In Case C-64/93,
1. Donatab Srl, a company governed by Italian law, having its registered office in Caserta, Italy,
2. Reditab Srl, a company governed by Italian law, having its registered office in Rome,
3. Società Tabacchi Industrie Varie ° STIV Srl, a company governed by Italian law, having its registered office in Capaccio, Italy, and
4. Associazione Professionale Trasformatori Tabacchi Italiani ° APTI, a trade association having its registered office in Rome,
represented by Emilio Cappelli and Paolo De Caterini, of the Rome Bar, with an address for service in Luxembourg at the Chambers of Charles Turk, 13B Avenue Guillaume,
applicants,
v
Commission of the European Communities, represented by Eugenio de March, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Nicola Annecchino, of its Legal Service, Wagner Centre, Kirchberg,
defendant,
APPLICATION for the annulment, under the second paragraph of Article 173 of the EEC Treaty, of a fax sent by the Commission to the Italian authorities on 20 January 1993 and for a declaration of inapplicability, under Article 184 of the EEC Treaty, with regard to Commission Regulation (EEC) No 3477/92 of 1 December 1992 laying down detailed rules for the application of the raw tobacco quota system for the 1993 and 1994 harvests (OJ 1992 L 351, p. 11),
THE COURT,
composed of: O. Due, President, C.N. Kakouris, G.C. Rodríguez Iglesias, M. Zuleeg and J.L. Murray (Presidents of Chambers), R. Joliet, F.A. Schockweiler, J.C. Moitinho de Almeida, F. Grévisse, M. Diez de Velasco and P.J.G. Kapteyn, Judges,
Advocate General: M. Darmon,
Registrar: J.-G. Giraud,
after hearing the Opinion of the Advocate General,
makes the following
Order
1 By application lodged at the Court Registry on 12 March 1993, Donatab, two other tobacco-processing companies and a trade association ("the applicants") sought, under the second paragraph of Article 173 of the EEC Treaty, the annulment of a fax sent by the Commission to the Italian authorities on 20 January 1993 and, under Article 184 of the Treaty, a declaration of inapplicability with regard to Commission Regulation (EEC) No 3477/92 of 1 December 1992 laying down detailed rules for the application of the raw tobacco quota system for the 1993 and 1994 harvests (OJ 1992 L 351, p. 11).
2 By Regulation (EEC) No 2075/92 of 30 June 1992 on the common organization of the market in raw tobacco (OJ 1992 L 215, p 70), Regulation (EEC) No 2076/92 of 30 June 1992 fixing the premiums for leaf tobacco by group of tobacco varieties and the processing quantities allocated by group of varieties and by Member State (OJ 1992 L 215, p. 77) and Regulation (EEC) No 2077/92 of 30 June 1992 concerning inter-branch organizations and agreements in the tobacco sector (OJ 1992 L 215, p. 80), the Council effected a reform of the common organization of the markets in raw tobacco.
3 Article 20(1) of Regulation (EEC) No 2075/92 provides:
"Member States shall take all the necessary measures to ensure compliance with the Community provisions concerning raw tobacco. To this end they shall notify to the Commission, within six months after the adoption of this Regulation, the arrangements they intend to make for the purposes of management and control. Within three months after such notification the Commission shall approve the arrangements or ask for adjustments. Where adjustments are required, the Member State shall make them at the earliest opportunity. ..."
4 On 1 December 1992, the Commission adopted Regulation (EEC) No 3477/92, which sets up a system of cultivation certificates to be issued to producers by processing undertakings on the basis of deliveries of tobacco from the 1989, 1990 and 1991 harvests. Article 9(2) provides:
"The Member States shall determine the procedures for the issuing of the cultivation certificates, as well as the measures to be taken for the prevention of fraud in accordance with Article 20(1) of Regulation (EEC) No 2075/92."
5 On 8 January 1993, in accordance with Article 20 of Regulation (EEC) No 2075/92, the Ministry for Agriculture and Forestry of the Italian Republic sent the Commission "a draft national decree for the implementation of the quota system for the 1993 harvest (Council Regulation (EEC) No 2075/92 and Commission Regulation (EEC) No 3477/92)".
6 In the accompanying letter, the Italian authorities drew the Commission' s attention to certain specific points in the draft decree and reiterated a number of questions already put to the Commission in a previous letter in December 1992; they asserted serious difficulty in applying Article 9(3) of Regulation (EEC) No 3477/92 and requested an extension of the period prescribed for the allocation of processing quotas.
7 On 20 January 1993, the Commission replied to the Italian authorities by a fax in French, the tenor of which is as follows:
"Further to your abovementioned fax, please find below the initial reactions of our services, subject to a more detailed response to follow a deeper and more complete examination of the provisions forwarded.
1. The final recital in the preamble, Article 8(3) and Article 16(b) restrict the producer' s freedom to conclude a cultivation contract with a processor other than that which issued his cultivation certificate.
