Opinion of the Advocate-General
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Mr President,
Members of the Court,
1 . This action for annulment concerns a Commission regulation under which import licences were allocated to applicant undertakings . The regulation at issue is Regulation ( EEC ) No 2806/87, ( 1 ) and in particular the second paragraph of Article 1 thereof, which provides as follows :
"All applications for a quantity in excess of the 4 617 tonnes made available by Regulation ( EEC ) No 2539/87 are deemed to have been made for that quantity ."
Legislation applicable
2 . The basic regulation in the beef and veal sector is Regulation ( EEC ) No 805/68 of the Council . ( 2 )
Each year since 1 January 1980, as part of its obligations under the General Agreement on Tariffs and Trade ( GATT ), the Community opens a tariff quota for high-quality fresh, chilled or frozen beef and veal falling under subheadings 02.01 A II ( a ) and 02.01 A II ( b ) of the Common Customs Tariff . For that quota, the applicable Common Customs Tariff duty is fixed at 20 %.
This tariff quota was opened for the first time by Council Regulation ( EEC ) No 2957/79 ( 3 ) and it is Council Regulation ( EEC ) No 3928/86 ( 4 ) that is applicable to the facts of this case . Article 2 of Council Regulation No 2957/79 ( and the same article of the regulations adopted in the following years ) provides that detailed implementing rules are to be adopted in accordance with the procedure laid down in Article 27 of the basic regulation ( hereinafter referred to as the "management committee procedure "). The second recital in the preamble states as the aim of the regulation that "there should be a guarantee of equal and continuing access by all interested importers within the Community to the said quota ".
The detailed implementing rules were first adopted in Commission Regulation No 2972/79 ( 5 ) and again every year after the tariff quota was opened . For 1987, the year at issue in this case, the implementing rules are laid down in Commission Regulation ( EEC ) No 3985/86, which will be considered hereinafter ( in point 6 ). These annual regulations each provided for the allocation of the total tariff quota and also laid down rules governing the certificates of authenticity which guaranteed the origin of meat consignments .
3 . Other detailed implementing rules were also adopted, however, under the management committee procedure . Some are contained in Commission Regulation ( EEC ) No 2377/80, ( 6 ) the legal basis for which is both the basic Council regulation ( in particular, Articles 13 and 14 thereof ( 7 )) and Council Regulation No 2957/79 opening a Community tariff quota ( 8 ). Regulation No 2377/80 contains general arrangements, for a series of different schemes in the beef and veal sector, including the scheme at issue here, governing applications for, and the issue of, import and export licences . Articles 12 and 15 are of paramount importance in this case . The applicant claims that the provision cited above ( in point 1 ) of the regulation at issue is contrary to Regulation No 2377/80 .
It is clear from the documents before the Court that Articles 12 and 15 were amended twice in a manner which affects the interpretation of the legislation concerned, first in 1983, by Commission Regulation ( EEC ) No 3578/82, ( 9 ) and again with effect from 1 January 1988 by Commission Regulation ( EEC ) No 3434/87 . ( 10 )
In the interest of clarity, I shall set out here the three versions of Article 12 and of Article 15 .
4 . The original text of Article 12(1)(a ), with applied from 1 October 1980 until the end of 1982, provided as follows :
"In order to qualify for the special import arrangements referred to in Article 1(1)(d ) of Regulation ( EEC ) No 2972/79 :
( a ) the licence application or applications lodged by any one applicant shall relate to a total quantity corresponding to not less than five tonnes of meat by product weight and not more than 10% of the quantity fixed pursuant to Article 7 of Regulation ( EEC ) No 2972/79 in respect of the arrangements in question for the quarter during which the application or applications are lodged ."
The text which applied from 1 January 1983 until the end of 1987, that is to say during the period covered by the facts at issue in this case, provided as follows :
"... the licence application or applications lodged by any one applicant shall relate to a total quantity corresponding to not less than five tonnes of meat by product weight in respect of the arrangements in question for the month during which the application or applications are lodged ".
The most important amendment ( since the change from quarterly management to monthly management does not seem relevant ) is the deletion of the words "and not more than 10% of the quantity fixed pursuant to Article 7 of Commission Regulation ( EEC ) No 2972/79", that is to say not more than 10% of the quantity of Hilton beef for which a quota is allocated in the year in question . ( 11 ) The reason given for this amendment in the preamble to Regulation No 3578/82 is that is would appear advisable "to adopt a less rigid and more flexible management method in order to ensure optimum utilization of the system ". ( 12 )
Lastly, the text which has applied since 1 January 1988 reads as follows : ( 13 )
"... the licence application or applications lodged by any one applicant shall relate to a total quantity corresponding to not less than five tonnes of meat by product weight and shall not exceed the quantity available in respect of the arrangements in question for the quarter ( 14 ) in which the application(s ) is(are ) lodged ".
