Court of Justice of the European Communities (including Court of First Instance Decisions)

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Action for annulment - Measures in respect of which proceedings may be brought - Definition - Measures with binding legal effects - Opinion sent by the Commission to national agencies responsible for implementing Community legislation under a common organization of agricultural markets
( EEC Treaty, Art . 173 )

In order to ascertain whether measures challenged in an action for annulment are acts within the meaning of Article 173 of the Treaty it is necessary to look to their substance .
Only measures producing binding legal effects of such a kind as to affect the applicant' s interests by clearly altering his legal position constitute acts or decisions open to challenge by an application for annulment .
That cannot be said of an opinion expressed by the Commission on the interpretation to be given to legislative provisions concerning an aid scheme for an agricultural product covered by a common organization of the market where the application of the Community legislation in the sector concerned is a matter for the national agencies appointed for that purpose and no provision of the regulation in question confers on the Commission power to adopt decisions on its interpretation, so that the Commission merely has the possibility, which is always open to it, of expressing an opinion which is not binding on the national authorities .

In Case 151/88
Italian Republic, represented by Professor Luigi Ferrari Bravo, Head of the Department for Contentious Diplomatic Affairs, acting as Agent, assisted by Oscar Fiumara, avvocato dello Stato, with an address for service in Luxembourg at the Italian Embassy,
applicant,
v
Commission of the European Communities, represented by Francisco Santaolalla and Giuliano Marenco, Legal Advisers, acting as Agents, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of its Legal Department, Wagner Centre
defendant,
APPLICATION for annulment of the position adopted by the Commission in its telex message of 15 March 1988 on soya bean contracts concluded in Italy for the 1987/88 marketing year,
THE COURT,
composed of O . Due, President, T . Koopmans, R . Joliet, T . F . O' Higgins and F . Grévisse ( Presidents of Chambers ), Sir Gordon Slynn, G . F . Mancini, C . N . Kakouris, F . A . Schockweiler, J . C . Moitinho de Almeida, G . C . Rodríguez Iglesias, M . Díez de Velasco and M . Zuleeg, Judges,
Advocate General : J . Mischo
Registrar : J.-G . Giraud
after hearing the views of the Advocate General,
makes the following
Order

