JUDGMENT OF THE COURT 26 April 1988* 1. Asteris AE, a public limited company incorporated under the law of Greece whose head office is in Athens,

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1 JUDGMENT OF JOINED CASES 97, 193, 99 AND 215/86 JUDGMENT OF THE COURT 26 April 1988* In Joined Cases 97, 193, 99 and 215/86 Joined Cases 97 and 193/86 1. Asteris AE, a public limited company incorporated under the law of Greece whose head office is in Athens, 2. Strymon Ellas-Alfi Bitzidi AE, a public limited company incorporated under the law of Greece whose head office is in Serres, 3. Adelfi Chatziathanassiadi ABE, a public limited company incorporated under the law of Greece whose head office is in Serres, 4. Amvrossia Konservopiia Verias AEBE, a public limited company incorporated under the law of Greece whose head office is in Veria, 5. Elliniki Viomichania Idon Diatrofis AE, a public limited company incorporated under the law of Greece whose head office is in Larissa, 6. Eteria Emboriou kai Antiprossopion Issagogiki-Exagogiki Darva EPE, a private limited company incorporated under the law of Greece whose head office is in Aiyio, 7. Synetairistiki Eteria Viomichanikis Anaptixeos Thrakis (Sevath) AEB, a public limited company incorporated under the law of Greece whose head office is in Xanthi, 8. Anonymas Viomichaniki Eteria Konservon D. Nomikos, a public limited company incorporated under the law of Greece whose head office is in Athens, 9. Intra Anonymos Viomichaniki kai Emberiki Eteria, a public limited company incorporated under the law of Greece whose head office is in Athens, 10. Viomichania Trofimon AE, a public limited company incorporated under the law of Greece whose head office is in Kalamata, * Language of the Case: Greek. 2200

2 ASTERIS v COMMISSION 11. Alfi Kanakari AE kai Exagogiki Etena Georgikon Proïondon, a public limited company incorporated under the law of Greece whose head office is in Athens, 12. Sinetairistika Ergostassia Konservopiias Voriou Ellados (Sekove) AE, a public limited company incorporated under the law of Greece whose head office is in Thessaloniki, 13. Omospondia Georgikon Synetairismon Thessalonikis, a co-operative society whose head office is in Thessaloniki, 14. Kyknos AEBE, a public limited company incorporated under the law of Greece whose head office is in Nafplion, 15. Zanae-Zymai Artopiias Nikoglou AE, a public limited company incorporated under the law of Greece whose head office is in Thessaloniki, represented by Ioannis E. Stamoulis, Christos D. Arvanitis and Nikolaos I. Tsiokas, of the Bar of Athens, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 34 bis, rue Philippe-II, applicants, Joined Cases 99 and 215/86 Greek Republic, represented by Yannos Kranidiotis, Special Secretary at the Ministry for Foreign Affairs, acting as Agent, assisted by Stelios Parrakis, Legal Adviser to the Ministry for Foreign Affairs, European Communities Department, with an address for service in Luxembourg at the Greek Embassy, applicant, v Commission of the European Communities, represented by its Legal Adviser Dimitrios Gouloussis, acting as Agent, with an address for service in Luxembourg at the office of G. Kremlis, a member of its Legal Department, Jean Monnet Building, Kirchberg, defendant, 2201

3 JUDGMENT OF JOINED CASES 97, 193, 99 AND 215/86 In Cases 97 and 99/86, APPLICATION for the annulment of Commission Regulation No 381/86 of 20 February 1986 on additional payment of production aid for certain sizes of packagings with tomato concentrates obtained from Greek tomatoes during the 1983/84 marketing year and of the Commission's refusal to comply with the judgments of the Court of 19 September 1985 (Case 192/83 Greek Republic v Commission [1985] ECR 2791, and Joined Cases 194 to 206/83 Asteris and Others v Commission [1985] ECR 2815); In Case 193/86, APPLICATION for the annulment of the statement of the Commission's position set out in a letter to the applicants on 11 June 1986 and its refusal, expressed in that document, to comply with the judgments of 19 September 1985; In Case 215/86, APPLICATION for the annulment of the statement of the Commission's position set out in its letter to the Hellenic Republic on 19 June 1986 and its refusal, expressed in that document, to comply with the judgments of 19 September 1985, THE COURT composed of: G. Bosco, President of Chamber, acting as President, J. C. Moitinho de Almeida, President of Chamber, T. Koopmans, U. Everling, Y. Galmot, C. Kakouris and F. Schockweiler, Judges, Advocate General: Sir Gordon Slynn Registrar: D. Louterman, Administrator having regard to the Report for the Hearing and further to the hearing on 11 November 1987, after hearing the Opinion of the Advocate General delivered at the sitting on 2 February 1988, gives the following 2202

