1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 31 JANUARY 1986, DEUTZ UND GELDERMANN, SEKTKELLEREI GMBH BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT COUNCIL REGULATION NO 3309/85 OF 18 NOVEMBER 1985 LAYING DOWN GENERAL RULES FOR THE DESCRIPTION AND PRESENTATION OF SPARKLING WINES AND AERATED SPARKLING WINES IS VOID IN SO FAR AS ARTICLE 6 ( 5 ) OF THAT REGULATION PROVIDES THAT REFERENCE TO THE PRODUCTION METHOD KNOWN AS "METHODE CHAMPENOISE" MAY BE USED, IF THE USAGE WAS TRADITIONAL, FOR ONLY EIGHT WINE-GROWING YEARS .
2 BY AN APPLICATION CONCERNING A PROCEDURAL ISSUE MADE PURSUANT TO ARTICLE 91 OF THE RULES OF PROCEDURE, THE COUNCIL RAISED AN OBJECTION OF INADMISSIBILITY . THE COURT THEN DECIDED TO OPEN THE ORAL PROCEDURE ON THE QUESTION OF ADMISSIBILITY ALONE, WITHOUT EXAMINING THE SUBSTANCE OF THE CASE .
3 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE LEGAL BACKGROUND TO THE CASE 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 .
4 IN THE VIEW OF THE COUNCIL AND THE COMMISSION ( THE INTERVENER ), THE APPLICATION DOES NOT SATISFY THE CONDITIONS OF ADMISSIBILITY LAID DOWN IN THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY BECAUSE THE REGULATION, INCLUDING THE CONTESTED PROVISION, CONSTITUTES A LEGISLATIVE MEASURE OF GENERAL APPLICATION AS DEFINED IN THE COURT' S JUDGMENTS AND NOT A DECISION WHICH IS TAKEN IN THE FORM OF A REGULATION WHICH IS OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANT .
5 THE APPLICANT, HOWEVER, ARGUES THAT ALL PRODUCERS TRADITIONALLY USING THE "METHODE CHAMPENOISE", ITSELF INCLUDED, ARE DIRECTLY AND INDIVIDUALLY CONCERNED BY THE CONTESTED PROVISION, WHICH IS EQUIVALENT TO A PROHIBITION IMPOSED BY AN ADMINISTRATIVE MEASURE ADDRESSED TO THEM .
6 AS THE COURT HAS ALREADY HELD, IN PARTICULAR IN ITS JUDGMENT OF 6 OCTOBER 1982 IN CASE 307/81 ( ALUSUISSE ITALIA SPA V COUNCIL AND COMMISSION (( 1982 )) ECR 3463 ), 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 ON FULFILMENT OF THE CONDITION THAT THE CONTESTED MEASURE, ALTHOUGH IN THE FORM OF A REGULATION, IN FACT CONSTITUTES A DECISION WHICH IS OF DIRECT AND INDIVIDUAL CONCERN TO HIM . THE OBJECTIVE OF THAT PROVISION 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 .
7 NEVERTHELESS AN ACTION BROUGHT BY AN INDIVIDUAL IS NOT ADMISSIBLE IN SO FAR AS IT IS DIRECTED AGAINST A REGULATION HAVING GENERAL APPLICATION WITHIN THE MEANING 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 APPRAISE THE NATURE OF THE CONTESTED MEASURE AND IN PARTICULAR THE LEGAL EFFECTS WHICH IT IS INTENDED TO PRODUCE OR ACTUALLY PRODUCES .
8 A MEASURE DOES NOT CEASE TO BE A REGULATION BECAUSE IT IS POSSIBLE TO DETERMINE THE NUMBER OR EVEN THE IDENTITY OF THE PERSONS TO WHOM IT APPLIES AT ANY GIVEN TIME AS LONG AS IT IS ESTABLISHED THAT SUCH APPLICATION TAKES EFFECT BY VIRTUE OF AN OBJECTIVE LEGAL OR FACTUAL SITUATION DEFINED BY THE MEASURE IN RELATION TO ITS PURPOSE .
9 IN ORDER FOR A MEASURE TO BE OF INDIVIDUAL CONCERN TO THE PERSONS TO WHOM IT APPLIES, IT MUST AFFECT THEIR LEGAL POSITION BECAUSE OF A FACTUAL SITUATION WHICH DIFFERENTIATES THEM FROM ALL OTHER PERSONS AND DISTINGUISHES THEM 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, SOCIETE C.A.M . SA V COMMISSION (( 1975 )) ECR 1393 ).
10 IN THESE PROCEEDINGS, THE PARTIES HAVE DISAGREED ON THE QUESTION WHETHER THE PROHIBITION LAID DOWN BY THE CONTESTED PROVISION IS POTENTIALLY ADDRESSED TO ALL PRODUCERS AND MERCHANTS OF SPARKLING WINES IN THE COMMUNITY OR ONLY TO PRODUCERS WHO HAVE TRADITIONALLY USED THE "METHODE CHAMPENOISE ".
11 IT IS SUFFICIENT TO STATE, WITHOUT ITS BEING NECESSARY TO DECIDE THAT ISSUE, THAT EVEN IF THE INTERPRETATION ADVOCATED BY THE APPLICANT WERE TO BE FOLLOWED - NAMELY THAT ONLY SPARKLING-WINE PRODUCERS WHO HAVE TRADITIONALLY USED THE "METHODE CHAMPENOISE" ARE THE ADDRESSEES OF THE PROHIBITION IN QUESTION - IT WOULD STILL NOT FOLLOW THAT THE PROVISION IS NOT LEGISLATIVE IN NATURE .
12 IN FACT THE CONTESTED MEASURE CONCERNS THE APPLICANT ONLY IN ITS OBJECTIVE CAPACITY AS A SPARKLING-WINE PRODUCER WHICH HAS TRADITIONALLY USED A PARTICULAR METHOD OF PRODUCTION IN JUST THE SAME WAY AS ANY OTHER PRODUCER OR TRADER IN THE SAME POSITION .
13 THAT BEING SO THE APPLICATION MUST BE DECLARED INADMISSIBLE .
COSTS
14 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE APPLICANT HAS FAILED IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS .
On those grounds,
THE COURT ( Sixth Chamber )
hereby :
( 1 ) Dismisses the application as inadmissible;
( 2 ) Orders the applicant to pay the costs of the Council and the Commission .