A ceiling has therefore been reintroduced, but it is different from before : whereas until 1982 it was 10% of the quantity available, from 1988 it is the total quantity available ( or 100 %).
5 . With effect from 1 October 1980, Article 15(6)(a ) read as follows :
"The quantities applies for under Articles 9 to 12 ( 15 ) may be reduced by a fixed percentage ."
With effect from 1 January 1983, the following text of Article 15(6)(d ) applied to the special import arrangements at issue in this case :
"The Commission shall decide to what extent applications under Article 12 can be accepted . If the quantities for which licences have been requested exceed the quantities available, the Commission shall reduce the amounts requested by a fixed percentage . If the total quantity requested is lower than that available the Commission shall determine the amount of the balance remaining ."
For the discussion before the Court, what is crucial is the power which the Commission, as the general legislature, has granted itself in Article 15(6 ), cited above, as the day-to-day manager to decide the ( appropriate ) fixed percentage by which the quantities applied for may be reduced . As can be seen, the amendment which entered into force on 1 January 1983 did not alter this rule on competence . Nor was it altered by the subsequent amendment which entered into force on 1 January 1988 . ( 16 )
The specific arrangements governing licence applications for 1987
6 . By Regulation No 3928/86, ( 17 ) the annual Community tariff quota for 1987 for high-quality fresh, chilled or frozen beef and veal falling within subheadings 02.01 A II ( a ) and ( b ) was opened by the Council for a total volume of 29 800 tonnes ( Article 1 ).
A week later, ( 18 ) in Regulation No 3985/86, the Commission laid down the detailed rules for the application of the previous regulation, which entered into force on 1 January 1987 . In particular, it states therein that, within the general beef import quota of 29 800 tonnes, 10 000 was allocated for "Hilton beef ". ( 19 ) In addition, Article 7 of the regulation provides that, as regards the lodging of licence applications and the issuing of import licences, the provisions of Articles 12 and 15 of Regulation No 2377/80 apply; Articles 12 and 15 are set out in part above ( in points 4 and 5 ).
Commission Regulation ( EEC ) No 519/87 ( 20 ) on Hilton beef was published in the Official Journal of 21 February 1987 . The last recital in the preamble to that regulation states that the applications lodged relate to total quantities which exceed the quantities available; it then states as follows :
"under these circumstances and taking care to ensure an equitable distribution of the available quantities, it is appropriate to reduce proportionally ( 21 ) the quantities applied for ".
The reduction is fixed in Article 1 of the regulation as follows : applications are to be met to the extent of 3.343% of the quantity requested .
It is not disputed between the parties that ultimately the number of import licences thus issued was not, however, completely used, so that there was a "surplus" of import possibilities . In order to remedy this situation the Commission invited fresh licence applications for Hilton beef in Commission Regulation No 2539/87 of 24 August 1987 . ( 22 ) This regulation provided for licence applications to be submitted during the first 10 days of September 1987 for the total quantity of 4 617 tonnes of beef and veal originating in and imported from the United States of America or from Canada .
By Regulation No 2806/87 of 18 September 1987, which is at issue in these proceedings, the Commission again decided to reduce the applications submitted during the additional registration period, since they also exceeded the total available quantities . This "contested" regulation is comparable, as regards its function, to Regulation No 519/87 of 20 February 1987 ( 23 ) which decided to issue import licences for the first 10 000 tonnes available for which applications could be submitted in February 1987 .
The contested regulation
7 . The crux of the dispute is therefore the way in which the Commission organized the additional application period of 10 days in September 1987 : in the first paragraph of Article 1, the Commission fixed the percentage for "meeting" the applications as follows : 0.2425% of the quantity requested .
The point at issue is the second paragraph of Article 1, already cited above ( in point 1 ), which states that applications for a quantity in excess of 4 617 tonnes, the total available quantity, are deemed to have been made for that quantity . This means in practice that the applications submitted by the applicant, which were for 80 000 plus 240 000, that is to say 320 000 tonnes, were deemed to have been made for only 4 617 tonnes, so that the applicant was granted a quantity of only 0.2425% of 4 617 tonnes, that is to say just over 11 tonnes .