4 ASTERIS v COMMISSION Judgment i By an application lodged at the Court Registry on 14 April 1986 (Case 97/86), the 15 companies named above brought an action under the second paragraph of Article 173 of the EEC Treaty for the annulment of Commission Regulation No 381/86 of 20 February 1986 on additional payment of production aid for certain sizes of packagings with tomato concentrates obtained from Greek tomatoes during the 1983/84 marketing year (Official Journal 1986, L 44, p. 10). 2 By an application lodged at the Court Registry on 29 July 1986 (Case 193/86), the 15 companies named above brought an action under the second paragraph of Article 173 of the EEC Treaty for the annulment of the Commission's refusal to comply with the judgments of 19 September 1985 (in Case 192/83, Hellenic Republic v Commission [1985] ECR 2791, and in Joined Cases 194 to 206/83 Asteris and Others v Commission [1985] ECR 2815) contained in a letter addressed to the companies on 11 July By an application lodged at the Court Registry on 21 April 1986 (Case 99/86), the Hellenic Republic brought an action under the first paragraph of Article 173 of the EEC Treaty for the annulment of Regulation No 381/86. 4 By an application lodged at the Court Registry on 6 August 1986 (Case 215/86), the Hellenic Republic brought an action under the first paragraph of Article 173 of the EEC Treaty for the annulment of the Commission's refusal to comply with the judgments of 19 September 1985 (cited above) contained in a letter addressed to the Hellenic Republic on 19 June s By an order dated 17 June 1987, the Court joined Cases 97, 193, 99 and 215/86 for the purposes of the oral procedure and the judgment. 2203

5 JUDGMENT OF JOINED CASES 97, 193, 99 AND 215/86 6 In an action brought by the Hellenic Republic, the Court, by judgment of 19 September 1985 (Case 192/83 cited above), annulled Commission Regulation No 1615/83 of 15 June 1983 fixing the coefficients to be applied to the production aid for tomato concentrates for the 1983/84 marketing year (Official Journal 1983 L 159, p. 48). The regulation was declared void to the extent to which the coefficients laid down by it resulted in inequality of treatment as between producers in the Hellenic Republic and those in the other Member States with respect to compensation for the extra costs incurred as a result of the use of packaging smaller than the standard packaging adopted by Commission Regulation No 1618/83 of 15 June 1983 fixing for the 1983/84 marketing year the minimum price to be paid to producers and the amount of production aid for certain products processed from fruit and vegetables (Official Journal 1983, L 159, p. 52). In that judgment, the Court also stated that it was the duty of the Commission, under Article 176 of the EEC Treaty, to fix new coefficients for Greece or to devise some other system of compensation taking account of the fact that the aid scheme differentiated between Greece and the other Member States.? In order to implement the judgment of 19 September 1985 (Case 192/83), the Commission adopted Regulation No 381/86, with which the present action is concerned. No regulation concerning additional aid was adopted for the marketing years before or after 1983/84. s Following the judgments of 19 September 1985 the Commission was called upon by the applicant companies and by the Hellenic Republic to fix additional aid for Greek undertakings for the 1981/82, 1982/83, 1984/85 and 1986/87 marketing years as well; in replies to the applicant companies dated 11 June 1986 and to the Hellenic Republic dated 19 June 1986 the Commission expressed the view that the only obligation imposed upon it by the judgment given in Case 192/83, annulling Regulation No 1615/83, was to adopt a new regulation for the 1983/84 marketing year. 9 Reference is made to the Report for the Hearing for a fuller account of the facts, the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court. 2204

6 The actions brought by the companies ASTERIS v COMMISSION 10 In Cases 97/86 and 193/86, the applicant companies seek the annulment of Regulation No 381/86 in so far as it fixes additional aid only for the 1983/84 marketing year and of the Commission's refusal, when called upon by the applicants to take action, to grant additional aid, in implementation of the judgment of 19 September 1984, also for the marketing years before and after the 1983/84 marketing year. ii As regards the application for the annulment of Regulation No 381/86, the Court has already held, and most recently in its judgment of 28 February 1987 (Case 26/86 Deutz und Geldermann [1987] ECR 941), that the second paragraph of Article 173 of the Treaty makes the admissibility of proceedings instituted by an individual for a declaration that a measure is void dependent upon fulfilment of the condition that the contested measure, although purporting to be a regulation, in fact constitutes a decision which is of direct and individual concern to him. The objective of that provision, as the Court emphasized, is in particular to prevent the Community institutions, merely by choosing the form of a regulation, from being able to exclude an application by an individual against a decision of direct and individual concern to him and thus to make clear that the choice of form may not alter the nature of a measure. i2 By virtue of the second paragraph of Article 189 of the Treaty, the test for distinguishing between a regulation and a decision is whether or not the measure in question has general application. It is therefore necessary to determine the nature of the contested measure and in particular its legal effects. B As the Court held in its judgment of 30 September 1982 (Case 242/81 Roquette Frères v Council [1982] ECR 3213, paragraph 7), a measure does not cease to be a regulation because it is possible to determine more or less exactly the number or even the identity of the persons to whom it applies at any given time as long as it is established that it applies to them by virtue of an objective legal or factual situation defined by the measure in question in relation to its purpose. 2205

