of the above-mentioned Regulation No 2101/75 provides that export refunds shall be expressed in national currency in the tenders and Article 11 (2) (c) thereof that the statement of award shall also indicate the export refund to be granted in national currency. Article 9 (1) thereof provides that only the maximum export refund, which serves the purpose of limiting the number of tenderers to whom a contract shall be awarded, shall be expressed in units of account.— Tenders are valid only if the tenderers have lodged the deposit required for the invitation to tender (Article 3 (3) of Regulation (EEC) No 394/70 of the Commission of 2 March 1970 on detailed rules for granting export refunds on sugar (Official Journal L 50, p. 1).

3.The Court in its judgment of 24 May 1978 held that:‘Article 4 (3) of Regulation No 1380/75, read in conjunction with Regulation No 2101/75, must be interpreted as meaning that the export refund in the sugar sector, fixed in national currency for each exporter individually on the basis of a tender, is not to be multiplied by a monetary coefficient, fixed by the Commission, derived from the percentage used to calculate the monetary compensation’.

4.The Commission subsequently adopted the following regulations:— Regulation (EEC) No 1182/78 of 31 May 1978 supplementing Regulations (EEC) No 1634/77 (mentioned above) and (EEC) No 1790/77 on standing invitations to tender to determine export refunds on sugar (Official Journal L 145, p. 46), Article 1 whereof provides :‘The coefficient referred to in Article 4 (3) of Regulation (EEC) No 1380/75 shall apply equally to refunds awarded in national currency for the purposes of this invitation to tender’;that regulation, which entered into force on 1 June 1978, applies to refunds awarded under the regulations which it supplements with the exception of those for which offers were accepted after 24 May 1978 and before 1 June 1978.— Regulation (EEC) No 1392/78 of 23 June 1978 amending Regulation (EEC) No 1380/75 (Official Journal L 167, p. 53), which added the following paragraph (5) to Article 4 of that regulation:5. The coefficient referred to in paragraph (3) shall also be applied to refunds and levies, the amount of which has been set in a national currency in the statement of award following an invitation to tender’;that regulation applies, subject to the existing provisions in the sugar sector and to the provisions to be adopted before 1 August 1978, to operations for which the customs formalities have been completed on or after the date of entry into force of the regulation (24 June 1978).

5.Since the applicants consider that Regulations No 1182/78 and No 1392/78 in fact applied the monetary coefficient retroactively to the refunds which had been irrevocably awarded to them before those regulations were adopted, they decided to institute proceedings under the second paragraph of Article 173 of the Treaty.The application, dated 26 July 1978, was received at the Court Registry on 28 July 1978.On 31 July 1978 the Commission adopted the disputed Regulation No 1837/78, Article 1 whereof provides that Article 4 (5) of Regulation No 1380/75‘shall apply to operations for which completion of the customs formalities occurs:(a) for operations in the sugar sector, on or after 1 June 1978;(b) for operations in other sectors, on or after 24 June 1978;(c) before these dates in cases when its application will mean a reduction in the monetary compensatory amount levied or to be levied’.That regulation, which supplements Regulation No 1392/78 and repeals Regulation No 1182/78, entered into force on 1 August 1978.The applicants stated in a letter of 8 August 1978 that it was no longer necessary for the Court to give a decision on the various principal submissions in their application of 26 July 1978, which they amended having regard to the situation created by the adoption of Regulation No 1837/78.

6.The Commission by means of an application registered at the Court on 25 August 1978 raised a preliminary objection of inadmissibility in accordance with Article 91 of the Rules of Procedure of the Court of Justice of the European Communities.The applicants submitted their observations on that application on 22 September 1978.The Court by an order of 25 October 1978 reserved its decision on the defendant's preliminary objection of inadmissibility for the final judgment.The written procedure then took its normal course.Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry.

II —Conclusions of the parties

1.The applicants claim that the Court should:(1) Declare Article 1 of Regulation No 1837/78 invalid to the extent to which it provides that Article 4 (5) of Regulation No 1380/75 relating to the coefficient fixed in Article 4 (3) of Regulation No 1380/75, where it amounts to less than 1, shall apply to refunds, the amount of which has been set in a national currency in the statement of award following an invitation to tender before 1 August 1978;(2) in the alternative, declare Article 1 of Regulation No 1837/78 invalid to the extent to which it provides that Article 4 (5) of Regulation No 1380/75 relating to the coefficient fixed in Article 4 (3) of Regulation No 1380/75, where it amounts to less than 1, shall apply to refunds, the amount of which has been set in a national currency in the statement óf award following an invitation to tender before 24 June 1978;(3) in the further alternative, declare Article 1 of Regulation No 1837/78 invalid to the extent to which it provides that Article 4 (5) of Regulation No 1380/75 relating to the coefficient fixed in Article 4 (3) of Regulation No 1380/75, where it amounts to less than 1, shall apply, as far as the sugar sector is concerned, to refunds, the amount of which has been set in a national currency in the statement of award following an invitation to tender before 1 June 1978;(4) in the yet further alternative, declare Article 1 of Regulation No 1837/78 invalid to the extent to which iţ provides that Article 4 (5) of Regulation No 1380/75 relating to the coefficient fixed in Article 4 (3) of Regulation No 1380/75, where it amounts to less than 1, shall apply, as far as the sugar sector is concerned, to refunds, the amount of which has been set in a national currency in the statement of award following an invitation to tender before 1 June 1978, where the relevant customs formalities were completed before 24 June 1978;(5) order the defendant to pay the costs.