The legal dispute
8 . The applicant, supported by the Netherlands Government, considers that the Commission was not empowered to adopt the contested regulation, No 2806/87 ( described in point 6 ), that the regulation contains an inadequate statement of reasons, that the opinion of the management committee ought to have been obtained and that the regulation was adopted in breach of the principle of equal treatment and legal certainty because it departed from the conditions laid down in Regulation No 2377/80, in particular Article 12 thereof .
The Commission contends that the contested second paragraph of Article 1 of the regulation at issue is no more than the logical conclusion of the principles already contained in the more general rules .
Uncontested facts
9 . On 11 September 1987, the day after the ( second ) period fixed for applications to be submitted ended, the Produktschap voor Vee en Vlees ( Cattle and Meat Board, hereinafter referred to as "the Produktschap ") informed the Commission by telex message of the total applications submitted in the Netherlands; these applications amounted to 1 033 970 tonnes, which was clearly far in excess of the total quantity available throughout the Community, 4 617 tonnes . As has already been stated, Weddel had applied for 80 000 plus 240 000, that is to say 320 000 tonnes, being approximately one-third of the Netherlands total .
By a telex message of 15 September 1987 the Commission replied, stating that "although there has been no specific ceiling under these arrangements since 1982, it is clear from the circumstances and from the terms of Regulation No 2539/87 ( 24 ) that a licence application may not in any event exceed the quantity of 4 617 tonnes available at the beginning of the current month ". The Produktschap then expressed surprise at the telex message of 15 September, which in its view was inconsistent with certain decisions taken earlier, in particular at the meeting of the management committee for Beef and Veal on 11 September 1987 . The Produktschap stated that, even if the Commission were correct, "a practical and fair solution" should be found "for the undertakings concerned, for the situation which you have created"; "the undertakings concerned should at least have the chance to submit licence applications, for the quantities for which applications had been lodged and securities deposited on 10 September, according to your present interpretation ".
The Commission did not accede to the Produktschap' s request and on 18 September adopted Regulation No 2806/87, which is contested in these proceedings and which provided that applications should be deemed to be for 4 617 tonnes .
Contested facts
10 . It is mainly as regards the argument on the breach of legal certainty or the existence of prohibited retroactivity that the parties differ as to what was or was not said in the management committee for Beef and Veal on 11 September with regard to the question of the admissibility of applications for a quantity in excess of the notified quantity to be allocated ( hereinafter referred to as "excessive applications ").
According to the applicant, the Produktschap based its view on the fact that after the deletion of a phrase from Article 12 of Regulation No 2377/80 applications were not subject to a ceiling; in the reply, however, it states that the Produktschap relied in this regard on the practice adopted in other agricultural regulations, ( 25 ) and its view was confirmed by what happened at the meeting of the management committee on 11 September . At that meeting, a representative of the United Kingdom asked whether excessive applications could be submitted, to which the Commission did not reply and stated that it would have to consider the question ( according to the Minutes of the committee meeting ).
The Commission states that, in any event, the meeting of 11 September took place after the end of the period prescribed for applications to be lodged, that it did not state at the meeting that an application for a quantity in excess of the quantity available was admissible and that in any case there could be no question of an "opinion of the committee" but only of an inquiry made by a member and an evasive, non-committal answer made by the Commission representative .
In its reply, the applicant ( which did not itself attend the meeting and is therefore relying on hearsay ) states that the Minutes of the meeting of the management committee drawn up by the Commission are inaccurate; according to the Produktschap, the Commission replied unreservedly that applications could be made for more than the maximum amount . The applicant also states in the reply that the Netherlands Government subsequently submitted a strong protest against what it regarded as a change in the Commission' s position . ( 26 )
In its rejoinder, the Commission states that the Netherlands representative on the management committee did not challenge the accuracy of the Minutes and that any declarations made by the Commission to the Produktschap after the end of the 10-day period in question could not in any event be relied upon against the Commission by an individual undertaking .
Admissibility
11 . The defendant contends that the application is inadmissible . In its view, the contested regulation is not of direct and individual concern to the applicant . In this regard it relies upon three judgments of the Court : Moksel, ( 27 ) Binderer ( 28 ) and Deutz . ( 29 )
The applicant claims that its application is admissible, in accordance with the judgments of the Court in International Fruit Company ( 30 ) and Usines coopératives de déshydratation du Vexin . ( 31 )
12 . It follows from the judgments of the Court that this application is admissible if the contested provision "is not a provision of general application within the meaning of the second paragraph of Article 189 of the Treaty but must be regarded as a conglomeration of individual decisions taken by the Commission under the guise of a regulation ..., each of which decisions affects the legal position of each author of an application for a licence ". ( 32 )
When is a regulation in reality a conglomeration, or bundle, of individual decisions which may therefore be contested by individuals?