7 JUDGMENT OF JOINED CASES 97, 193, 99 AND 215/86 M In order for a measure to be of individual concern to any person, it must affect his legal position because of a factual situation which differentiates him from all other persons and distinguishes him individually in the same way as a person to whom it is addressed (see in particular the judgment of 18 November 1975 in Case 100/74, CAMw Commission [1975] ECR 1393). is In these proceedings, Regulation No 381/86 concerns the applicant companies only in their objective capacity as producers of tomato concentrate established in Greece in the same way as it concerns any other producer of tomato concentrates in the same position. As far as they are concerned, therefore, the regulation is a measure of general application which applies to objectively determined situations and entails legal effects for a category of persons considered generally and in the abstract. i6 The application in Case 97/86 for the annulment of Regulation No 381/86 must therefore be dismissed as inadmissible. i7 As regards the application for the annulment of the Commission's alleged refusal fully to implement the judgment of 19 September 1985, it must be observed that individuals who have no standing to challenge the legality of a legislative measure likewise have no standing to bring an action for the annulment of such a measure or for a declaration that a Community institution has failed to act after being called upon to adopt such a measure. is The application in Case 193/86 for the annulment of the Commission's alleged refusal to implement the judgment of 19 September 1985 must therefore be dismissed as inadmissible. The actions brought by the Hellenic Republic i9 In Cases 99/86 and 215/86 the Hellenic Republic seeks the annulment of Regulation No 381/86 in so far as it fixes additional aid only for the 1983/84 marketing year and of the refusal by the Commission, after being called upon to act by the Hellenic Republic, fully to implement the judgment of 19 September 2206

8 ASTERIS v COMMISSION 1985 by rectifying, with respect also to the other marketing years, the error found by that judgment to have been committed. 20 In support of its applications, the Hellenic Republic claims that the Commission failed to fulfil the obligations incumbent upon it under Article 176 of the EEC Treaty, which provides that an institution whose act has been declared void or whose failure to act has been declared contrary to the Treaty is required to take the necessary measures to comply with the judgment of the Court of Justice. 2i As regards the application for the annulment of Regulation No 381/86, it must be borne in mind that that regulation provides for additional aid for the 1983/84 marketing year; that was the marketing year covered by Regulation No 1615/83, which was annulled by the judgment of 19 September 1985 in Case 192/83, cited above. 22 The Hellenic Republic does not deny that by adopting Regulation No 381/86 the Commission correctly implemented the judgment of 19 September 1985 with respect to the 1983/84 marketing year, the only year covered by Regulation No 1615/83. However, it criticizes the Commission for failing to take the necessary consequential measures with respect to the previous and subsequent marketing years, covered by regulations identical to the annulled regulation which were not challenged within the prescribed time-limits. 23 The Hellenic Republic does not therefore allege that Regulation No 381/86 is unlawful in any way but claims that the judgment of 19 September 1985 places the Commission under an obligation not merely to replace the annulled regulation but also to adopt other measures adjusting regulations the annulment of which was not sought. 24 Of the regulations which, according to the Hellenic Republic, the Commission was under an obligation to amend, some were adopted before the annulled regulation, namely Commission Regulations Nos. 1962/81 and 1602/82 fixing the coefficients to be applied to the production aid for tomato concentrates for the 1981/82 and 1982/83 marketing years, and the other was adopted subsequently, namely Commission Regulation No 1709/84 fixing those coefficients for the 2207

