61982J0231

1 . APPLICATION FOR A DECLARATION OF NULLITY - NATURAL AND LEGAL PERSONS - MEASURES OF DIRECT AND INDIVIDUAL CONCERN TO THEM - DECISION ADDRESSED TO MEMBER STATES AUTHORIZING THEM NOT TO APPLY COMMUNITY TREATMENT TO CERTAIN PRODUCTS - DECISION NOT OF INDIVIDUAL CONCERN TO THE ONLY IMPORTER OF THE PRODUCTS IN QUESTION

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

2 . MEASURES ADOPTED BY THE INSTITUTIONS - LEGAL NATURE - REGULATION OR DECISION - DISTINCTION - CRITERIA

( EEC TREATY , ARTS 173 , SECOND PARA ., AND 189 )

1 . THIRD PARTIES CANNOT BE INDIVIDUALLY CONCERNED BY A DECISION ADDRESSED TO ANOTHER PERSON UNLESS IT AFFECTS THEM BY REASON OF CERTAIN ATTRIBUTES WHICH ARE PECULIAR TO THEM OR BY REASON OF CIRCUMSTANCES IN WHICH THEY ARE DIFFERENTIATED FROM ALL OTHER PERSONS AND UNLESS BY VIRTUE OF THOSE FACTORS IT DISTINGUISHES THEM INDIVIDUALLY JUST AS IN THE CASE OF THE PERSON ADDRESSED .

A DECISION ADDRESSED TO CERTAIN MEMBER STATES WITH THE PURPOSE OF AUTHORIZING THEM NOT TO APPLY COMMUNITY TREATMENT FOR A FIXED PERIOD TO IMPORTS OF PRODUCTS ORIGINATING IN A NON-MEMBER COUNTRY AND IN FREE CIRCULATION IN THE OTHER MEMBER STATES IS NOT OF INDIVIDUAL CONCERN TO THE ONLY IMPORTER OF THE PRODUCTS IN QUESTION ESTABLISHED IN THE MEMBER STATES TO WHICH THE DECISION IS ADDRESSED SINCE IT CONCERNS THE IMPORTER MERELY BY VIRTUE OF HIS OBJECTIVE STATUS AS AN IMPORTER IN THE SAME MANNER AS ANY OTHER TRADER WHO IS , OR MIGHT BE IN THE FUTURE , IN THE SAME SITUATION . WITH REGARD TO IMPORTERS SUCH A DECISION IS THEREFORE A MEASURE OF GENERAL APPLICATION COVERING SITUATIONS WHICH ARE DETERMINED OBJECTIVELY AND IT ENTAILS LEGAL EFFECTS FOR CATEGORIES OF PERSONS ENVISAGED IN A GENERAL AND ABSTRACT MANNER .

2 . 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 .

IN CASE 231/82

SPIJKER KWASTEN BV , A COMPANY HAVING ITS REGISTERED OFFICE AT BEVERWIJK , THE NETHERLANDS , REPRESENTED BY A . F . SAVORNIN LOHMAN OF THE ROTTERDAM BAR , AND I . G . F . CATH OF THE ROTTERDAM BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF LAMBERT H . DUPONG , 14A RUE DES BAINS ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , PETER GILSDORF , ACTING AS AGENT , ASSISTED BY PIETER JAN KUYPER , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

CONCERNING , AT THE PRESENT STAGE OF THE PROCEEDINGS , THE ADMISSIBILITY OF AN ACTION BROUGHT UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT THE COMMISSION ' S DECISION OF 7 JULY 1982 AUTHORIZING THE KINGDOM OF THE NETHERLANDS NOT TO APPLY COMMUNITY TREATMENT TO BRUSHES FALLING WITHIN SUBHEADING 96.01 OF THE COMMON CUSTOMS TARIFF ORIGINATING IN THE PEOPLE ' S REPUBLIC OF CHINA AND IN FREE CIRCULATION IN THE OTHER MEMBER STATES ( OFFICIAL JOURNAL 1982 , C 171 , P . 12 ) IS VOID ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 8 SEPTEMBER 1982 SPIJKER KWASTEN BV , BEVERWIJK , BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT THE DECISION OF THE COMMISSION OF 7 JULY 1982 ( OFFICIAL JOURNAL 1982 , C 171 , P . 12 ) IS VOID . THAT DECISION , WHICH WAS ADOPTED ON THE BASIS OF ARTICLE 115 OF THE TREATY , AUTHORIZED THE KINGDOM OF BELGIUM , THE GRAND DUCHY OF LUXEMBOURG AND THE KINGDOM OF THE NETHERLANDS NOT TO APPLY COMMUNITY TREATMENT UNTIL 31 DECEMBER 1982 TO BRUSHES FALLING WITHIN SUBHEADING EX 96.01 OF THE COMMON CUSTOMS TARIFF , ORIGINATING IN THE PEOPLE ' S REPUBLIC OF CHINA AND IN FREE CIRCULATION IN THE MEMBER STATES , IN RESPECT OF WHICH IMPORT LICENCES WERE APPLIED FOR AFTER 25 JUNE 1982 .