In International Fruit Company, the action was brought against a regulation which provided that applications for import licences lodged by a certain date in the recent past would be met only up to 80% of a reference quantity . The applicant had lodged applications during the period in question . Its application was admissible because "when the said regulation was adopted, the number of applications which could be affected by it was fixed" and "no new application could be added ". ( 33 )
In my view, if the action is to be admissible, the scope of the contested regulation must have been fixed in the past : only regulations which produce legal effects for a closed category of persons may be contested by them individually . The decisive factor is not whether many persons are affected or only a few or the fact that "it is possible to determine the number or even the identity of the persons to whom it applies at any given time ". ( 34 ) It is the fact that, at the time at which the contested regulation was adopted, it affected the legal situation of a closed category of persons . ( 35 )
In the circumstances of the judgments in Moksel and Usines coopératives, the contested regulation produced legal effects which applied to an open category of persons : both cases concerned the introduction of a suspension period which ended after the date on which the regulation itself was adopted . ( 36 ) The regulation therefore produced legal effects on the treatment of an unknown and unknowable number of applications, which would still have been lodged without the contested regulation .
In the Binderer case, the action was inadmissible in spite of the fact that the applicant and two other undertakings were the only undertakings which imported the types of wine in question from two specified non-member countries and which were therefore adversely affected by the contested decision . The Court stated that the action was inadmissible because "the purpose of the contested provision is to prohibit the use of certain translations [of descriptions of wine] by any undertakings which at present or in the future import wines of the relevant type into the Community from non-member countries ". ( 37 )
In this case, the contested decision was adopted on 18 September 1987 and published in the Official Journal on 19 September 1987 . It determined the way in which applications lodged between 1 and 10 September 1987 were to be treated . The category of applicants affected by the regulation was therefore clearly closed : no more persons could be added at the time at which the regulation was adopted . The applicants were therefore directly and individually concerned by the contested regulation, which may equally be regarded as a bundle or a series of individual decisions . In other words, the application is admissible .
Arguments as to the substance : powers, statement of reasons and procedure
13 . I shall examine together three of the applicant' s submissions - namely that there is no statement of reasons, that the contested regulation is ultra vires and that it infringes an essential procedural requirement because the management committee was not consulted - because in my view these three submissions are closely linked and are also treated together by the defendant .
According to the applicant, the preamble to the contested regulation is more or less the same as that of Regulation No 519/87, ( 38 ) a similar regulation which was adopted a few months earlier, but by comparison far-reaching effects are added in Article 1 of the contested regulation by the insertion of the second paragraph thereof, which restricts individual applications to the total available quantity . The applicant claims that the fact that inadequate reasons are given for this addition constitutes an infringement of Article 190 of the Treaty .
The applicant also claims that the second paragraph is ultra vires, since it does more than take a decision which the Commission was authorized to make under Article 15(6)(d ) of Regulation No 2377/80 : ( 39 ) in the contested second paragraph the Commission in fact lays down a rule concerning the conditions governing applications which goes beyond the rules contained in Article 12 of Regulation No 2377/80 . The contested regulation does not therefore confine itself to deciding the procedure for lodging licence applications ( as provided for in Article 2 of Regulation No 3928/86, ( 40 ) cited above ( in point 6 ) ) but, on the contrary, usurps a power by laying down, in rules of procedure or implementation, additional conditions .
Lastly, the applicant complains that the defendant infringed a rule of procedure or an essential procedural requirement, or both, which required the management committee to be consulted as provided for by Article 27 of the basic regulation, ( 41 ) on substantive amendments to Regulation No 2377/80, ( 42 ) and in this case Article 12 thereof . In that regard, the applicant bases an a contrario argument on the fact that the procedure laid down in Article 12 of Regulation No 2377/80 was amended by Regulation No 3434/87 ( 43 ) with effect from 1 January 1988, after consultation of the management committee and with an express statement of reasons . That again, in its view, shows that the contested second paragraph of Article 1 requires a further formal basis, which it lacked . Moreover, it is clear from the subsequent amendment which did not enter into force until 1 January 1988 that there were no exceptionally urgent circumstances which could have justified unauthorized assumption of the power to take "exceptional legislative measures ".
14 . The Commission' s reply to these three submissions is essentially contained in the account of what is called in the Defence the "origin of the ceiling ". According to the defendant, the contested second paragraph of Article 1 merely clarifies and does not amend the arrangements laid down in Articles 12 and 15 of Commission Regulation No 2377/80 . ( 44 ) In its view, this is clear from two factors, the text of Regulation No 2539/87, by which the second period for licence applications was opened, ( 45 ) and the general scheme in its entirety .