9 JUDGMENT OF JOINED CASES 97, 193, 99 AND 215/86 marketing years 1984/85 to 1986/87. Those regulations thus relate to situations different from those governed by the annulled regulation and, in criticizing the Commission for failing to amend or supplement them, the Hellenic Republic claims that it is incumbent upon the Commission to recast the annulled measure and to regulate the situation governed by it in accordance with the operative part of the judgment of 19 September However, the remedy provided by the Treaty for obtaining a finding that the Commission is under such an obligation to act is the one governed by Article 175, to which, moreover, the Hellenic Republic had recourse in the alternative. 25 Consequently, the application for the annulment of Regulation No 381/86 must be dismissed as inadmissible. 26 In order to adjudicate upon the application for annulment of the Commission's refusal to act, in pursuance of the procedure initiated against it for failure to act, it is necessary first to determine what measures an institution is obliged to take under Article 176 in order to comply with a judgment of the Court of Justice annulling a measure adopted by it. 27 In order to comply with the judgment and to implement it fully, the institution is required to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure. 28 However, although a finding of illegality in the grounds of a judgment annulling a measure primarily requires the institution which adopted the measure to eliminate that illegality in the measure intended to replace the annulled measure, it may also, in so far as it relates to a provision with specific scope in a given area, give rise to other consequences for that institution. 2208

10 ASTERIS v COMMISSION 29 In cases such as this one, where the effect of the annulled regulation is limited to a clearly defined period (namely the 1983/84 marketing year), the institution which adopted the measure is first of all under an obligation to ensure that new legislation adopted following the judgment annulling the previous measure and governing the marketing years subsequent to that judgment contains no provisions having the same effect as the provisions held to be illegal. 30 However, by virtue of the retroactive effect of judgments by which measures are annulled, the finding of illegality takes effect from the date on which the annulled measure entered into force. It follows that in the present case the institution concerned is also under an obligation to eliminate from the regulations already adopted when the annulling judgment was delivered and governing marketing years after 1983/84 any provisions with the same effect as the provision held to be illegal. 3i Consequently, the finding that the coefficients to be applied to the amount of aid for Greek producers were illegally fixed is binding with respect not only to the 1983/84 marketing year, covered by the annulled regulation, but also to all subsequent marketing years. By contrast, that finding cannot apply to the marketing years covered by the regulations adopted before the 1983/84 marketing year. 32 By refusing to replace, with effect from the date of adoption of the annulled regulation, the provision contained in the regulations which entered into force after that date having the same effect as the one declared illegal in the judgment of 19 September 1985, the Commission has failed to fulfil its obligations under Article 176, which may be enforced under the procedure provided for in Article It is therefore necessary to declare void the Commission's refusal of 19 June 1986, in response to the Hellenic Republic's request made under Article 175, to comply in full with the judgment of 19 September 1985 in Case 192/83 by providing additional payment of production aid for certain sizes of packagings with tomato concentrates obtained from Greek tomatoes during the 1984/85, 1985/86 and 1986/87 marketing years. 2209

11 JUDGMENT OF JOINED CASES 97, 193, 99 AND 215/86 Costs 34 Pursuant to Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. However, pursuant to the first subparagraph of Article 69 (3), where each party succeeds on some and fails on other heads the Court may order the parties to bear their own costs in whole or in part. Since the applicant companies in Cases 97/86 and 193/86 have failed in their submissions, they must be ordered to pay the costs in those cases. Since the Hellenic Republic has failed in its submissions in Case 99/86, it must be ordered to pay the costs in that case. Since the Hellenic Republic and the Commission have each failed in certain submissions in Case 215/86, they must be ordered to bear their own costs. On those grounds, hereby: THE COURT (1) Dismisses the applications in Cases 97 and 193/86 as inadmissible; (2) Orders the applicant companies to pay the costs in Cases 97 and 193/86; (3) Dismisses the application in Case 99/86 as inadmissible; (4) Orders the Hellenic Republic to pay the costs in Case 99/86; (5) Declares void the Commission's refusal of 19 June 1986, in response to the Hellenic Republic's request made under Article 175, to comply in full with the judgment of 19 September 1985 in Case 192/83 by providing additional 2210

12 ASTERIS v COMMISSION payment of production aid for certain sizes of packagings with tomato concentrates obtained from Greek tomatoes during the 1984/85, 1985/86 and 1986/87 marketing years; (6) Dismisses the remainder of the application; (7) Orders the Hellenic Republic and the Commission to bear their own costs. Bosco Moitinho de Almeida Koopmans Everling Galmot Kakouris Schockweiler Delivered in open court in Luxembourg on 26 April J.-G. Giraud Registrar A. J. Mackenzie Stuart President 2211

JUDGMENT OF THE COURT (Fifth Chamber) 27 September 1988 *

JUDGMENT OF THE COURT (Fifth Chamber) 27 September 1988 * In Joined Cases 106 to 120/87 REFERENCES to the Court under Article 177 of the EEC Treaty by the, Polymeles Protodikeio Athinon (Court of First