2 THE APPLICANT , A COMPANY GOVERNED BY NETHERLANDS LAW WHICH IMPORTS BRUSHES AND SIMILAR PRODUCTS FALLING WITHIN SUBHEADING EX 96.01 OF THE COMMON CUSTOMS TARIFF , APPLIED ON 18 JUNE 1982 TO THE NETHERLANDS AUTHORITIES FOR AN IMPORT LICENCE FOR A CONSIGNMENT OF BRUSHES ORIGINATING IN THE PEOPLE ' S REPUBLIC OF CHINA , WHICH WERE TO BE IMPORTED FROM THE FEDERAL REPUBLIC OF GERMANY . THE NETHERLANDS AUTHORITIES POSTPONED DEALING WITH THAT APPLICATION PENDING THE ADOPTION OF THE CONTESTED DECISION BY THE COMMISSION . HOWEVER , THE IMPORT LICENCE WAS GRANTED SUBSEQUENTLY WHEN IT BECAME CLEAR THAT THAT DECISION DID NOT CONCERN THE IMPORTS IN RESPECT OF WHICH THE IMPORT LICENCE HAD BEEN APPLIED FOR BEFORE 25 JUNE 1982 .

3 THE APPLICANT INSTITUTED THE PRESENT PROCEEDINGS BECAUSE IT CONSIDERED THAT THE CONTESTED DECISION AFFECTED IT ADVERSELY INASMUCH AS IT AFFECTED ITS FUTURE IMPORTS .

4 THE COMMISSION RAISED AN OBJECTION OF INADMISSIBILITY UNDER ARTICLE 91 ( 1 ) OF THE RULES OF PROCEDURE AND THE COURT DECIDED TO GIVE A DECISION ON THE ADMISSIBILITY OF THE PRESENT ACTION WITHOUT CONSIDERING THE SUBSTANCE OF THE CASE .

5 THE COMMISSION OBJECTS THAT THE CONTESTED DECISION IS ADDRESSED TO THE BENELUX STATES ALONE AND THAT IT IS NEITHER OF DIRECT NOR OF INDIVIDUAL CONCERN TO THE APPLICANT WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY .

6 ON THE OTHER HAND THE APPLICANT CONTENDS IN SUPPORT OF THE ADMISSIBILITY OF THE ACTION THAT THE SAID DECISION IS OF DIRECT AND INDIVIDUAL CONCERN TO IT WITH REGARD TO ITS LEGAL POSITION SINCE IT IS THE ONLY TRADER-IMPORTER ESTABLISHED IN THE BENELUX STATES WHICH REGULARLY IMPORTS INTO THE NETHERLANDS BRUSHES ORIGINATING IN THE PEOPLE ' S REPUBLIC OF CHINA AND SINCE , MOREOVER , THE CONTESTED DECISION WAS ADOPTED ON ACCOUNT OF THE IMPORTATION WITH WHICH THE PRESENT CASE IS CONCERNED .

7 UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY THE ADMISSIBILITY OF AN ACTION FOR A DECLARATION THAT A DECSION IS VOID BROUGHT BY A NATURAL OR LEGAL PERSON TO WHOM THE DECISION WAS NOT ADDRESSED IS SUBJECT TO THE REQUIREMENT THAT THE DECISION MUST BE OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANT . IN THIS CASE SINCE SPIJKER KWASTEN BV IS NOT ONE OF THE PERSONS TO WHOM THE CONTESTED DECISION WAS ADDRESSED IT IS NECESSARY TO CONSIDER WHETHER THE DECISION IS OF DIRECT AND INDIVIDUAL CONCERN TO IT .

