61984J0050

1 . APPLICATION TO HAVE A MEASURE DECLARED VOID - ACTION BY A COMPANY IN FORMATION AGAINST AN ECSC GENERAL DECISION - CAPACITY TO BRING AN ACTION - CONDITIONS - LEGAL PERSONALITY - ASSESSMENT THEREOF UNDER NATIONAL LAW

( ECSC TREATY , ART . 33 , SECOND PARA .)

2 . PROCEDURE - ADMISSIBILITY OF ACTIONS - ASSESSMENT BY REFERENCE TO THE SITUATION PREVAILING WHEN THE APPLICATION IS LODGED - RECTIFICATION - CONDITIONS

1 . IN ORDER TO BE ABLE TO INSTITUTE PROCEEDINGS AGAINST A GENERAL DECISION , ACTING AS AN UNDERTAKING PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 33 OF THE ECSC TREATY , A COMPANY IN FORMATION MUST HAVE ACQUIRED LEGAL PERSONALITY AND FULFILMENT OF THAT CONDITION MUST NECESSARILY BE ESTABLISHED IN ACCORDANCE WITH NATIONAL LAW .

2 . THE ADMISSIBILITY OF AN ACTION MUST BE JUDGED BY REFERENCE TO THE SITUATION PREVAILLING WHEN THE APPLICATION IS LODGED . IF AT THAT TIME THE CONDITIONS FOR AN ACTION TO BE BROUGHT ARE NOT FULFILLED , THE ACTION IS INADMISSIBLE , UNLESS THE DEFECT IS RECTIFIED WITHIN THE PERIOD PRESCRIBED FOR PROCEEDINGS TO BE INSTITUTED .

IN CASE 50/84

SRL BENSIDER , ROVEREDO IN PIANO ( ITALY ),

SA SIPROTOLE , NEUPRE ( BELGIUM ),

SA VIELLEVOYE-INTERTOL , ALLEUR ( BELGIUM ),

SPRL HAIDON ET HUBIN , TIHANGE-LEZ-HUY ( BELGIUM ),

JEAN MORSA , EMBOURG-CHAUDFONTAINE ( BELGIUM ),

SOCIETE COOPERATIVE DY METAL , BRUSSELS ,

SA CHARLEMETAL , BRUSSELS ,

REPRESENTED BY R . SWENNEN , OF TH LIEGE BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J . WAGENER , 10 A BOULEVARD DE LA FOIRE ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , E . LASNET , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF M . BESCHEL , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

CONCERNING , AT THIS STAGE IN THE PROCEDURE , THE ADMISSIBILITY OF THE ACTION BROUGHT BY THE APPLICANTS UNDER THE SECOND PARAGRAPH OF ARTICLE 33 OF THE ECSC TREATY ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 25 FEBRUARY 1984 , SRL BENSIDER , WHOSE REGISTERED OFFICE IS AT ROVEREDO IN PIANO , ITALY , AND SIX OTHER APPLICANTS RESIDENT IN BELGIUM , NAMELY SA SIPROTOLE , SA VIELLEVOYE-INTERTOL , SPRL HAIDON ET HUBIN , JEAN MORSA , SOCIETE COOPERATIVE DY METAL AND SA CHARLEMETAL , BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 33 OF THE ECSC TREATY FOR A DECLARATION THAT COMMISSION DECISION NO 3717/83/ECC OF 23 DECEMBER 1983 INTRODUCING FOR STEEL UNDERTAKINGS AND STEEL DEALERS A PRODUCTION CERTIFICATE AND AN ACCOMPANYING DOCUMENT FOR DELIVERY OF CERTAIN PRODUCTS ( OFFICIAL JOURNAL 1983 , L 373 , P . 9 ) WAS VOID .

2 THE COMMISSION OBJECTED THAT THE ACTION WAS INADMISSIBLE AND ASKED THE COURT TO GIVE A DECISION ON THAT OBJECTION WITHOUT CONSIDERING THE SUBSTANCE OF THE CASE . THE COURT REFERRED THE CASE TO THE FIFTH CHAMBER FOR CONSIDERATION OF THE ADMISSIBILITY OF THE ACTION .

3 AS REGARDS THE SIX APPLICANTS RESIDENT IN BELGIUM , THE COMMISSION MAINTAINS THAT THE PERIOD LAID DOWN IN THE THIRD PARAGRAPH OF ARTICLE 33 OF THE ECSC TREATY WITHIN WHICH PROCEEDINGS ARE TO BE INSTITUTED EXPIRED ON 17 FEBRUARY 1984 . AS REGARDS THOSE APPLICANTS , THEREFORE , THE ACTION IS INADMISSIBLE AS HAVING BEEN BROUGHT OUT OF TIME .