As regards the text of Regulation No 2539/87, Article 1 of the regulation, which "invites" licence applications, provides that licence applications may be submitted "for a total quantity of 4 617 tonnes of beef and veal ". ( 46 )
As regards the general scheme, the defendant points out that it is clear from Article 15(6)(d ) of Regulation No 2377/80 that an application for more than the total quantity to be awarded throughout the Community is not only fanciful but also speculative . In particular, it would lead to unacceptable results, incompatible with the functioning of market organizations : first, it would discriminate against smaller traders, who could not lodge the ( high ) security which must accompany an excessive application and, secondly, it would lead to deflections of trade and therefore an unfair distribution of the quota between Member States if excessive applications were permitted in some Member States and not in others . The defendant concludes that when it was confronted with the existence of the practice whereby excessively large applications were made in some Member States, it had no alternative but to insert the second paragraph in question into Regulation No 2806/87 as the logical consequence of Article 15(6)(d ) and of the general scheme in its entirety .
15 . The applicant states that the Commission' s contention as set out above is untenable, for the following reasons :
( i ) when identical rules were subsequently adopted, with effect from 1 January 1988, the management committee procedure provided for in Article 27 of the basic regulation was followed; this shows that the rules were not a "consequence" of a general scheme which already existed; this is the a contrario argument referred to above ( in point 13 );
( ii ) the reference to Article 15(6)(d ) is inappropriate since that article had at the material time just been rendered more flexible by Regulation No 3578/82 ( see point 4 above ) and the requirement of a maximum per application had been removed; in this context the Commission had the power only to make a proportional reduction;
( iii ) a proportional reduction means a general reduction and must be contrasted with the reduction of individual applications, such as those which exceed the total quantity available; the applicant stresses the difference between proportional general reductions, which the Commission is empowered to make, and individual reductions, which it is not empowered to make; this view is supported by the Netherlands Government in its intervention .
As regards the unacceptable results referred to by the defendant, consisting, first, of discrimination against smaller traders and, secondly, deflections of trade, the applicant makes the following remarks : the fear of discrimination against smaller undertakings is unjustified since the security ( for excessive applications ) is not high . As regards the deflection of trade - a point which I consider should more appropriately be considered in connection with the principle of equal treatment, below - the applicant states that it is the interpretation put forward by the defendant which leads to inadmissible inequality, namely between undertakings which, like the applicant, quite openly lodge an excessive application and those which, as happened for example in Great Britain according to the applicant, submit a total of 300 applications each for 4 617 tonnes using 299 pseudonyms .
At the hearing the defendant stated that it was easier to identify and combat abuse of the application procedure consisting of the lodging of manifestly excessive applications than abuse entailing the lodging a large number of applications under pseudonyms . It is the Commission' s duty to combat abuse of the procedures in so far as it can . It is a fact that some forms of abuse can be dealt with more quickly or effectively . This point will be considered once again in connection with the applicant' s argument on equal treatment .
16 . My assessment of the question whether the Commission had the power to adopt the contested provision overlaps with my assessment of the question whether the contested provision required an express statement of reasons and whether the applicant' s legitimate expectations were thereby infringed . The reply to these three questions in my view depends upon the reply to the following question : was the Commission entitled, in the contested second paragraph, to make it clear, at a time when all the applications had already been lodged, that each application would be deemed to be only for 4 617 tonnes, the total quantity available?
I have used the words "make it clear" in order to show that it must in fact be a confirmation of a self-evident fact . If the Commission did more than clarify, the problem appears in a totally different light .
If the Court considers that the limitation of applications to the quantity available was the logical and direct result of the aim or the scheme of the whole application system, then the applicant could not legitimately expect that his application would be taken into account for more than the total quantity available . The Community legal principle of legitimate expectation affords protection against unforeseeable changes in a legal situation, not against an erroneous assessment of a stable legal situation . Furthermore, the assessment of a specific legal situation is not merely subjective : protection is afforded only to an expectation which a person could reasonably have . What is more, even if the expectation was justified, it was created in this case by a statement the content of which was disputed and contradicted by properly constituted Minutes of the meeting of the management committee, and which was made on the telephone by an individual Commission official ( 47 ) to persons other than the applicant : this is all the more reason not to consider the expectation it allegedly created capable of being relied upon as against the Commission .