2.The Commission contends that the Court should:(1) dismiss the application as inadmissible;(2) in the alternative, dismiss the application as unfounded;(3) in the further alternative dismiss the claims made in paragraphs (1), (2) and (4) of the applicants' conclusions;(4) order the applicants to bear the costs jointly and severally — at least if its contentions set out at (1) and (2) above are upheld.

III —Submissions and arguments of the parties

A —Admissibility

1.The Commission submits in its plea that Regulation No 1837/78, which was drawn up in an abstract and general way and affects an unspecified number of traders, is of direct but not of individual concern to the applicants. The fact that the applicants belong to a group of exporters whose tenders were successful before a specified date does not mean that they were to that extent distinguished individually by the regulation itself, which does not distinguish between traders who participated in the invitations to tender, traders who were stated to be successful tenderers and traders who had already made arrangements for the purpose of their commercial operations.The view that the decision which is challenged must be of individual concern to the party affected has been endorsed by the case-law of the Court. Thus in Case 63/69 (Compagnie Française Commerciale et Financière SA v Commission of the European Communities [1970] ECR 205) and in Case 101/76 (Koninklijke Scholten Honig N.V. v Council and Commission of the European Communities [1977] ECR 797) it rejected the very argument used by the applicants. On the other hand, it was held in Case 100/74 (Société CAM. SA v Commission of the European Communities [1975] ECR 1393) that the person affected was individually concerned since the disputed provision applied only to the holders of licences in respect of which the refunds had been fixed in advance.

2.The applicants in their submissions on the plea of inadmissibility state that the fact that they were awarded refunds in national currency before the dates at issue in this case distinguishes them sufficiently as individuals for their application to be admissible under the second paragraph of Article 173 of the Treaty. To accept the defendant's view would be tantamount to allowing it to bar actions brought under that provision by deciding not to distinguish individually and specifically in a regulation the persons affected.The applicants stress that the Commission could not have been unaware of the fact that the subsequent reduction of refunds already awarded, should the exportation not have taken place before certain dates, only affects the interests and legal position of specific exporters. Those exporters were identifiable having regard not only to the factual circumstances but also to the measures adopted by the Community in implementation of the regulation on exports of white sugar (cf. Joined Cases 106 and 107/63, Alfred Töpfer and Getreide — Import Gesellschaft v Commission of the European Economic Community [1965] ECR 405; Joined Cases 41 to 44/70, NV International Fruit Company and Others v Commission of the European Communities [1971] ECR 411; Case 100/74 (cited above), and Case 112/77, August Töpfer & Co. GmbH v Commission of the European Communities [1978] 1019). The recitals in the preambles to the regulations at issue leave no room for doubt that the Commission had in mind a specific situation; in the light of specific criteria for differentiation its aim was to cover a certain number of traders identified by reason of their individual behaviour over a fixed period.The applicants take the view that regulations having genuine retroactive effect are partially transformed into ‘disguised’ individual decisions.The Commission in Regulation No 1837/78 only partially eliminated the retroactive effect of Regulation No 1182/78 by ceasing to adopt as the criterion the award, and adopting the completion of the customs export formalities instead; exporters who thus found that an obligation had been imposed upon them continued therefore to be individually concerned within the meaning of the second paragraph of Article 173 of the Treaty.

3.The Commission in its defence points out that the plaintiffs' explanation of the retroactivity of the disputed provisions is not in any way connected with the admissibility of the action but rather goes to the substance of the case.It sets against the applicants' view that the fact that a provision, although it is general and abstract, has retroactive effect is sufficient for it to qualify as a decision the notion expressed in Article 173 of the Treaty and in the case-law of the Court.

