SA Roquette Frères v Council of the European Communities (179/80)

I —Facts and procedure

II —Conclusion of the parties

In its application instituting the proceedings, the applicant claims that the Court should:— Declare invalid in relation to the applicant the provision of Regulation No 1592/80 of 24 June 1980 which extends the validity of the system established by Regulation No 1111/77, as amended, and by Annex II thereto, and provides for the application from 1 July 1980 to 30 June 1981 of the isoglucose production quota fixed for the period between 1 July 1979 and 30 June 1980.By a document headed: “Addendum to the application instituting the proceedings”, lodged at the Court Registry on 7 November 1980, the applicant claims that the Council should be ordered to pay the costs.In its defence, the Council contends that the Court should dismiss as unfounded the application for a declaration that Regulation No 1592/80 is void and that the applicant sould be ordered to pay the costs.The Council considers that since the applicant's claim for costs, which is out of time, falls in particular within the scope of Article 173 of the EEC Treaty and of Article 42 of the Rules of Procedure it is inadmissible.In its reply, the applicant does not put forward any formal conclusions but challenges the Council's objection regarding the admissibility of the applicant's claim for costs. Article 173 of the EEC Treaty prescribes a period of two months within which an application may be made for a declaration that an unlawful measure is void but does not apply to a claim for costs. Moreover, Article 42 of the Rules of Procedure concerns only the raising of a fresh issue and a claim for costs is not a fresh issue.In its rejoinder, the Council contends that the Court should dismiss the application for a declaration of nullity as an abuse of process, without there being any need to examine the ground of complaint relied upon by the applicant. That fresh issue is based on Article 42 (2) of the Rules of Procedure. In the alternative, the Council argues that the application should be dismissed as unfounded. In any event, the Council contends that the Court should order the applicant to pay the costs.