Those provisions are contrary to Article 10(2) and (3) of Regulation (EEC) No 3477/92, the wording of which is clear: under Article 10(3), quantities covered by a cultivation certificate are to be transferred to a processing undertaking other than that which issued the certificate if the producer decides to conclude a cultivation contract with such other undertaking. In that event, that undertaking' s processing quota is to be increased by the quantities deriving from cultivation certificates drawn up by other undertakings, whose quotas are to be reduced accordingly. This principle applies both to previously existing and to new processing undertakings.
The Commission' s services note the difficulties encountered by your administration, particularly with regard to the recognition of new undertakings and their processing capacities and the appraisal of the specific cases covered by Article 9(3) of Regulation (EEC) No 3477/92. An extension of the period prescribed for the apportionment of the 1993 quotas will therefore be proposed to the Management Committee."
8 The applicants considered that that fax constituted a decision of direct and individual concern to them and therefore initiated the present annulment proceedings, in which they have also asked the Court, under Article 184 of the Treaty, to declare Regulation (EEC) No 3477/92 inapplicable.
9 By a separate document lodged at the Court Registry on 6 April 1993, the Commission raised an objection of inadmissibility under Article 91(1) of the Rules of Procedure.
10 Since the case-file contains all the information necessary to reach a decision, the Court has decided to make an order without opening the oral procedure, in accordance with Article 91(3) and (4) of the Rules of Procedure.
11 In support of its objection of inadmissibility, the Commission maintains, principally, that the fax whose annulment is sought does not constitute a decision capable of producing legal effects, whether as regards the Italian Republic, the addressee of the fax, or as regards the applicants. It is merely an expression of the opinion of the Commission' s services on the interpretation of Regulation (EEC) No 3477/92, given in the context of the cooperation between those services and the national authorities. In the alternative, the Commission submits that, even if the fax in issue could be regarded as a decision, that decision would not be of direct and individual concern to the applicants. Since the claim for annulment is thus inadmissible, the same must apply to the supplementary claim for Regulation (EEC) No 3477/92 to be declared inapplicable.
12 The applicants, however, assert that the national measures in issue were communicated to the Commission pursuant to Article 9(2) of Regulation (EEC) No 3477/92 and Article 20(1) of Regulation (EEC) No 2075/92 and are dependent upon prior approval by the Commission. In the contested act, the Commission asks for certain adjustments to be made, which demonstrates that it has the objective tenor of a decision producing binding legal effects. That act is, furthermore, of direct and individual concern to the applicants; the regulations reforming the organization of the market in tobacco immediately confer on the processing undertakings the right to processing quotas and impose upon them the obligation to draw up cultivation certificates for producers; the contested act is also of individual concern to them since the system in question relates only to processing undertakings which have produced tobacco in the past, on the basis of the system of processing premiums for the period from 1989 to 1991.
13 In order to decide whether the objection of inadmissibility raised by the Commission is well founded, it should be recalled that the Court has consistently held that only measures producing binding legal effects of such a kind as to affect the applicant' s interests constitute acts or decisions open to challenge by an application for annulment under Article 173 of the Treaty (see, in particular, Cases C-66/91 and C-66/91 R Emerald Meats v Commission [1991] ECR I-1143; Case C-50/90 Sunzest v Commission [1991] ECR I-2917).
14 In that regard, it is to be noted, first, that in its fax of 20 January 1993 the Commission does not express an exhaustive and definitive view on the draft decree notified to it but merely informs the Italian authorities of its initial reactions, subject to a more detailed response to follow a deeper and more complete examination.
15 Moreover, as regards the application of Regulation (EEC) No 3477/92, the Commission merely recalls the scope of Article 10(2) and (3).
16 Finally, even on the assumption that the fax in issue could be regarded as an act of the Commission requesting adjustments to the proposed national measures, such a kind of act falls within the framework of the cooperation between the Commission and the national authorities which is inherent in and indispensable to the efficient management of the common agricultural policy and cannot be regarded as producing legal effects for individuals.
17 The fax of 20 January 1993 does not, therefore, possess the characteristics of an act producing legal effects for individuals and the claim brought under the second paragraph of Article 173 of the Treaty must accordingly be dismissed as inadmissible.
18 As regards the plea of illegality, it must be borne in mind that Article 184 of the Treaty allows any party, in proceedings in which a regulation of the Council or of the Commission is in issue, to plead the grounds specified in the first paragraph of Article 173 in order to invoke before the Court of Justice the inapplicability of that regulation.
19 It has consistently been held that the possibility provided by Article 184 of the Treaty of invoking the inapplicability of a regulation does not constitute an independent right of action and may only be sought incidentally (Case 33/80 Albini v Council and Commission [1981] ECR 2141).
20 The finding of inadmissibility as regards the applicants' claim under Article 173 of the Treaty entails, in this case, the inadmissibility of the claim brought under Article 184 of the Treaty.
21 The application must therefore be dismissed in its entirety.
Costs
22 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the applicants have been unsuccessful, they must be ordered to pay the costs.
On those grounds,
THE COURT
hereby orders:
1. The application is dismissed as inadmissible.
2. The applicants shall bear the costs.
Luxembourg, 28 June 1993.