B —The economic context which has to be taken into consideration

1.The Commission expresses the opinion in its defence that to hold, as the Court did in Case 108/77, that a provision is not in breach of the principle of non-discrimination is by no means the same as asserting that it is economically justified but even admits of the conclusion that it leads to unacceptable economic consequences. The non-application of the coefficient to the refunds in question would cause considerable distortion of competition between exporters from countries with strong currencies and exporters from countries with weak currencies, as well as considerable deflection of trade and disruption of the system of invitations to tender.A comparison between the position of a German exporter of sugar and that of a French exporter, each of whom participates in the same invitation to tender, and — in circumstances where costs are the same — exports from his own country, shows that, if the coefficient is not applied, the former enjoys a cost advantage of more than 8 US dollars, which corresponds to an advantage of about 40 % in relation to the export price fixed for the French exporter (19.54 dollars).Consequently the French trader, in order to be able to participate in an invitation to tender, would have had to export through Germany in order to reap the benefit of the large amounts awarded for exports (high m.c.a. plus unreduced refund). Such deflections of trade would also have been made possible by the fact that export licences can be used throughout the Community; the export refunds fixed in those licences in national currency are converted into the currency in which they are paid on exportation by means of the representative (green) exchange rate.In these circumstances French tenderers find that they are in practice eliminated and in France surplus sugar is sold to the intervention agencies instead of being exported directly.The Commission emphasizes that the monetary coefficient has always been applied, except in Belgium, to refunds fixed by way of the tendering procedure. Wagner first had the idea in April 1976 of relying on a literal application of the provisions of Article 4 (3) of Regulation No 1380/75 whereas the coefficient had been applied in thousands of cases since March 1973. Following the judgment in Case 108/77 most of the other German exporters lodged claims and the repayment liabilities amount to about DM 20 million; if the instant case were to succeed it would be necessary to add DM 5.4 million to that amount.The profits made by German exporters from the non-application of the monetary coefficient are economically unjustified; moreover, they were not taken into account in their initial calculations since the German price for sugar exports without application of the coefficient was much lower than the world market price at the time. The results of the invitations to tender also confirm this as the tenders were at levels near to the maximum.

2.The plaintiffs in their reply deny that the present proceedings are concerned with the application of the monetary coefficient to refunds, the amount of which has been set in a national currency in the statement of award following an invitation to tender; they are only concerned with the question whether the Commission could act retroactively.They do not understand why the defendant did not prescribe the application of the coefficient to refunds at the latest when the Finanzgericht Hamburg made the order for reference in Case 108/77, if it feared that the system of invitations to tender would be disrupted.They submit that the argument relating to the degree of distortion of competition between exporters from countries with strong currencies and exporters from countries with weak currencies which has already been put forward in Case 108/77 was not upheld by the Court.Wagner was not the only firm which challenged the application of the said coefficient. As far back as the first invitations to tender the second applicant in the instant case and the Gebrüder Metelmann firm lodged claims.The defendant omitted to state that the application of the coefficient was based on special provisions and had been expressly provided for in Article 8 (3) of Regulation (EEC) No 3062/74 of the Commission of 3 December 1974 on a standing invitation to tender to determine subsidies for imports of white and raw sugar (Official Journal L 324, p. 7).The applicants ask why the Commission has not given the reason for the practice in Belgium being different from that in the other Member States.They are unable to verify the accuracy of the figures for the financial losses suffered by the Commission as a result of the judgment in Case 108/77 but wonder whether the figure of DM 20 million also includes payments caused by the retroactivity introduced for the benefit of exporters in Member States with weak currencies. They raise the general question whether the Commission considers that it has to comply with the judgment in Case No 108/77 only up to a maximum amount of DM 20 million and that it can avoid expenditure above that figure by deciding to apply the coefficient retroactively. They are of the opinion that by mentioning the advantages which have accrued to German exporters the Commission has adopted arguments which are fiscal and not legal in character.

3.The Commission in its rejoinder argues that, if it had wished to avoid the consequences of the Court's argument it would have given the new regulation general retroactive effect and not limited the retroactivity merely to the ‘parties concerned’. It nevertheless has good grounds for limiting the financial damage borne by the Community tax payer to the extent to which that is permissible in law. The financial consequences are taken into account when the public interest is taken into consideration.The reason why the Commission did not decide to apply the coefficient earlier is that the interpretation which it advocates appeared to it to be reasonable, that this was also the interpretation advocated by the Member States and that before the judgment in Case 108/77 it was not aware of any criticisms by traders. It considers that Case 108/77 was intended to test the legal foundation of this well-known practice of the applicants.The reference to Regulation No 3062/74 is irrelevant. The exports referred to in that regulation did not give rise either to the granting or levying of m.c.a.s and under that system it was impossible to apply any monetary coefficient to the subsidies.With reference to the practice in Belgium the m.c.a.s there are so small that the actual effects of the application or non-application of the coefficient there have remained negligible.The estimated figure of DM 20 million only represents the additional payments which had to be made at a later date to comply with the judgment in Case 108/77. The retroactivity introduced for the benefit of exporters in countries with a weak currency only affected transactions already carried out and has not therefore led to additional payments.