III —Submissions and arguments of the parties

In its application, the applicant claims that the Council again failed to await the European Parliament's opinion before adopting Regulation No 1592/80. In the preamble to that regulation, the Council refers to “the opinion of the European Parliament” and the text contains a reference to the following footnote: Official Jounral C 97 of 21 April 1980, p. 33. It is however apparent from that Official Journal that the reference is to the first part of a lengthy resolution adopted by the Parliament on 26 March 1980 embodying its opinion on:I — The communication from the Commission of the European Communities to the Council concerning changes in the common agricultural policy to help balance the markets and streamline expenditureII — The proposals from the Commission of the European Communities to the Council on the fixing of prices of certain agricultural products and on certain related measureson monetary compensatory amounts.”It can therefore be shown that the Parliament was not consulted on the text of Regulation No 1592/80 and that the reference concerning the Parliament's opinion, incorporated by the Council in the preamble to the regulation, reflects a desire to comply with an essential procedural requirement although it lacks any real content.In those circumstances, the requirement laid down by Article 43 (2) of the EEC Treaty cannot be regarded as having been satisfied.With regard to the substance, the applicant merely restates the arguments which it put forward in Case 138/79.In its defence, the Council points out that the proposals designed to rationalize the common agricultural policy (Official Jounal C 60 of 10 March 1980) include under Point III the “Proposal for a Council regulation on the common organization of the markets in sugar and isoglucose”.That proposal was designed, in the first place, to replace the existing basic regulation on sugar, namely Regulation (EEC) No 3330/74, in view of the fact that the system of quotas provided for therein was to expire on 1 July 1980.In its proposal, the Commission provided, in the case of sugar and isoglucose, for a system of quotas for a period of five years involving a number of important changes in the arrangements, including a reduction in sugar and isoglucose quotas. In other respects, the proposed system was more or less identical to that already applied in the sugar and isoglucose sector.The European Parliament gave its opinion on that proposal, which was published in Official Journal C 97 of 21 April 1980 at p. 33. In that very detailed opinion on the sugar policy to be pursued by the Community in the future, the Parliament expressed its disapproval of any reduction in the quotas (Point 49) and therefore requested the Commission to maintain the current regulations (Point 50); finally, it asked for the isoglucose arrangements to be brought into line with the sugar regulations (Point 53).Thus the Parliament gave a very detailed opinion.The Council maintains that if, by its submission that the regulation was tainted by a procedural defect the applicant meant that the text finally adopted bore no resemblance to the Commission's proposal, which would indicate that no genuine consultation had taken place, then that argument too is incorrect.After consulting the European Parliament, the Council considered that it was unable to take an immediate decision regarding a reduction in quotas and preferred to extend the validity of the system in force (Regulation No 3330/74 for sugar and Regulation No 1111/77, as amended in 1979, for isoglucose) for a further marketing year, pending a decision on the system to be applied in future (see the third and fourth recitals in the preamble to Regulation No 1592/80).It is clear therefore that the Parliament was consulted on the basis of a Commission proposal concerning the sugar and isoglucose sector, that the proposal which was applicable for five years provided for a reduction in quotas, that the Parliament expressed its disapproval of such a reduction and that not wishing to take an immediate decision to reduce quotas the Council preferred to extend the validity of the existing system for a further year, which it did by adopting a proposal amended by the Commission in accordance with Article 149 of the EEC Treaty. That proposal became Regulation No 1592/80.Accordingly, the Council adopted a system which was similar to that desired by the Parliament and which had not undergone any substantive amendment in relation to the Parliament's opinion; however, it adopted it for a shorter period pending the adoption of a definitive position.Therefore the submission that the regulation was vitiated by a a procedural defect should in any event be rejected.The Council rejects all the substantive arguments for the same reasons as those which it gave in Case 138/79.In its reply, the applicant raises a fresh issue based on a new factor, namely the judgments of the Court of 29 October 1980 declaring Regulation No 1293/70 void.The application contends that Regulation No 1592/80, in so far as it merely extends the validity of Regulation No 1293/79, is void for the same reasons as the latter. Regulation No 1592/80 is inevitably, not to say automatically, unlawful in consequence of the Court's finding in its abovementioned judgment that Regulation No 1293/79 was unlawful.With regard to the admissibility of that submission, the applicant maintains that the conditions laid down by Article 42 (2) of the Rules of Procedure are fulfilled.As regards the Parliament's opinion, the applicant emphasizes that the Parliament was never consulted on the proposal to extend the validity of the existing system. That is apparent from the texts published in the Official Journal of 21 April 1980 as well as from the Council's reply to the question put to it by the Court at the sitting in Case 138/79.In conclusion, the applicant states that it no longer relies on the substantive arguments which it previously put forward, at least in so far as the Court has already rejected them in its judgments of 29 October 1980.In its rejoinder, the Council argues that as a result of the publication of Regulations Nos 378 and 388/81, both of which were Commission proposals which the Council adopted without amendment after the Parliament had given its opinion on 9 February 1981, it is pointless for the applicant to proceed with its application for a declaration of nullity.Moreover, the Council considers that there are may points of similarity between this case and Case, 243/78 Simmenthal v Commission [1980] ECR 593 (see paragraph 9 of the decision), with the result that the prosecution by the applicant of its action may be regarded as an abuse of process (idem, paragraph 11 of the decision). The Court should therefore dismiss the application on that ground without even considering the applicant's complaints.The fresh issue thus raised is based on Article 42 (2) of the Rules of Procedure. For the rest, the Council adduces further arguments in support of its contention that the application should be dismissed on procedural as well as substantive grounds.In an additional statement, the applicant contends in particular that the actual situation obtaining in this case is quite different from that which arose in the Simmenthal case. At worst, the Court may decide that it is unnecessary to give a decision on the point at issue. Consequently, the applicant sees no reasons to withdraw its application. However, it leaves to the Court the question whether or not, in the circumstances, it is necessary to give a decision on the point at issue.At all events, the applicant claims that the Council should be ordered to pay the costs.

IV —Oral procedure

Roquette Frères, represented by Mr Veroone, and the Council, represented by Mr Vignes, attended the sitting on 8 July 1981. The Advocate General delivered his opinion at the end of the sitting.