Judgment_paragraph 2. · Société Roquette Frères v Council of the European Communities (242/81)

2.The Council of the European Communities considers that the action is inadmissible inasmuch as it does not satisfy the terms of Article 173 of thej Treatyj and the applicant has no legitimate interest in taking proccedings.In the first place the Council considers that the contested measure is not of direct and individual concern to the applicant. In contrast to previous regulations allotting production quotas and imposing a production levy on isoglucose. Regulation No 1785/81 does not itself allocate the quotas in question but places the responsibility on the Member States for allocating quotas to the producers established in their territory and for that purpose gives them a “margin of discretion”.The Council states that in order to allow a new producer access to the market the Member States have pursuant to Article 23 of the regulation the power to reduce by not more than 12% the A und B quotas allotted to individual undertakings. In tne Council's opinion that power breaks the direct imk between the applicant and trie contested measure required by Article 173 of the Treaty for the admissibilité of an action for a declaration that a measure is noid It toliows according to the Council that the present action must be declared inadmissibleIn support of the case the Council puts forward the turning arguments.In contrast to the machinery provided for in Article of Regulation No 1293/79 which inserted new Article 9 (6) in Regulation No 1111/97 going the Council power in the event of a new producer appearing on the mane, to allot a new quota restricted to 5% of the existing quotas, Regulation No 1785/81 gives the competent authorities of the Member States the power to reduce the quotas which they already fixed for the existing undertakings. It follows that in contrast to the machinery provided for in Regulation No 1293/79 exercise of the power provided for in Article 25 of Regulation No 1785/81 may affect the quotas allotted to existing producers and that would be after consideration by the Member States of the situation on the market.Contrary to what the applicant appears to think, the power conferred bv that provision may be exercised at any time and the reason why the present situation, which appears identical to that in previous marketing years, will remain unchanged, is not that the provision has not yet been implemented. In that respect the Council stresses that the implementation measures necessary for the exercise of the power conferred by Article 25 (2) of Regulation No 1785/81 already exist in the form of Article 8 of Regulation No 3331/74 of the Council of 19 December 1974 on the allocation and alteration of the basic quotas for sugar (Official Journal 1974, L 359, p. 18). It states further that the Member States may until the 1985/86 marketing year inclusive still alter the quotas allocated to undertakings pursuant to Article 25 (2) and finally that the implementation measures adopted bv the Commission,^note to which the applicant refers in an endeavour to show that no use will be made of that power to alter the quotas allocated, do not concern the application of Article 25 (2) of Regulation No 1785/81 but transfers of quotas in the event of undenakings' merging or ceasing to trade.On that issue the Council therefore concludes that the devolution to the Member States of responsibility for fixing the production quotas for each undertaking and the power given to national authorities to exercise “considerable discretion” in the allocation of individual quotas do not allow traders to contend that the provisions of Regulation No 1785/81 are of direct and individual concern to them. The Council concludes that the action by Roquette is inadmissible.In the second place the Council seeks to show that Roquette has no real interest in bringing the present action for a declaration that the regulation is void.In the Council's view it is obvious that the applicant's aim in the present action is to escape the production levy to which it is subject. The Council observes that the applicant is not challenging the principle of the levy but its appropriation to the Community budget. The Council accordingly states that the applicant has no interest in the present action since on the assumption that the applicant's submission is well founded the result would be an amendment of the appropriation of the lew and not its abolition as a levy intended to limit the production of isoglucose. In addition, the Council emphasizes that even if the levy in question may be regarded as being of direct and individual concern to the applicant it is not possible to contend that us mere appropriation to the Communuv budget as part o! the Communitv's own resources can be of direct and individual concern to the applicant within the meaninp o! tne second paragraph of Article lele of the Treatv. That question of appropriation concerns all actual or poienna. produceri ot sucar and isoglucose and not a limned circie ol producers déterminée on te and tor allIn addition, the Council challenges tne applicants' statement to the effect thai the machinen established by Article 28 of Regulation No 1783/81, that is to say the full financing by the producers of the costs of exporting sugar surpluses, can function only if the levy in question is appropriated to the Community budget as pan of the Community's own resources.On that issue the Council emphasizes that the regulation in question nowhere provides that the levy is to be regarded as part of the Community's own resources. In the Council's view the objective of the regulation is not to adopt provisions of a financial nature but to set in motion an instrument of the common agricultural policy, namely machinery to restrict production. In that respect the Council recalls that in paragraph 26 of its judgment in Case 138/79 the Court expressly recognized the power to adopt such measures since the production of isoglucose contributed to the increase in sugar surpluses. In the Council's view such measures are not necessarily to be classified in the category of own resources in the same wav as value added tax or customs dunes. On the contrary, the Council understands the judgments of the Court in Cases 138/78 [1979] ECR 713 and 66/80 [1981] ECR 1191 as authorizing the legislature to classify such instruments of agricultural policy which provide the Communuv with revenue as “intervention measures” which may be brought into the category of “other revenue” referre to in the first sentence of Article 4 (1) of Council Decision 72/243 of 21 April 1972 (Official Journal. English Special Edition 1970 (I), p. 2241. In the Council's opinion it is therrtore a uuestior of acncuhural revenue other than that referred to in Article 211 of the Treats, which was not interded for such measures of agricultura regulations dot to guarantee to the Member States that actua reveue from a rrguu.anu luOMjniij. njtu:e could not Pe ir.uou-ceć m üvour ot tnr general budget of the Communities without first bening the narmal parliaments.In any event, the Council maintains that budgetary techniques other than those consisting of classifying the revenue in question as “own resources” may be used to achieve the result sought by the legislature, that is to say the nonparticipation of the Community in the costs of disposing of sugar surpluses and the assumption of responsibility for those costs by the producers. For that reason the Council contends that it is wrong to allege as does the applicant that the system outlined in Articles 28 and 29 of Regulation No 1785/81 can function only if the levy in question is regarded as own resources within the meaning of Decision 70/243 of 21 April 1970.In the Council's opinion it follows that that argument is in no way relevant to the present case which concerns the validity of Regulation No 1785/81 and that the applicant has not succeeded in showing either in fact or in law that it has a legitimate interest in bringing proceedings against that appropriation.The Council moreover states that the question of the appropriation of the proceeds of the levy in question is a general measure of public finance applying to all actual or potential producers of isoglucose and cannot be of direct and individual concern within the meaning of the second paragraph of Article 173- of the Treaty to any particular producer.