4 ALTHOUGH SRL BENSIDER ' S ACTION WAS BROUGHT ON THE LAST DAY OF THE PRESCRIBED PERIOD , WHICH INCLUDED THE EXTENSION ON ACCOUNT OF DISTANCE GRANTED TO PARTIES RESIDENT WITHIN THE TERRITORY OF THE ITALIAN REPUBLIC BY VIRTUE OF ANNEX II TO THE RULES OF PROCEDURE , THAT ACTION IS , IN THE COMMISSION ' S VIEW , ALSO INADMISSIBLE BECAUSE ON THAT DATE THE COMPANY HAS NOT BEEN ENTERED IN THE COMMERCIAL REGISTER . UNDER ITALIAN LAW IT HAD THEREFORE NOT ACQUIRED LEGAL PERSONALITY AND WAS NOT ENTITLED TO BE A PARTY TO LEGAL PROCEEDINGS .

5 THE APPLICANTS DO NOT DISPUTE THE CORRECTNESS OF THOSE ARGUMENTS . THEY CLAIM HOWEVER THAT SRL BENSIDER WAS ENTERED IN THE COMMERCIAL REGISTER ON 13 MARCH 1984 AND THAT , IN ACCORDANCE WITH NORMAL PRACTICE IN ITALY , THE STEPS TAKEN BY THE SOLE DIRECTOR OF THE COMPANY BEFORE IT WAS THUS REGISTERED WERE APPROVED AN RATIFIED AT A SUBSEQUENT ANNUAL GENERAL MEETING HELD ON 4 APRIL 1984 . THAT RATIFICATIONS WAS RETROACTIVE . MOREOVER , THE COMMISSION MAY NOT , IN THEIR VIEW , VALIDLY HAVE RECOURSE TO AN INTERNAL RULE OF ITALIAN LAW IN ORDER TO PREVENT AN ACTION BEFORE THE COURT OF JUSTICE .

6 THE APPLICANTS CONTEND THAT , SINCE THE ACTION IS ADMISSIBLE AS FAR AS SRL BENSIDER IN CONCERNED , THE SAME APPLIES TO THE OTHER APPLICANTS . ALL THE APPLICANTS ARE ENGAGED EXCLUSIVELY IN THE MARKETING OF SECOND STEEL PRODUCTS AND THEY ARE THEREFORE ENTITLED TO INSTITUTE PROCEEDINGS BY MEANS OF A SINGLE APPLICATION SINCE THEIR COMMON RIGHTS OF ACTION ARE CONNECTED AND ARE EVEN INDIVISIBLE .

7 UNDER THE SECOND PARAGRAPH OF ARTICLE 33 OF THE ECSC TREATY UNDERTAKINGS MAY INSTITUTE PROCEEDINGS FOR A DECLARATION THAT GENERAL DECISIONS WHICH THEY CONSIDER TO INVOLVE A MISUSE OF POWERS AFFECTING THEM ARE VOID . IF THE UNDERTAKING IS A COMPANY IN FORMATION , THAT COMPANY MUST , IN ORDER TO INSTITUTE PROCEEDINGS , HAVE ACQUIRED LEGAL PERSONALITY , AND THAT FACT MUST NECESSARILY BE ESTABLISHED IN ACCORDANCE WITH NATIONAL LAW .

8 THE ADMISSIBILITY OF AN ACTION MUST BE JUDGED BY REFERENCE TO THE SITUATION PREVAILING WHEN THE APPLICATION IS LODGED . IF AT THAT TIME THE CONDITIONS FOR AN ACTION TO BE BROUGHT ARE NOT FULFILLED , THE ACTION IS INADMISSIBLE , UNLESS THE DEFECT IS RECTIFIED WITHIN THE PERIOD PRESCRIBED FOR PROCEEDINGS TO BE INSTITUTED .

9 THE PARTIES AGREE THAT WHEN THE APPLICATION WAS LODGED , ON THE LAST DAY OF THE PRESCRIBED PERIOD , BENSIDER HAD NOT YET ACQUIRED LEGAL PERSONALITY UNDER ITS NATIONAL LAW . IT FOLLOWS THAT IN THIS CASE THE ACTION IS INADMISSIBLE .

10 AS REGARDS THE SIX BELGIAN APPLICANTS , IT NEED ONLY BE STATED THAT THE APPLICATION WAS LODGED AFTER THE EXPIRY OF THE PERIOD PRESCRIBED FOR PROCEEDINGS TO BE INSTITUTED BY UNDERTAKINGS RESIDENT WITHIN THE TERRITORY OF THE KINGDOM OF BELGIUM .

11 THE APPLICATION MUST THEREFORE BE DISMISSED AS INADMISSIBLE IN ITS ENTIRETY .

COSTS

12 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE APPLICANTS HAVE FAILED IN THEIR SUBMISSIONS , THEY MUST BE ORDERED TO BEAR THE COSTS JOINTLY AND SEVERALLY .

ON THOSE GROUNDS ,

THE COURT ( FIFTH CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE ;

2.ORDERS THE APPLICANTS TO BEAR THE COSTS JOINTLY AND SEVERALLY .