1 By an application lodged at the Court Registry on 26 May 1988, the Italian Republic brought an action under the first paragraph of Article 173 of the Treaty for the annulment of "the Commission decision contained in telex message No 110836/2/UI/DAN sent by the Commission to the Azienda di Stato per gli interventi nel marcato agricolo ( State Agency for Intervention in Agricultural Markets, hereinafter referred to as "the State Agency ").
2 In that telex message the Commission informed the Italian Republic of its position as regards the application of the Community rules on aid for production of soya beans, in the light in particular of the adoption of Commission Regulation ( EEC ) No 2290/87 of 30 July 1987 ( Official Journal 1987, L 209, p . 37 ), which provides that aid applications may not be submitted to the competent body before the start of the marketing year to which the contracts between producers and purchasers relate .
3 The system of aid for soya bean production was reorganized by Council Regulation ( EEC ) No 1491/85 of 23 May 1985 laying down special measures in respect of soya beans ( Official Journal 1985, L 151, p . 15 ). According to that regulation, aid is to be paid by the Member State on whose territory the beans are harvested and the expenditure incurred by Member States as a result of the obligations arising from the application of the regulation are to be borne by the Community .
4 Article 2(2 ) of the same regulation provides that aid is to be granted "to any natural or legal person who has concluded with individual or associated soya bean producers a contract providing for payment to the producer of a price at least equal to the minimum price referred to in paragraph 3 ".
5 The minimum price at which traders must undertake to buy soya beans from producers is fixed by Article 2(3 ) at a price as close as possible to the "guide price" provided for in Article 1 of the regulation, which is to be fixed every year, in respect of the marketing year commencing the following year, "at a fair level for producers, having regard to the supply requirements of the Community ". Article 2(1 ) provides that the aid is to be equal to the difference between the guide price and the world market price . The world market price and therefore the rate of aid are determined twice a month in accordance with Articles 1 and 11 of Commission Regulation ( EEC ) No 2329/85 of 12 August 1985 laying down detailed rules for the application of the special measures for soya beans ( Official Journal 1985, L 218, p . 16 ).
6 Under Article 2(b ) of Council Regulation ( EEC ) No 2194/85 of 25 July 1985 ( Official Journal 1985, L 204, p . 1 ) in conjunction with Article 7(1 ) of Commission Regulation ( EEC ) No 2329/85, contracts between purchasers and producers must be lodged before a date to be fixed by each Member State but not later than 15 August, before each new marketing year, which by virtue of Article 1(2 ) of Regulation No 1491/85 runs from 1 September to 31 August of the following year .
7 Article 4(1 ) of Council Regulation No 2194/85 provides that "the amount of the aid shall be that valid on the day on which the interested party submits to the competent agency of the producer Member State a request for aid ".
8 By Regulation ( EEC ) No 1921/87 of 2 July 1987 ( Official Journal 1987, L 183, p . 19 ) the Council, in order to achieve "more modest and regular growth in the production" of soya beans, introduced a maximum guaranteed quantity as from the 1987/88 marketing year; if production exceeds the maximum guaranteed quantity, the amount of aid is reduced .
9 As a result of this measure and a reduction in the guide price for the 1987/88 marketing year, expressed in ecus, there was a risk that aid applications might be submitted before the beginning of the marketing year, that is to say before 1 September 1987 . Processors could then have received aid higher than that resulting for the coming marketing year from the changes in the policy of aid for soya bean production .
10 For that reason the Commission, by Regulation ( EEC ) No 2290/87 of 30 July 1987, supplemented Article 12(1)(a ) of Regulation No 2329/85 by providing that from then on aid applications could not be submitted before the start of the marketing year to which the contracts in question related .
11 However, Article 2 of Regulation No 2290/87 laid down transitional provisions which are the basis of the dispute between the Italian Republic and the Commission . Article 2, which entered into force on 31 July 1987, provides as follows : "aid applications referred to in Article 12(1)(a ) of Regulation ( EEC ) No 2329/85 concerning contracts relating to soya beans harvested during the 1978/88 marketing year which are submitted before the date of entry into force of this regulation, shall be regarded as having been submitted on 1 September 1987 or shall be cancelled at the request of the interested party, unless the contracts in question specify a price payable which is not less than the minimum price valid for the 1986/87 marketing year ".
12 In May and June 1987 contracts were concluded in Italy for the purchase of soya beans for the 1987/88 marketing year . These contracts provide that "the price agreed by the parties is the minimum price to be fixed by the ( EEC ) regulation" and state "purely for guidance purposes, that for the 1986/87 marketing year this price was LIT 78 000 per quintal ". Aid applications on the basis of these contracts were submitted before the end of July 1987 .