C —The substance

1.The applicants in their amended application (see letter of 8 August 1978) develop the following submissions:Regulation No 1837/78, which was published and entered into force on 1 August 1978, has genuine retroactive effect in that it provides for the application of a monetary coefficient of less than 1 to transactions in respect of which refunds were awarded before that date.As far as concerns the date 24 June 1978 contained in Article 1 (b) of Regulation No 1837/78 the applicants rely on the fact that genuine retroactive effect is not permissible at least if it relates back to cases where the determinative material conditions were present before that date. They criticize the defendant for having taken as its basis the completion of customs formalities and not the invitation to tender which took place before that date.As far as concerns the sugar sector the actual retroactivity derives from Article 1 (a) of Regulation No 1837/78. In fact that provision excludes the less advantageous retroactive application of the monetary coefficient only with respect totransactions for which the customs formalities were completed before 1 June 1978. It was only after the applicants had brought their action that the defendant restricted and partially abolished the retroactive effect of the provision provided for in Regulation No 1182/78. Nevertheless, it remains impossible to understand why it persists in providing for the genuine retroactive application of monetary coefficients to certain transactions.The claim contained in paragraph (4) of the application is also based on the view that as far as the sugar sector is concerned it is unlawful to prescribe a stricter retroactivity than that provided for in the other sectors. This claim also takes into consideration the possibility that the Court will hold that the material conditions for entitlement to a refund are fulfilled only when the customs formalities have been completed.

2.The Commission replies that the choice of the date 24 June in Regulation No 1837/78 does not imply any retroactivity since an identical rule had already entered into force on 24 June by virtue of Regulation No 1392/78. The regulation which is the subject-matter of these proceedings did not introduce any new factor but restated the provision which was already in force in a provision of more general application. Similarly, the regulation in question does not apply with retroactive effect in the sugar sector since Regulation No 1182/78 provided that the coefficient should apply to that sector as from 1 June 1978. Consequently the claims in paragraphs (1), (2) and (4) of the application are unfounded.Only the claim in paragraph (3) can be taken into consideration. However, the Commission is of the opinion that there too there is no question of any genuine retroactivity. It is certainly possible to agree with the view that the definitive award of a refund as a result of an invitation to tender gives the successful tenderer a secure legal position. But entitlement to a refund is not affected by the application of the monetary coefficient. From both a legal and an economic standpoint the application of that coefficient is nothing more than the reduction of an m.c.a. which is too high. In fact the basic m.c.a. and the monetary coefficient together form the entity representing the m.c.a. properly socalled. The monetary coefficient is only a technical way of adjusting in trade with non-member countries the basic m.c.a. which is generally fixed at too high a level because it has been calculated on the basis of Community prices. Consequently the basic m.c.a. has to be reduced by an amount calculated by applying the coefficient determined by revaluation or devaluation to the levy or refund.The foregoing is also corroborated by the facts that the legal basis for fixing the coefficient is Article 6 of Regulation No 974/71 and not any provision of the law relating to refunds or levies, that the coefficient is fixed at the same time as the basic m.c.a. and varies with it and that the introduction of the coefficient and all the rules and regulations relating thereto are the responsibility of the Commission.It follows that monetary coefficients must in general be subject to the same legal rules as m.c.a.'s. In acordance with well-established case-law entitlement to the grant of the m.c.a. only arises when the customs formalities on export or import [as the case may be] have been completed. In the case in point, when the Commission adopted the provisions which are challenged it merely adopted new implementing provisions for the purpose of calculating monetary compensation. The persons affected cannot establish that they have any right to the continued existence of the implementing provisions previously in force. That is why the Commission was able to arrange, without, however, providing that the provisions in question should have retroactive effect, for the new rules to be applied to all transactions for which the customs formalities had not yet been completed before the publication of the regulations at issue.Having regard to the economic situation, there was no possibility that when the award was made the applicants could have anticipated that the monetary coefficient was not to be applied to them. An ‘expectation’ of that kind could only be founded on the wording of the provisions of Article 4 of Regulation No 1380/75.Even if it were possible to find in certain cases that there had been a breach of the principle that the legitimate expectation of the parties concerned was entitled to protection such a finding could not on that ground alone lead to a declaration that the disputed provisions are void. The applicants must prove the damage which they are supposed to have suffered in pursuance of that expectation: but such damage can only be claimed in an action under Articles 178 and 215 of the Treaty.The retroactive effect of the provision complained of was restricted to those transactions in respect of which the customs formalities had not yet been completed; consequently the only point at issue is interference with a ‘contingent right’ (the right to the grant of the refund subject to a condition precedent).Should it transpire that a specific trader had, contrary to the general forecasts, anticipated that the coefficient would not be applied and had therefore suffered damage he would have to be compensated in accordance with the principles relating to the law on expropriation. Such a solution represents an appropriate balancing of the public interest which must justify the retroactivity with the legitimate interests of the successful tenderer.Any expectation which the successful tenderer may have had that the coefficient would not apply must have been shaken by the adoption of Commission Regulation (EEC) No 243/78 of 1 February 1978 providing for the advance fixing of monetary compensatory amounts (Official Journal L 37, p. 5). Article 6 (2) of that regulation creates an indissoluble link between the advance fixing of the m.c.a. and the advance fixing of the levy or refund and makes it clear that the monetary coefficient — which forms part of the m.c.a. fixed in advance — must also apply to the amount determined by the invitation to tender. Consequently the ‘retroactive’ effect — within the meaning given to it by the applicants in their submissions — of the new rules must be regarded as lawful in so far as the period subsequent to the publication of that regulation is concerned, that is to say as from 7 February 1978.