8 THE COURT HAS ALREADY STATED IN ITS JUDGMENT OF 15 JULY 1963 IN CASE 25/62 PLAUMANN ( 1963 ) ECR 95 THAT PERSONS OTHER THAN THOSE TO WHOM A DECISION IS ADDRESSED MAY CLAIM TO BE INDIVIDUALLY CONCERNED BY THAT DECISION ONLY IF IT AFFECTS THEM BY REASON OF CERTAIN ATTRIBUTES WHICH ARE PECULIAR TO THEM OR BY REASON OF CIRCUMSTANCES IN WHICH THEY ARE DIFFERENTIATED FROM ALL OTHER PERSONS AND IF BY VIRTUE OF THOSE FACTORS IT DISTINGUISHES THEM INDIVIDUALLY JUST AS IN THE CASE OF THE PERSON ADDRESSED .

9 THAT IS NOT THE CASE IN THE PRESENT PROCEEDINGS . THE CONTESTED DECISION CONCERNS THE APPLICANT MERELY BY VIRTUE OF ITS OBJECTIVE CAPACITY AS AN IMPORTER OF THE GOODS IN QUESTION IN THE SAME MANNER AS ANY OTHER TRADER WHO IS , OR MIGHT BE IN THE FUTURE , IN THE SAME SITUATION . IN FACT THE PURPOSE OF THE DECISION IS TO AUTHORIZE THE BENELUX STATES NOT TO APPLY COMMUNITY TREATMENT FOR A FIXED PERIOD TO ALL IMPORTS OF BRUSHES ORIGINATING IN THE POEPLE ' S REPUBLIC OF CHINA AND IN FREE CIRCULATION IN ANOTHER MEMBER STATE . WITH REGARD TO THE IMPORTERS OF SUCH PRODUCTS IT IS THEREFORE A MEASURE OF GENERAL APPLICATION COVERING SITUATIONS WHICH ARE DETERMINED OBJECTIVELY AND IT ENTAILS LEGAL EFFECTS FOR CATEGORIES OF PERSONS ENVISAGED IN A GENERAL AND ABSTRACT MANNER . THUS THE CONTESTED DECISION IS NOT OF INDIVIDUAL CONCERN TO THE APPLICANT .

10 THAT CONCLUSION IS NOT INVALIDATED BY THE FACT THAT THE APPLICANT , ACCORDING TO ITS STATEMENT WHICH WAS NOT DISPUTED BY THE COMMISSION , IS THE ONLY TRADER-IMPORTER ESTABLISHED IN THE BENELUX STATES REGULARLY IMPORTING INTO THE NETHERLANDS BRUSHES ORIGINATING IN THE PEOPLE ' S REPUBLIC OF CHINA AND THAT IT WAS ONE OF ITS IMPORTS WHICH LED TO THE ADOPTION OF THE CONTESTED DECISION . AS THE COURT STATED IN ITS JUDGMENT OF 6 OCTOBER 1982 IN CASE 307/81 ALUSUISSE ( 1982 ) ECR 3463 , 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 .

11 IN THOSE CIRCUMSTANCES THE CONTESTED DECISION CANNOT BE CHALLENGED BY THE APPLICANT UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY . FURTHERMORE , THAT CONCLUSION IS CONSISTENT WITH THE SCHEME OF REMEDIES PROVIDED FOR BY COMMUNITY LAW SINCE THE IMPORTERS IN QUESTION HAVE THE RIGHT TO CHALLENGE BEFORE THE NATIONAL COURTS THE REFUSAL ON THE PART OF THE NATIONAL AUTHORITIES , BASED ON THE APPLICATION OF COMMUNITY LAW , TO GRANT AN IMPORT LICENCE .

12 FOR ALL THOSE REASONS THE APPLICATION MUST BE DECLARED INADMISSIBLE .

COSTS

13 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . AS THE APPLICANT HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE ;

2 . ORDERS THE APPLICANT TO PAY THE COSTS .