17 . I come now to the reply to the question which I have framed . It must be based first of all on the aim of the system of applications and the aim of reducing the applications in question, that is to say the distribution of the quantity available ammong the persons concerned in the event that the quota is exceeded . It is clear that this is the purpose from the second recital in the preamble to Council Regulation No 2957/79, cited in point 2 above (" there should be a guarantee of equal and continuing access by all interested operators within the Community to the said quota ").
In that context it seems to me that an undertaking which lodges an application for a quantity which is several times higher than the total quantity available throughout the Community is not acting in good faith, or at least performs an act on which it cannot base a legitimate claim . ( 48 ) The excessive application can only have been made in order to distort to the applicant' s own advantage the proportional reduction of the various applications carried out subsequently by the Commission . If this were allowed, an excessive application for one thousand times the quantity available, for example, would be enough, if the other applicants behaved "normally", for the applicant to obtain virtually the entire quantity available . As the applicant has itself pointed out ( point 14 above ), the cost of the bank guarantee or security would be no obstacle to such a practice . All the other "normal" applications would therefore yield virtually nothing . The logical reaction to be expected on the part of disappointed "normal" applicants on the following occasion would be to emulate the applicant' s behaviour . The whole system would then become a kind of poker game and would completely collapse . It is in my view clear from those considerations that the taking into account of individual applications up to the total quantity available, with a view to reducing them later, is dictated by the nature of things and the applicant could not reasonably have expected the Community authorities to act otherwise .
From the pleadings it seemed to me that there is only one ground on which the view expressed above could be challenged and that is the applicant' s allegation that it was normal and accepted in other regulations and rules on the common agricultural policy to "over-apply" or lodge "excessive applications ". In its reply to a written question put by the Court, however, the applicant was unable to support this allegation with any concrete example from other sectors . I therefore conclude that it has not been established that in the contested second paragraph the Commission was doing more than explain something that was self-evident . There is no doubt that it was empowered to do so without giving any reasons other than those which were clear from the nature of things and without consulting the management committee .
I would make one further remark in this connection . I do not consider that it is possible to conclude from the fact that the ceiling of 10% of the quantity available was abolished in 1982 ( see point 4 above ) that the obvious limit of 100% was also abolished . The abolition of this low ceiling of 10% was intended to combat the established shortage of applications . The Commission could not thereby have intended to dismantle the entire application procedure . I therefore consider that the arguments alleging ultra vires, inadequate statement of reasons, breach of the principle of legitimate expectations and failure to consult the management committee must be rejected .
The principle of equal treatment
18 . The applicant states that if the contested second paragraph is valid it would result in unjustified unequal treatment between those like the applicant who lodged a single excessive application in one Member State which was then "levelled off" reduced to 4 617 tonnes and those who lodged applications for the maximum amount in different Member States, in 12 for example, and who would then receive 12 times as much .
The defendant' s reply to this submission is as follows : it recognizes that since the amendment to Article 15(2)(b ) of Regulation No 2377/80 ( 49 ) by Regulation No 3578/82, ( 50 ) different applications submitted by the same applicant in different Member States are no longer lumped together; it admits that this, combined with the ceiling provided for in the contested regulation, might lead to a difference in treatment . However, the defendant states that in practice there were no signs - in the form of deflections of trade, of which the management committee was aware - that any serious problem existed; otherwise, measures would undoubtedly have been taken, at the request of the management committee; it makes the following general remark : "There is no absolute requirement that the Commission should legislate directly to combat the least little imperfection in a common organization of the market ".
Secondly, the defendant states that the applicant was not affected by the potential difference in treatment, since it did not submit applications in other Member States and therefore did not take advantage of a possibility which existed; in that regard it relies upon the judgments of the Court in Cargill v ONIC ( 51 ) and Welding, ( 52 ) which it summarizes as follows : "A person may not allege discrimination if he failed to use the possibilities available in order to avoid it ."
19 . In its reply the applicant demonstrates - in my view convincingly - that the judgments on equal treatment used as the second ground for refuting its submission are not relevant : those cases concerned an inequality between two possibilities which were still open to the applicants at the date at which they were deciding what to do; in the present case, however, at the time when the Commission informed the Produktschap of its interpretation and at the time when it adopted the contested regulation, there was no longer any possibility for the applicant, or its competitors, to lodge applications in other Member States; in the applicant' s words, there was therefore a new "discrimination", or at least a difference created by the contested legislation itself .