3.The applicants state in their reply that the Commission cannot, on the one hand, assert that the claim contained in paragraph (4) of their application is clearly unfounded and, on the other hand, concede that only the claim under parargraph (3) can be considered. The claim under paragraph (4) is in fact subsidiary to that under paragraph (3).The Court has to ascertain to what extent the adoption of Regulation No 1182/78, which was illegal and subsequently repealed, authorized the Commission to apply further retroactive effect to refunds awarded before 1 August 1978. Furthermore, the conclusions drawn by the Commission must be reversed: paragraphs (1) and (2) of the application are clearly well-founded.Refunds granted before 1 June 1978 are to be regarded as fixed in advance before that date. It is not merely a question of interfering with a ‘contingent right’, as the Commission believes, but indeed of encroachment upon entrenched legal positions and of infringements of vested rights.It is irrelevant to say that the right to the grant of m.c.a.'s only arises on completion of the customs export formalities. The applicants are disputing the reduction of refunds fixed in advance, not the reduction of the m.c.a.The Commission was not authorized to interfere retroactively with entrenched legal positions and with vested rights by reducing refunds which had already been awarded and were therefore fixed in advance. The decided cases of the Court, based on the principles of legal certainty and the protection of legitimate expectation, have established that rules imposing charges retroactively are in principle illegal and may at best be justified in individual cases of an exceptional character.In this connexion the applicants have pointed out, stating their reasons, that they were unable to anticipate, at the time when the statements of award were published, the adoption at a later date of the retroactive provisions which are disputed. They were entitled to expect that the Commission, which had seen no reason for amending its regulations as from the date of the order of the Finanzgericht making a reference for a preliminary ruling until the date of the decision in Case 108/77, would abide by the Court's decision and not disregard it subsequently.As far as concerns Regulation No 243/78, it refers to levies or refunds fixed following an invitation to tender but is silent on the crucial question in Case 108/77 as to whether the monetary coefficient must also be applied to refunds fixed in national currency in an award following an invitation to tender. If not it was unnecessary for the Commission to adopt the disputed regulations.

4.The Commission in its rejoinder continues to believe that as from the date of publication of Regulation No 1182/78 the parties concerned could not have been unaware that the coefficient would in any case be applied as from 1 June 1978 to all exports in the sugar sector.The crux of this case is that the applicants do not dispute the reduction of the m.c.a. but are challenging the reduction of refunds fixed in advance. If the monetary coefficient is an integral part of the m.c.a. the alteration of the rules relating to the coefficient entails a reduction in the m.c.a. (in the case of countries with a strong currency), but not in the refund; any other effect is ruled out on grounds of elementary logic but also having regard to the mechanism of the economic rules. The judgment in Case 108/77 has not altered the position. It contains an interpretation of the law which is valid until new legislation is adopted. That legislation acknowledges the right to an m.c.a. which has not been reduced and has been acquired as a result of completion of the customs export formalities. Furthermore, the new system applies to transactions which have not yet been completed; it does not therefore have retroactive effect, nor does it adversely affect a legal position guaranteed by the legislature.The Commission makes the point that the Court in its judgment in Case 98/78, Firma A. Racke v Hauptzollamt Mainz [1979] ECR 69, and in its judgment in Case 99/78, Weingut Gustav Decker KG v Hauptzollamt Landau [1979] ECR 101, confirmed the possibility of the retroactive application of legal measures imposing charges. For such retroactivity to exist it is necessary that the objective to be attained should require it and that the legitimate expectation of the parties concerned should be properly protected. That was the position in the present case.The Commission again denies that the parties concerned could legitimately expect that the coefficient would not be applied; they must have known that the administration was applying the coefficient. Moreover, the tenders submitted in answer to the invitations to tender very definitely took into account the application of that coefficient, as is shown by the results of the invitations to tender prior to the judgment in Case 108/77.The applicants' views on what that judgment or even the adoption of Regulation No 1182/78 led them to expect are wholly irrelevant because only the expectation which became apparent when the tenders were submitted and the awards were made can be regarded as deserving of protection.If the Court were to hold that the disputed rules have retroactive effect the existence of Regulation No 243/78 would also be of considerable importance in this connexion. The exclusion by that regulation of an expectation deserving of protection in a different conception which was still tenable — until for example the date of its adoption (7 February 1978) — would have justified the application by the Commission of a corresponding retroactivity.

IV —Oral procedure

The applicants represented by Mr Landry, of the Hamburg Bar, and the Commission of the European Communities, represented by its Legal Adviser, Mr Gilsdorf, acting as Agent, presented oral argument at the hearing on 5 July 1979.The Advocate General delivered his opinion on 3 October 1979.