13 In July 1987, that is to say before Regulation No 2290/87 entered into force, the organizations representing producers and purchasers agreed to pay producers a price of LIT 78 158 per quintal, which was higher than the price for the previous marketing year ( 1986/87 ). That position was confirmed by statements made by purchasers to the State Agency, and an inter-trade agreement was concluded on 4 August 1987, after Regulation No 2290/87 entered into force, laying down the details of payment of the agreed price .
14 The individual contracts concluded between the various producers and purchasers were not themselves amended .
15 The Italian Minister for Agriculture, in a letter of 6 August 1987 to the State Agency, and the State Agency in a letter of 7 August 1987 to the trade organizations concerned, stated that Article 2 of Regulation No 2290/87 gave traders the option of requesting either that the applications for prefixing be cancelled or, on the contrary, that they be maintained at the price originally specified, provided, in the latter case, that they undertook to pay producers the minimum price for the 1986/87 marketing year .
16 The Commission considered that only traders whose contracts clearly provided, before 31 July 1987, for a price at least equal to that for the 1986/87 marketing year could benefit from the exception laid down in Article 2 of Regulation No 2290/87, and the negotiations and agreements of July and August 1987 could not have amended, prior to 31 July 1987, the contracts already concluded . After its officials had visited the State Agency in October 1987, the Commission informed the Italian Government that it "considered that the soya bean contracts in question concluded in Italy for the 1987/88 marketing year are covered by the general rule laid down in Article 2 of Regulation ( EEC ) No 2290/87, that is to say that the aid applications must be regarded as having been submitted on 1 September 1987 or must be cancelled at the request of the interested parties . Consequently, the aid payable, apart from cases in which the application is cancelled, is that applicable at the beginning of the 1987/88 marketing year ".
17 The Italian Republic considers, however, that the contracts in question "specify a price payable which is not less than the minimum price valid for the 1986/87 marketing year" and that they therefore qualify for the exception provided for in Article 2 of Regulation No 2290/87 and entitle the parties concerned to aid in the amount, corresponding to that minimum price, applicable at the time at which the aid applications were submitted .
18 The Italian Republic then lodged this application for annulment .
19 The Commission contends that the application of the Italian Republic is inadmissible on the ground that the contested measure is purely an opinion and is therefore not in the nature of an act adversely affecting the applicant . Since the Court considered that it had sufficient information, it decided to rule immediately on the objection of inadmissibility without opening the oral procedure .
20 The Commission' s objection that the application is inadmissible on the ground that the contested telex message merely contains an opinion as to the interpretation to be given to Regulation No 2290/87 and therefore does not constitute an act adversely affecting the applicant must be upheld .
21 The Court has consistently held that, although in order to ascertain whether measures are acts within the meaning of Article 173 of the Treaty it is necessary to look to their substance, only measures producing binding legal affects of such a kind as to affect the applicant' s interests by clearly altering his legal position constitute acts or decisions open to challenge by an application for annulment ( judgment of 11 November 1981 in Case 60/81 IBM v Commission (( 1981 )) ECR 2639 ).
22 The opinion expressed by the Commission in the contested telex message is not capable of producing legal effects, as the Italian Republic, moreover, acknowledges, since the application of Community provisions on aid for soya bean production is a matter for the national agencies appointed for that purpose and none of the provisions of the aforesaid regulations adopted in this field confers on the Commission power to adopt decisions on their interpretation; the Commission merely has the possibility, which is always open to it, of expressing an opinion which is not binding on the national authorities ( judgments of 10 March 1978 in Case 132/77 Société pour l' exportation des sucres SA v Commission (( 1978 )) ECR 1061, of 27 March 1980 in Case 133/79 Sucrimex SA and Westzucker GmbH v Commission (( 1980 )) ECR 1299, and of 10 June 1982 in Case 217/81 Interagra SA v Commission (( 1982 )) ECR 2233 ).
23 It may further be pointed out that it does not appear from the wording or the content of the contested telex message that it was intended to produce any legal effects, since the Commission expressly described it as an opinion .
24 The telex message in question is therefore part of the internal cooperation between the Commission and the national agencies responsible for applying the Community rules on aid for soya bean production .
25 The situation is different only where the Community legislation confers on the Community authorities a power to adopt decisions which bind the competent national agencies in their implementation of that legislation ( judgment of 26 February 1986 in Case 175/84 Krohn & Co . Import-Export v Commission (( 1986 )) ECR 753 ), which is not the case here .
26 The application of the Italian Republic must therefore be dismissed as inadmissible .

Costs
27 According to Article 69(2 ) of the Rules of Procedure, the unsuccessful party must be ordered to pay the costs . Since the Italian Republic has failed in its submissions, it must be ordered to pay the costs .

On those grounds,
THE COURT
hereby :
( 1)Dismisses the application as inadmissible;
( 2)Orders the Italian Republic to pay the costs .
Luxembourg, 17 May 1989 .