SA Piraiki-Patraiki and others v Commission of the European Communities (11/82)

3.1.The objection of inadmissibility

In its notice of objection the Commission alleges that the application is inadmissible.Article 173 of the EEC Treaty permits the Council, the Commission and the Member States to challenge the validity of acts of the Council and of the Commission before the Court, but it only allows private persons to challenge decisions addressed to them. A private person may however institute proceedings 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 him. The applicants must therefore prove on the one hand that the decision in question, which is addressed to two Member States, concerns them directly, and on the other hand that it concerns them individually; those two conditions must be considered cumulative, and must both be fulfilled before the application can be considered admissible. Here, on the contrary, the Commission argues that the decision in question is of a general economic nature and does not concern the applicants directly or individually.Article 130 of the Act of Accession of Greece provides that during the transitional period ‘if difficulties arise which are serious and liable to persist in any sector of the economy or which could bring about serious deterioration in the economic situation of a given area’ either Greece or another Member State may apply for authorization to take protective measures ‘in order to rectify the situation and adjust the sector concerned to the economy of the common market’. That provision repeats in their entirety Article 226 of the EEC Treaty and Article 135 of the 1972 act concerning the accession of the United Kingdom of Great Britain and Northern Ireland. According to the Commission those protective measures, essentially protectionist tariff and quota measures, are by their nature and their method of adoption general measures, taken in objective and strictly defined circumstances, which are intended to rectify situations endangering general interests of a regional, national or Community nature. They thus go beyond the interests of the undertakings considered individually, since they cover whole sectors of the economy, whatever the nature or the number of natural or legal persons involved in the manufacture and marketing of the products of the sector in question. In these proceedings the decision in question concerns not only Greek cotton manufacturers such as the applicants but also Greek exporters who are not themselves manufacturers, and French importers and retailers. The fact that it is theoretically possible to identify the persons concerned by the decision does not in itself affect the general nature of the measure, especially since the Commission neither had nor needed to obtain information in that regard.With regard to the question of a direct interest in taking action, the Commission considers that such an interest exists in cases where a private person is concerned by a Community decision and no national measure is interposed between him and that act. In this case, however, the contested decision necessitated national implementing measures from which in turn flowed direct consequences for private persons. All the Commission did was authorize a Member State to take measures limiting imports of certain products in a defined sector of the economy; the decision itself merely establishes a scheme which France is authorized to put into force, remaining free to do so or not, to apply higher import quotas, or to apply quotas for a shorter period. Nor was it a decision taken in order to ratify measures already adopted or provide a legal basis for choices already implemented at the national level, as in the cases provided for in the second paragraph of Article 115 of the EEC Treaty. Finally, the fact that the decision in question was notified to the Greek Government and not to undertakings in the Greek cotton industry is further proof that the matter involves relationships and interests which concern solely the Community and certain Member States.With regard to the question of individual concern, the Commission takes the view that it is not sufficient that the persons to whom a decision is addressed should be identifiable in the sense that they can actually be individually distinguished. In this case the action would be admissible if the applicants' activities, market situation and position with regard to the applicable regulations made it possible to identify them individually to a sufficient degree in a manner analogous to that of the person to whom the measure is formally addressed. Those conditions are not met. For that purpose, it is not possible to rely, as the applicants do, on the existence of contracts for exports to France concluded before the date of adoption of the decision for quantities in excess of those permitted by the decision, since the existence of such contracts is not established by the documents in the case. If such contracts existed they would have been subject to a force majeure clause, triggered in this case by the adoption of the protective measures; they would in any event be contracts governed by private law of whose existence the Commission could not be aware. In reality, the protective measures authorized by the decision in question are not addressed to the applicants individually, but affect the interests of categories of traders considered abstractly and distinguished from others only by their activity in the market for the products in question.In their observations on the Commission's pleadings on the procedural issue the applicants first point out that the Court has consistently held that both the wording and the grammatical sense of the second paragraph of Article 173 of the EEC Treaty justify the widest possible interpretation, as is confirmed by comparison of that provision with Article 175 of the EEC Treaty concerning the action for failure to act.With regard to the nature and scope of the decision in question, the applicants, while they accept that protective measures should be general in their scope and concern whole sectors of the economy, challenge the