Decision

1By an application of 26 July 1978 received at the Court Registry on 28 July 1978 the applicants requested the Court to declare invalid Commission Regulation (EEC) No 1182/78 supplementing Regulations (EEC) No 1634/77 and (EEC) No 1790/77 on standing invitations to tender to determine export refunds on sugar (Official Journal 1978 L 145, p. 46) and Commission Regulation (EEC) No 1392/78 of 23 June 1978 amending Regulation (EEC) No 1380/75 laying down detailed rules for the application of monetary compensatory amounts (Official Journal 1978 L 167, p. 53) to the extent to which those regulations provide that the coefficient referred to in Article 4 (3) of Regulation No 1380/75, where it amounts to less than 1, shall apply to refunds, the amount of which has been set in a national currency in the statement of award following an invitation to tender, and in the alternative, to the extent to which those regulations provide that that coefficient, where it amounts to less than 1, shall apply to refunds, the amount of, which has been set in a national currency in the statement of award following an invitation to tender, in transactions for which the customs formalities were completed before 1 June 1978.

2Following the adoption of Commission Regulation (EEC) No 1837/78 of 31 July 1978 defining the scope of Article 4 (5) of Regulation (EEC) No 1380/75 laying down detailed rules for the application of monetary compensatory amounts (Official Journal 1978 L 210, p. 51) the applicants amended their conclusions in the manner described below.

3The applicants are sugar exporters who had been granted before 1 June 1978, following a partial invitation to tender, licences to export sugar in which the refunds had been set in a national currency and who consider that they have suffered damage as a result of the provisions of the disputed regulations.

4It should be recalled that the Finanzgericht [Finance Court] Hamburg had, by an order of 19 August 1977 pursuant to Article 177 of the EEC Treaty, referred to the Court, inter alia, a question on the interpretation of Article 4 (3) of Regulation (EEC) No 1380/75 of the Commission of 29 May 1975 laying down detailed rules for the application of monetary compensatory amounts (Official Journal L 139, p. 37), in conjunction with Regulation (EEC) No 2101/75 of the Commission of 11 August 1975 on a standing invitation to tender in order to determine a levy and/or refund on exports of white sugar (Official Journal L 214, p. 5). The question was worded as follows :‘Is Article 4 (3) of Regulation (EEC) No 1380/75 of the Commission read in conjunction with Regulation (EEC) No 2101/75 of the Commission to be interpreted as meaning that the export refund, which in the sugar sector is determined separately for each exporter in national currency on the basis of an invitation to tender, is to be multiplied by the monetary coefficient fixed by the Commission which is derived from the percentage used to calculate the monetary compensation?’

5The main action in which this question arose was concerned with the calculation of export refunds granted, following an invitation to tender, to the German firm Wagner, one of the applicants in these proceedings, in connexion with the export by it to Bulgaria of 4000000 kilograms of undenatured white sugar. The customs office which was responsible had granted the plaintiff firm monetary compensation amounting to DM 10.90 per 100 kg. It also granted export refunds but reduced the amounts resulting from the rates of refund indicated in the export licences by applying the coefficient of 0.9 to those amounts.

6At that time Article 4 of Regulation No 1380/75 read as follows:1. A monetary compensatory amount shall be fixed for each product and for each Member State in respect of which the conditions for the application of monetary compensatory amounts are fulfilled.The monetary compensatory amount shall be calculated on the basis of the common price, reduced where appropriate in accordance with the provisions of the Act of Accession.2. The amount fixed in accordance with the preceding paragraph shall apply in trade between the Member States and in trade with third countries.3.However,(a) in trade with a new Member State the accession compensatory amounts and the fixed components, and(b) in trade with third countries the import charges and the export refunds and levies,fixed in units of account, applicable to the products referred to in paragraph. 1, shall be multiplied by a coefficient. This coefficient shall be derived from the percentage used to calculate the monetary compensatory amount and shall be fixed by the Commission at the same time as that amount.…4.Where the levy or refund is to be increased or reduced, as the case may be, by accession and monetary compensatory amounts and multiplied by a coefficient, the calculation shall be made as follows:(a) the levy or refund shall be reduced or increased, as the case may be, by the accession compensatory amount;(b) the resulting amount shall be multiplied by the coefficient; and(c) the amount obtained after multiplication shall, after conversion into national currency, be reduced or increased, as the case may be, by the monetary compensatory amount.’

7The Court for the reasons given in its judgment of 24 May 1978 in Case 108/77 (Hans-Otto Wagner GmbH Agrarhandel KG v Hauptzollamt Hamburg-Jonas [1978] ECR 1187) answered the question as follows:‘Article 4 (3) of Regulation No 1380/75, read in conjunction with Regulation No 210/75, must be interpreted as meaning that the export refund in the sugar sector, fixed in national currency for each exporter individually on the basis of a tender, is not to be multiplied by a monetary coefficient, fixed by the Commission, derived from the percentage used to calculate the monetary compensation’.

