61977J0123

APPLICATION FOR ANNULMENT - NATURAL OR LEGAL PERSONS - MEASURES OF INDIVIDUAL CONCERN TO THEM - CRITERIA

( EEC TREATY , SECOND PARA . OF ART . 173 )

THE POSSIBILITY OF DETERMINING MORE OR LESS PRECISELY THE NUMBER OR EVEN THE IDENTITY OF THE PERSONS TO WHOM A MEASURE APPLIES BY NO MEANS IMPLIES THAT IT MUST BE REGARDED AS BEING OF INDIVIDUAL CONCERN TO THEM .

IN THE PRESENT CASE THE FACT THAT ALL THE APPLICANTS MIGHT POSSIBLY BE REFUSED AN IMPORT AUTHORIZATION PURSUANT TO REGULATION NO 1692/77 DOES NOT PROVIDE A SUFFICIENT BASIS FOR REGARDING THE REGULATION AS BEING OF INDIVIDUAL CONCERN TO THEM IN THE SAME WAY AS IF A DECISION HAD BEEN ADDRESSED TO THEM .

IN CASE 123/77

UNIONE NAZIONALE IMPORTATORI E COMMERCIANTI MOTOVEICOLI ESTERI ( UNICME ), ROME ,

I.A.P . INDUSTRIALE S.P.A ., PIAZZANO DI ATESSA ( CHIETI ),

YAMOTO ITALIA S.P.A ., ROVIDO DI BUCCINASCO ( MILAN ),

SUZUKI ITALIA S.P.A ., TURIN ,

KAWASAKI MOTOR ITALIA S.P.A ., GENOA ,

REPRESENTED AND ASSISTED BY GIUSEPPE DE VERGOTTINI , OF THE BOLOGNA BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF CHARLES TURK , 4 RUE NICOLAS WELTER ,

APPLICANTS ,

V

COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , FRANCO GIUFFRIDA , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF J . N . VAN DEN HOUTEN , DIRECTOR OF THE LEGAL DEPARTMENT OF THE EUROPEAN INVESTMENT BANK , 2 PLACE DE METZ ,

DEFENDANT ,

APPLICATIONCO REGARDING , AT THE PRESENT STAGE OF THE PROCEDURE , THE ADMISSIBILITY OF THE APPLICATION FOR THE ANNULMENT OF REGULATION NO 1692/77 OF THE COMMISSION OF 25 JULY 1977 ( OFFICIAL JOURNAL L 188 , P . 11 ) CONCERNING PROTECTIVE MEASURES ON IMPORTS OF CERTAIN MOTOR-CYCLES ORIGINATING IN JAPAN ,

1THE APPLICANTS , BY AN APPLICATION REGISTERED ON 14 OCTOBER 1977 , HAVE SUBMITTED AN APPLICATION TO THE COURT PURSUANT TO ARTICLE 173 OF THE EEC TREATY FOR THE ANNULMENT OF COUNCIL REGULATION NO 1692/77 OF 25 JULY 1977 CONCERNING PROTECTIVE MEASURES ON IMPORTS OF CERTAIN MOTOR-CYCLES ORIGINATING IN JAPAN ( OFFICIAL JOURNAL L 188 , P . 11 ).

2THAT REGULATION , WHICH WAS ADOPTED ON THE PROPOSAL OF THE COMMISSION , IN ACCORDANCE WITH THE PROVISIONS OF COUNCIL DECISION NO 72/455/EEC OF 19 DECEMBER 1972 LAYING DOWN CERTAIN TRANSITIONAL MEASURES FOR THE PROGRESSIVE STANDARDIZATION OF THE IMPORT TERMS OF MEMBER STATES AS REGARDS THIRD COUNTRIES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( 30 AND 31 DECEMBER ), P . 101 ) FOLLOWED A NOTIFICATION FROM ITALY THAT , BECAUSE OF THE INTRODUCTION OF IMPEDIMENTS TO THE IMPORTATION INTO JAPAN OF CERTAIN PRODUCTS , IN PARTICULAR SKI BOOTS , ITALY INTENDED TO INTRODUCE IMPORT AUTHORIZATION ARRANGEMENTS FOR CERTAIN PRODUCTS ORIGINATING IN JAPAN , IN PARTICULAR FOR CERTAIN MOTOR-CYCLES .

3IN THE TERMS OF ARTICLE 1 OF THE CONTESTED REGULATION : ' ' IMPORTS INTO ITALY OF MOTOR-CYCLES HAVING A CYLINDER CAPACITY OF 380 CC OR MORE , FALLING WITHIN HEADING EX 87.09 OF THE COMMON CUSTOMS TARIFF , ORIGINATING IN JAPAN , ARE HEREBY MADE SUBJECT TO THE PRODUCTION OF AN IMPORT AUTHORIZATION ISSUED BY THE ITALIAN AUTHORITIES .

' ' THE TOTAL QUANTITY OF THE PRODUCTS FOR WHICH IMPORT AUTHORIZATIONS SHALL BE ISSUED FOR THE PERIOD 1 JANUARY TO 31 DECEMBER 1977 SHALL NOT EXCEED 18 000 ITEMS ' ' .

4THE APPLICANTS MAINTAIN THAT THAT REGULATION ADVERSELY AFFECTS RIGHTS ACQUIRED UNDER THE PREVIOUS ITALIAN IMPORT SYSTEM AND IS THUS OF DIRECT AND INDIVIDUAL CONCERN TO THEM .