20 . The reply to the question whether the contested part of the regulation constitutes discrimination which is contrary to Community law depends upon whether the applicant pursued a course of action which put it in a position to require equal treatment . In this regard, its application cannot in my view be upheld . The comparison between the open manner in which the applicant misuses the system of applications and the granting of licences with the rather covert manner of operation it ascribes to undertakings in other Member States is in itself problematic . There is no right to equal treatment between those who openly abuse regulations introduced by Community law and those who do the same thing but in a disguised manner, which may be more difficult to identify or combat . The fact that the second type of misuse or abuse was not identified or combatted, or at least not as quickly, or the fact that it should be regarded as a more serious abuse, does not mean that the applicant' s behaviour should be approved .
Breach of the principle of legal certainty : impermissible retroactivity
21 According to the applicant and the Netherlands Government, the Commission' s interpretation did not clearly follow from the legislation as it existed in the first 10 days of September, and consequently the Member State, the executive agency ( the Produktschap ) and the undertakings concerned were unaware of it; this interpretation was not communicated to the Produktschap until the period prescribed in Regulation No 2539/87 ( 53 ) had expired . The Commission states that in view of the way in which it has put the contested provision in context within the scheme of rules as a whole, there can be no question of breach of the principle of legal certainty; since neither the management committee nor the Commission had approved the practice of submitting excessive applications, there were no grounds for believing that such excessive applications would carry more weight than applications for the maximum quantity available . The Commission' s view is therefore basically that there were no legitimate expectations ( and therefore no way in which they could have been infringed ).
Reference should be made here to the considerations I have referred to above ( in points 17 and 20 respectively ) on the allegation concerning the practice existing in relation to other agricultural regulations and the effects of the applicant' s action on the system . It follows that there was no breach of the principle of legal certainty or retroactivity, since the Commission' s course of action could be regarded as an inevitable reaction .
Conclusion
22 . On the basis of the considerations set out above, I propose that the Court should declare that the applicant has not adduced any evidence of such a kind as to cast doubt on the validity of Article 1 of Commission Regulation ( EEC ) No 2806/87, and should therefore dismiss the application for annulment and order the applicant to pay the costs .
(*) Original language : Dutch .
( 1 ) Regulation of 18 September 1987 on the issue of import licences for high-quality fresh, chilled or frozen beef and veal ( OJ 1987 L 268, p . 59 ).
( 2 ) Regulation of 27 June 1968 on the common organization of the market in beef and veal ( OJ, English Special Edition 1968 ( I ), p . 187 ).
( 3 ) Regulation of 20 December 1979 opening a Community tariff quota for high-quality fresh, chilled or frozen beef and veal falling within subheadings 02.01 A II ( a ) and 02.01 A II ( b ) of the Common Customs Tariff ( OJ 1979 L 336, p . 5 ).
( 4 ) Regulation 16 December 1986 opening a Community tariff quota for high-quality, fresh, chilled or frozen beef and veal falling within subheadings 02.01 A II ( a ) and 02.01 A II ( b ) of the Common Customs Tariff ( 1987 ) ( OJ 1986 L 365, p . 2 ).
( 5 ) Regulation of 21 December 1979 laying down detailed rules for the application of the import arrangements provided for by Regulations ( EEC ) Nos 2957/79 and 2958/79 in the beef and veal sector ( OJ 1979 L 336, p . 37 ).
( 6 ) Regulation of 4 September 1980 on special detailed rules for the application of the system of import and export licences in the beef and veal sector ( OJ 1980 L 241, p . 5 ).
( 7 ) See footnote 2 above .
( 8 ) See footnote 3 above .
( 9 ) Regulation of 23 December 1982 amending for the third time Regulation ( EEC ) No 263/81 laying down detailed rules for the application of the import arrangements provided for by Regulations ( EEC ) Nos 217/81 and 218/81 in the beef and veal sector, and amending for the sixth time Regulation No 2377/80 ( OJ 1982 L 373, p . 59 ).
( 10 ) Regulation of 17 November 1987 amending Regulations ( EEC ) Nos 2973/79 and 2377/80 as regards certain beef and veal import and export arrangements ( OJ 1987 L 327, p . 7 ).
( 11 ) Article 7 of this regulation referred to Article 1(1)(d ) of the same regulation, in which the quota for "Hilton beef" is allocated within the total quota for 1980 . In 1987, the year at issue here, Article 7 of Commission Regulation ( EEC ) No 3985/86 also referred to Article 1(1)(d ) of the same regulation .
( 12 ) It is not disputed between the parties that at the beginning of the 1980s the quantities applied for were insufficient, so that the quotas were not fully used .
( 13 ) Since Regulation No 3434/87, cited in footnote 10 above .
( 14 ) There is therefore a return to quarterly management .
( 15 ) Article 12 concerns the special import arrangements referred to in Regulation No 2972/79 .