assertion that that is the case here; that issue can only be resolved by consideration in their context of the issue of admissibility and of the substance of the case. They argue that the protective measures in question are not directed towards a true ‘sector of the economy’; their main object is only the regulation of the activity of Greek producers and exporters to France of cotton yarn, and their effects are not only limited as to the number of traders concerned but also restricted in terms of the product, in time and in space. In that sense these are not measures with a general and objective economic scope but specific and subjective measures. In those circumstances the Commission can not be heard to assert that it did not know which individual undertakings were affected by its decision and that it should not be obliged to obtain information in that regard, since a measure such as that in question cannot be adopted without consideration of the interests of the Greek traders concerned. Finally, the applicants rely in particular on the judgments of the Court of 1 July 1965 in Joined Cases 106 and 107/63, Toepfer, [1965] ECR 405, 23 November 1971 in Case 62/70, Bock v Commission, [1971] ECR 897, 18 November 1975 in Case 100/74, CAM v Commission, [1975] ECR 1393, and 6 March 1979 in Case 92/78, Simmenthalw Commission, [1979] ECR 777, in which the Court held to be admissible actions brought by individuals against measures considered to have a general economic scope.With regard to the issue of direct concern, the Greek undertakings challenge the assertion that the decision in question granted a discretionary power to the French Government and that its implementation required national measures. In this case the national measure putting into effect the decision of the Commission was nothing more than a measure of formal implementation, whereas the decision in question was adopted in reply to persistent representations on the part of the French Government, following the failure of proposals made to Greece for voluntary limitations on exports of cotton yarn to France, and the adoption by France itself of a system of licences for such imports. To assert, in those circumstances, that the decision in question left France the discretion to decide whether or not to apply the protective measures betrays excessive formalism. Furthermore, in circumstances where the desire of the national authority to apply the measures authorized is not in doubt, the Court has held that there can be no question of discretionary power.The applicants consider that in taking such an approach to the notion of ‘direct concern’, which places the measure in question in its true political, economic and legal context, it cannot be denied that the contested decision directly affected their legal position. That is shown by the fact that the decision was raised against them as a legal justification for the refusal of their French contracting partners to perform the sales contracts concluded before the entry into force of the contested measure.With regard to the issue of individual interest, the applicants consider that they are individually identifiable as the persons to whom the decision in question is really addressed. Although the decision was notified only to the French Republic and to the Hellenic Republic, its sole objective was to restrict the activities of the Greek undertakings manufacturing the product in question and exporting it to France, since the measure implemented was intended to limit a specific economic activity, that of the applicants. They are the principal Greek producers and exporters to France of cotton yarn, and belong to a group of traders who are individually identifiable on the basis of certain longstanding characteristics, that is, a degree of industrial and commercial organization well known in the business circles concerned. They were moreover identifiable in so far as they had concluded, in the course of their legitimate business and before the adoption of the decision in question, a series of sales contracts in France, deliveries under which could not be made.According to the applicants, the fact, on which the Commission seeks to rely, that they are not the only persons concerned by the decision in question has no relevance to the admissibility of the action. The Court has held that in authorizing a person to challenge a measure which is not formally addressed to him, the second paragraph of Article 173 of the EEC Treaty does not require that that person or the limited group of which he is a member should be the sole trader affected by the measure; it is sufficient that he should be one of the persons principally and primarily affected by the measure in question, which is precisely the case here.At the hearing on 21 September 1982 the French Government, which had not been able to present argument during the written procedure, stated first that it supported the conclusions of the Commission not only on the substance of the case but also on the issue of admissibility. In that regard in particular it presented detailed argument defending the thesis that the applicants are not individually concerned by the decision in question and that the application is therefore inadmissible. That follows, it argues, from the ‘regulatory’ nature of the contested measure, the fact that the applicants are affected by the decision in question only as members of an abstractly envisaged category of traders, the fact that it is not possible to identify them individually to a sufficient degree, and finally the fact that the circumstances in this case are in no way comparable with those which gave rise to the judgments of the Court relied on as precedents by the applicants. In other respects it endorsed the arguments presented by the representatives of the Commission, stating that in French law a ‘notice to importers’ such as that issued in this case does not merely provide information but also has a normative character. There can therefore be no question of the decision at issue having any direct effect with effect to the applicants, since a national implementing measure was necessary.