5THE COUNCIL , THE DEFENDANT , HAS RAISED AN OBJECTION OF INADMISSIBILITY IN A SEPARATE DOCUMENT , ALLEGING THAT THE CONTESTED REGULATION IS NEITHER OF DIRECT NOR OF INDIVIDUAL CONCERN TO THE APPLICANTS SO THAT THEIR APPLICATION DOES NOT FULFIL THE CONDITIONS LAID DOWN BY THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY .

6THAT ARTICLE EMPOWERS PRIVATE PERSONS TO CONTEST DECISIONS ADDRESSED TO THEM OR DECISIONS WHICH , ALTHOUGH IN THE FORM OF A REGULATION OR A DECISION ADDRESSED TO ANOTHER PERSON , ARE OF DIRECT AND INDIVIDUAL CONCERN TO THE FORMER .

7IT IS UNNECESSARY TO CONSIDER WHETHER THE CONTESTED MEASURE MAY BE REGARDED AS A REGULATION AND IT IS SUFFICIENT TO ESTABLISH WHETHER IT IS IN FACT OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANTS .

8REGULATION NO 1692/77 ESTABLISHES FOR A LIMITED PERIOD A SYSTEM COVERING THE IMPORTATION INTO ITALY OF MOTOR-CYCLES SPECIFIED THEREIN AND ORIGINATING IN JAPAN .

9THAT SYSTEM CONSISTS IN INTRODUCING A REQUIREMENT TO PRODUCE AN IMPORT AUTHORIZATION ISSUED BY THE ITALIAN AUTHORITIES , AND FOR THE YEAR 1977 SUCH AUTHORIZATONS WERE NOT TO BE ISSUED FOR MORE THAN 18 000 ITEMS .

10THE SYSTEM WOULD ONLY AFFECT THE INTERESTS OF THE IMPORTERS IN THE EVENT OF THE NECESSARY AUTHORIZATION ' S BEING REFUSED THEM .

11CONSEQUENTLY REGULATION NO 1692/77 WOULD ONLY BE OF CONCERN TO THE APPLICANTS IF , PURSUANT TO THAT MEASURE , THEY WERE REFUSED AN IMPORT AUTHORIZATION .

12IN THAT CASE THEY WILL BE ABLE TO RAISE THE MATTER BEFORE THE NATIONAL COURT HAVING JURISDICTION , IF NECESSARY RAISING BEFORE THAT COURT THEIR QUESTIONS CONCERNING THE VALIDITY OF THE REGULATION , WHICH THE COURT WILL , IF IT THINKS FIT BE ABLE TO DEAL WITH BY MEANS OF THE PROCEDURE UNDER ARTICLE 177 OF THE TREATY .

13IN THE PRESENT CASE THE CONDITION LAID DOWN IN ARTICLE 173 , TO THE EFFECT THAT THE CONTESTED MEASURE MUST BE OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANTS , IS NOT FULFILLED .

14THE APPLICANTS CLAIM THAT , TAKEN TOGETHER , THEY REPRESENT ALL THE IMPORTERS AFFECTED BY THE IMPORT SYSTEM INTRODUCED FOR MOTOR-CYCLES ORIGINATING IN JAPAN .

15THEY STATE THAT EVEN BEFORE REGULATION NO 1692/77 WAS ADOPTED IT COULD HAVE BEEN ESTABLISHED THAT THEY WERE THE ONLY PERSONS CONCERNED AND THAT THEY WERE ALL CONCERNED .

16THE POSSIBILITY OF DETERMINING MORE OR LESS PRECISELY THE NUMBER OR EVEN THE IDENTITY OF THE PERSONS TO WHOM A MEASURE APPLIES BY NO MEANS IMPLIES THAT IT MUST BE REGARDED AS BEING OF INDIVIDUAL CONCERN TO THEM .

17IN THE PRESENT CASE THE FACT THAT ALL THE APPLICANTS MIGHT POSSIBLY BE REFUSED AN IMPORT AUTHORIZATION PURSUANT TO REGULATION NO 1692/77 DOES NOT PROVIDE A SUFFICIENT BASIS FOR REGARDING THE REGULATION AS BEING OF INDIVIDUAL CONCERN TO THEM IN THE SAME WAY AS IF A DECISION HAD BEEN ADDRESSED TO THEM .

18ON THE CONTRARY THE REGULATION WILL NOT PRODUCE EFFECTS IN INDIVIDUAL CASES UNTIL IT IS IMPLEMENTED BY THE ITALIAN AUTHORITIES .

19CONSEQUENTLY , THE SECOND CONDITION LAID DOWN BY ARTICLE 173 LIKEWISE REMAINS UNFULFILLED .

20SINCE THE CONDITIONS LAID DOWN BY ARTICLE 173 HAVE NOT BEEN FULFILLED THE APPLICATION MUST ACCORDINGLY BE DISMISSED AS INADMISSIBLE .

COSTS

21UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING .

22IN THE PRESENT CASE THE APPLICANTS HAVE FAILED IN THEIR SUBMISSIONS .

23THEY MUST ACCORDINGLY BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE ;

2 . ORDERS THE APPLICANTS TO PAY THE COSTS .