8Subsequent to the Court's judgment the Commission adopted the abovementioned Regulation No 1182/78 which provides that ‘The coefficient referred to in Article 4 (3) of Regulation (EEC) No 1380/75 shall apply equally to refunds awarded in national currency for the purposes of this invitation to tender’. Regulation No 1182/78 which entered into force on 1 June 1978 applies to refunds awarded under the regulations which it supplements with the exception of those for which offers were accepted after 24 May 1978 and before 1 June 1978. The Commission then adopted the above-mentioned Regulation No 1392/78 which provided for the addition to Article 4 of Regulation No 1380/75 of a paragraph (5) which states that: ‘The coefficient referred to in paragraph (3) shall also be applied to refunds and levies, the amount of which has been set in a national currency in the statement of award following an invitation to tender’. Regulation No 1392/78 applies to operations for which the customs formalities have been completed on or after the date of its entry into force (24 June 1978), subject to the existing provisions in the sugar sector and to the provisions to be adopted before 1 August 1978.

9Since the applicants are of the opinion that Regulations Nos 1182/78 and 1392/78 in fact applied the monetary coefficient retroactively to the refunds which had been definitively awarded to them before those regulations were adopted they have instituted these proceedings for annulment under the second paragraph of Article 173 of the EEC Treaty.

10The Commission adopted on 31 July 1978, that is to say three days after these proceedings were instituted, the above-mentioned Regulation No 1837/78, Article 1 whereof (as amended by Commission Regulation (EEC) No 1907/78 of 7 August 1978, Official Journal 1978 L 217, p. 13) provides that Article 4 (5) of Regulation No 1308/75 ‘shall apply to operations for which completion of the customs formalities occurs:(a) for operations in the sugar sector, on or after 1 June 1978;(b) for operations in other sectors, on or after 24 June 1978;(c) before these dates in cases where its application will be of advantage to the person concerned’.Regulation No 1837/78, which supplements Regulation No 1392/78 and repeals Regulation No 1182/78, entered into force on 1 August 1978.

11The applicants stated in a letter of 8 August 1978 that it was no longer necessary for the Court to give a decision on the various principal submissions in their application of 26 July 1978, which they amended having regard to the situation created by the adoption of Regulation No 1837/78. In their new conclusions they claim that the Court should:(1) principally declare Article 1 of Regulation No 1837/78 invalid to the extent to which it provides that Article 4 (5) of Regulation No 1380/75 relating to the coefficient fixed in Article 4 (3) of Regulation No 1380/75, where it amounts to less than 1, shall apply to refunds, the amount of which has been set in a national currency in the statement of award following an invitation to tender before 1 August 1978;(2) in the alternative, declare the said Article 1 invalid to the extent to which it provides that Article 4 (5) of Regulation No 1380/75 relating to the coefficient, where it amounts to less than 1, shall apply to refunds, the amount of which has been set in a national currency in the statement of award following an invitation to tender before 24 June 1978;(3) in the further alternative, declare the said Article 1 invalid to the extent to which it provides that the coefficient shall apply, as far as the sugar sector is concerned, to refunds, the amount of which has been set in a national currency in the statement of award following an invitation to tender before 1 June 1978;(4) in the yet further alternative, declare the said Article 1 invalid to the extent to which it provides that the coefficient shall apply, as far as the sugar sector is concerned, to refunds, the amount of which has been set in a national currency in the statement of award following an invitation to tender before 1 June 1978, where the relevant customs formalities were completed before 24 June 1978.

Admissibility

12The applicants consider that the conditions laid down by the second paragraph of Article 173 are present. They claim that the disputed regulation is of direct and individual concern to them and that the issue in this case is that refunds which they had been definitively awarded were subsequently reduced and not merely that monetary compensatory amounts were altered. Moreover, the fact that Regulation No 1837/78, like Regulations Nos 1182/78 and 1392/78, as far as the future is concerned, constitute general measures and that in consequence the Commission chose the legal form of a regulation does not prevent those regulations, to the extent to which they provide for the retroactive application of the monetary coefficient to refunds which have already been awarded, from being in the nature of decisions addressed to specified persons which may be challenged by those persons as provided for in the second paragraph of Article 173 of the Treaty. The three regulations contain provisions which have genuine retroactive effect. They are intended to govern a specific situation in that they apply to certain operations which had already been concluded when the regulations entered into force.

13The applicants take the view that, to the extent to which the regulations deal with refunds awarded before 1 June 1978, they are of concern to a small number of exporters who were definitively ascertained on the date mentioned. Since those exporters were awarded refunds in a national currency before 1 June 1978 they are differentiated from all other addressees of the general provision and may consequently be distinguished individually. The applicants belong to that category of exporters and the factors establishing that they are individually concerned are therefore present.