( 16 ) With effect from 1 January 1988 only the last sentence of Article 15(6)(d ) was amended; it concerns the situation in which not enough licences are requested; our problem concerns too many applications .
( 17 ) See footnote 4 above .
( 18 ) Regulation of 23 December 1986 laying down detailed rules for the application of the import arrangements provided for by Council Regulations Nos 3927/86 and 3928/86 in the beef and veal sectors ( OJ 1986 L 370, p . 37 ).
( 19 ) For the official description, see Article 1(1)(d ); both Weddel and the Netherlands Government use the term "Hilton beef ".
( 20 ) Regulation 519/87 of 20 February 1987 on the issue of import licences for high-quality fresh, chilled or frozen beef and veal ( OJ 1987 L 52, p . 12 ).
( 21 ) In the Dutch version, the word "procentueel" ( up to a certain percentage ) appears; in the eight other language versions, the word used is "proportionally ".
( 22 ) Regulation of 24 August 1987 concerning the quantity of high-quality beef and veal that may be imported from the United States of America and from Canada under the arrangements laid down in Council Regulation No 3928/86 ( OJ 1987 L 241, p . 6 ).
( 23 ) See footnote 20 above .
( 24 ) It is clear from the documents before the Court that the Commission was referring here to the words underlined hereinafter in Article 1 of the regulation cited, which provided for a fresh period for applications to be submitted ( see point 6 above ): "licence applications can be submitted in accordance with Article 12 ... during the first 10 days of September ... for a total quantity of 4 617 of beef and veal originating in and imported from the United States of America or from Canada ".
( 25 ) See point 17 below .
( 26 ) Protest of 30 September 1987, produced at the Court' s request .
( 27 ) Judgment in Case 45/81 Moksel v Commission [1982] ECR 1129 .
( 28 ) Judgment in Case 147/83 Binderer v Commission [1985] ECR 257 .
( 29 ) Judgment in Case 26/86 Deutz v Council [1987] ECR 941 .
( 30 ) Judgment in Joined Cases 41 to 44/70, International Fruit Company and Others v Commission [1971] ECR 11 .
( 31 ) Judgment in Case C-244/88 Usines coopératives de déshydratation du Vexin v Commission [1989] ECR 3811 .
( 32 ) Paragraph 21 of the judgment in the International Fruit Company case . See also the earlier judgment of 14 December 1962 in Joined Cases 16 and 17/62 Confédération nationale des produits de fruits et légumes and Others v Council [1962] ECR 4071, and in particular the Opinion of Mr Advocate General Lagrange, p . 481, at p . 484, where he refers to a "collective decision" which is in reality merely "a series of individual decisions ".
( 33 ) Paragraphs 17 and 18 .
( 34 ) Judgment in Deutz, paragraph 8 .
( 35 ) See the judgment in Usines coopératives de déshydratation du Vexin, paragraph 10 .
( 36 ) This point is emphasized in paragraph 12 of the judgment in Usines coopératives de déshydratation du Vexin and is also clearly expressed as a ground for inadmissibility in paragraphs 16 and 17 of the judgment in Moksel .
( 37 ) Paragraph 13 ( emphasis added ).
( 38 ) See footnote 20 above .
( 39 ) See footnote 6 above .
( 40 ) See footnote 4 above .
( 41 ) See footnote 2 above .
( 42 ) See footnote 6 above .
( 43 ) See footnote 10 above .
( 44 ) See footnote 6 above .
( 45 ) See footnote 22 above .
( 46 ) See the reference in footnote 24 .
( 47 ) In paragraph 11 of its judgment in Case 188/82 Thyssen AG v Commission [1983] ECR 3731, the Court stated in relation to an argument based on direct contact between Commission officials and the applicant as follows :
"The argument concerning the promise allegedly made by certain Commission officials must also be rejected, since no official can give a valid undertaking not to apply Community law . No legitimate expectation can therefore have been aroused by such a promise, even if one was made ."
( 48 ) As regards the requirement of good faith in the case of a person relying on legitimate expectation, reference may be made to the judgment of the Court in Joined Cases 42 and 49/59 Snupat v High Authority [1961] ECR 53, at p . 87 .
( 49 ) See footnote 6 above .
( 50 ) See footnote 9 above .
( 51 ) Case 27/77 Cargill v Office national interprofessionel des céréales [1977] ECR 1535, paragraph 19 .
( 52 ) Case 87/78 Welding v Hauptzollamt Hamburg-Waltershof [1978] ECR 2457, paragraph 8 .
( 53 ) See footnote 22 above .
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