Alexander Moksel Import-Export GmbH & Co. Handels-KG v Commission of the European Communities (45/81)

I —Facts and procedure

The applicant, Moksel, is one of the largest exporters of beef and veal in the Community. Since it generally makes large export contracts providing for a time for delivery of three to four months on average, it regularly avails itself of the possibility which is open to it of having export refunds fixed in advance.For this reason, on Friday 12 December 1980, it submitted to the Bundesanstalt für landwirtschaftliche Marktordnung [Federal Office for the Organization of Agricultural Markets] (hereinafter referred to as the “Federal Office”), the federal intervention agency, several applications for advance fixing of export refunds on beef and veal. For such applications to be considered, the person concerned must also give security in favour of the Federal Office not later than 1 p.m. on the day on which the application for a certificate is lodged.Since there was a delay on the pan of the bank which was to notify the Federal Office of the applicant's security, the security did not reach the Federal Office until after 1 p.m. on Friday 12 December 1980. Although Article 5 (2) of Regulation No 193/75, replaced by Regulation No 3183/80 (Official Journal L 338, p. 1) authorized the Federal Office to refuse the application, the Federal Office did not do so but was obliged to consider the application as having been lodged on the first working day following the day on which it was received, in this case on Monday 15 December 1980.In these circumstances, the export licences corresponding to applications for advance fixing certificates lodged on 15 December 1980 could not be issued until 20 December 1980, that is to say, the fifth working day following the day on which the applications were lodged, in accordance with Article 2 (1) of Commission Regulation No 2378/80 of 4 September 1980 (Official Journal L 241, p. 19) provided that no “special measures” had been taken during that period.Such measures were however taken on 19 December 1980 by Commission Regulation No 3318/80 of 19 December 1980 (Official Journal L 345, p. 20) temporarily suspending the advance fixing of expon refunds for beef meat products, and the Federal Office refused Moksel's application in a decision of 23 December 1980.As the reason for its decision, the Federal Office referred to the measures taken by the Commission in Regulation No 3318/80 and also contained in the telex message which was sent to it by the Commission on 19 December 1980 to inform it of the adoption of the regulation and which states in the paragraph marked “N.B.” that “These applications (which would have been accepted on 20 December or later) must be refused and the securities lodged must be released”.These are the two acts of the Commission which the applicant asks the Coun to annul, on the grounds first that the telex message constitutes “a decision” inasmuch as it is capable of producing legal effects and is of direct and individual concern to the applicant, and secondly that, even if the only purpose' of the telex message was to interpret Regulation No 3318/80, the action is nevertheless admissible because the regulation in fact constitutes “a decision” of direct and individual concern to the applicant.By an application lodged at the Coun Registry on 23 February 1981, the applicant brought this action under Article 173 of the EEC Treaty seeking a declaration that either Regulation No 3318/80 or the telex message which the Commission sent to the Federal Office, or both, are void.By a telex message dated 26 June 1981, received at the Coun Registry on the same day, TIAC applied to be allowed to intervene in the case in support of the applicant. Such intervention was allowed by order of 30 September 1981.On hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided, by order of 30 September 1981, to assign the case to the Third Chamber, pursuant to Article 95 (1) and (2) of the Rules of Procedure, and to open the oral procedure on the objection of inadmissibility without any preparatory inquiry. At the same time, it invited the Commission to make written observations before 5 November 1981 on the following question:How manv traders were covered by Regulation'No 3318/80?(a) How many had lodged their application during the period of suspension?(b) How many had lodged their application before the period of suspension?Were these traders identifiable?