14Although the Commission has not opposed the amendment to the subjectmatter of the application it has disputed its admissibility. It takes the view that although the regulation which is challenged is of direct concern to the applicants it is not of individual concern to them. Regulation No 1837/78 in conjunction with Regulation No 1392/78 is drafted in an abstract and general way and applies to an indefinite number of traders, not to a welldefined group thereof. It contains an amendment to the provisions relating to the application of monetary compensatory amounts. From the very beginning that amendment applied in principle to all operations for which the customs formalities were completed on or after the date of entry into force of Regulation No 1392/78, that is to say 24 June 1978. Regulation No 1837/78 did not amend that principle in any way which could be relevant to the case in point. It stated that the relevant date for the completion of customs formalities for operations in the sugar sector was 1 June 1978, since in the case of that sector the new system had already been introduced on that date by Regulation No 1182/78.

15In the view of the Commission the reason for the applicants' conviction that they are individually concerned lies in the fact that they belong to a group of exporters who became successful tenderers before a specified date. However, that group of exporters forms only a part of the unspecified number of traders covered by Regulation No 1380/75, as amended by Regulation No 1392/78. The fact that the applicants belong, within the undefined group of persons affected, to a sub-group distinguished by a particular factual situation does not mean that they are to that extent distinguished individually by the regulation itself. The disputed regulation does not draw any distinction depending on whether the traders concerned participate in invitations to tender or have been stated to be successful tenderers or have already made arrangements for the purpose of their commercial operations; it applies the same treatment to all those who have engaged in operations for which the formalities have not yet been completed. If the applicants' argument were correct the result would be that it would be possible, with reference to suitable facts, to form a number of sub-groups distinguished by individual features within the unspecified number of persons affected. Such a view would make the conditions laid down by the second paragraph of Article 173 of the Treaty, which requires that the decision which a person challenges must be of individual concern to him, to a great extent ineffective.

16Article 173 of the EEC Treaty entitles a private individual to challenge a decision addressed to him or a decision which, although adopted in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former. The specific purpose of that provision is to prevent the Community institutions from being able to bar proceedings instituted by an individual against a decision of direct and individual concern to him by simply choosing the form of a regulation.

17In order to determine whether the application is admissible it is necessary to examine whether the measures under attack are regulations or decisions within the meaning of Article 173 of the Treaty. Under the second paragraph of Article 189 the test for distinguishing between a regulation and a decision is to ascertain whether the measure in question has general application or not.

18It is common ground that the Commission has fixed, as from 1 March 1973, uniform basic monetary compensatory amounts calculated with reference to Community guaranteed prices. Consequently the amounts fixed in this way take account, as far as exports to non-member countries are concerned, not only of the price of the products concerned on the world market but also of the difference between that price and the Community guaranteed price which is compensated for by the export refunds. The effect of applying the coefficient to the refund is to fix a monetary compensatory amount which is calculated on the basis of the world market price.

19As emerged in Case 108/77, offers submitted by tenderers in answer to an invitation to tender are expressed in national currency in accordance with Article 5 (2) of Regulation No 2101/75, but at the level of the Commission all calculations are effected in units of account. The tenders submitted are converted, in order to make them comparable, into units of account by applying the ‘green’ rates. Awards are made only after taking into account the maximum amount fixed in units of account and by comparison therewith. The result of making awards with reference to the maximum amount fixed in units of account is that the refunds awarded, expressed in national currency by applying the ‘green’ rates, already reflect the impact of the revaluation or devaluation of the currency in question which the monetary compensatory amounts are intended to offset. Thus the effect of levying or granting the whole of the monetary compensatory amount fixed for intra-Community trade would be to double the incidence of monetary compensation on that part of the Community guarantee price represented by the export refund. The application of the coefficient at the same time as the monetary compensatory amount is granted or levied makes it possible to avoid that double incidence.

20In pursuance of the above-mentioned principles the Commission considered it necessary to adopt the regulations which are criticized in this case.

21Those regulations do not in fact reduce the refunds awarded but, by applying the coefficient to the refunds, merely adjust the monetary compensatory amount by reducing it in the case of revalued currencies and by increasing it in the case of devalued currencies. The application of the coefficient is only a technical way of adjusting, in trade with non-member countries, the basic monetary compensatory amount which is fixed at a uniform level calculated on the basis of Community prices. The basic monetary compensatory amount has therefore to be reduced by an amount calculated by applying to the levy or refund the coefficient determined by the revaluation or devaluation, so that the reduction of the refund itself is not affected.

22The system of applying the coefficient to refunds applies to all successful tenderers, whatever the date of the award, provided that exportation took place after 1 June 1978. The regulations in question are legislative measures. It is therefore impossible to agree with the view that they are of individual concern to the applicants within the meaning of the second paragraph of Article 173 of the Treaty and the application must therefore be dismissed as inadmissible.

Costs

23Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

24The applicants have failed in their submissions.

Operative part

On those grounds,THE COURThereby:

1.Dismisses the application as inadmissible;

2.Orders the applicants to pay the costs.

Delivered in open court in Luxembourg on 20 November 1979.