61973J0134

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PROCEDURE - ACTION FOR FAILURE TO ACT - COURT OF JUSTICE - REFERENCE - NATURAL OR LEGAL PERSON - REGULATION SOUGHT - INADMISSIBILITY

( EEC TREATY, THIRD PARAGRAPH OF ARTICLE 175 )

A PROVISION OF A GENERAL REGULATORY CHARACTER HAVING THE SAME LEGAL SCOPE AS A REGULATION CANNOT BE DESCRIBED BY REASON EITHER OF ITS FORM OR ITS NATURE AS AN ACT ADDRESSED TO A NATURAL OR LEGAL PERSON WITHIN THE MEANING OF THE THIRD PARAGRAPH OF ARTICLE 175 .

IN CASE 134/73

HOLTZ AND WILLEMSEN, GMBH, KREFELD-UERDINGEN ( FEDERAL REPUBLIC OF GERMANY ), REPRESENTED BY ITS DIRECTORS HELMUT REFFELT AND MANFRED LESER, HAVING AS ITS AGENTS AD LITEM MESSRS . MODEST AND PARTNERS, OF THE HAMBURG BAR, AND HAVING CHOSEN ITS ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR FELICIEN JANSEN, BAILIFF, 21, RUE ALDRINGEN, APPLICANT,

V

COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER DANIEL VIGNES AND HAVING CHOSEN ITS ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF J . N . VAN DEN HOUTEN, DIRECTOR OF THE LEGAL SERVICE OF THE EUROPEAN INVESTMENT BANK, 2 PLACE DE METZ,

AND

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER PETER KALBE AND HAVING CHOSEN ITS ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF PIERRE LAMOUREUX, LEGAL ADVISER OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, 4 BOULEVARD ROYAL, DEFENDANTS,

IN THE MATTER, AT THE PRESENT STAGE OF THE PROCEEDINGS, OF THE ADMISSIBILITY OF THE ACTION FOR FAILURE TO ACT BROUGHT BY THE HOLTZ UNDERTAKING AGAINST THE COUNCIL AND THE COMMISSION FOR HAVING ALLEGEDLY INFRINGED THE EEC TREATY BY OMITTING, IN THE CASE OF THE COUNCIL, TO ADOPT A DECISION GRANTING AN ADDITIONAL SUBSIDY FOR COLZA AND RAPE SEED PROCESSED IN OIL MILLS SITUATED IN THE LAND OF NORTH RHINE-WESTPHALIA, AS HAS BEEN DONE FOR ITALIAN OIL MILLS BY REGULATION NO 1336/72/EEC, OF 27 JUNE 1972 ( OJ L 147 OF 29 JUNE 1972 ) AND, IN THE CASE OF THE COMMISSION, TO SUBMIT PROPOSALS TO THE COUNCIL TO THIS EFFECT,

1 BY AN ACTION COMMENCED ON 16 MAY 1973, BASED ON ARTICLE 175 OF THE EEC TREATY, THE APPLICANT COMPLAINS THAT THE COUNCIL HAS FAILED TO ENACT A REGULATION RELATING TO AN ADDITIONAL SUBSIDY FOR COLZA AND RAPE SEED PROCESSED IN OIL MILLS FAR FROM THE PRODUCTION AREAS .

IN ADDITION, THE APPLICANT COMPLAINS THAT THE COMMISSION HAS FAILED TO SUBMIT A PROPOSAL TO THE COUNCIL TO THIS EFFECT .

AS THE COUNCIL AND THE COMMISSION REQUESTED THE APPLICATION OF ARTICLE 91 OF THE RULES OF PROCEDURE THE COURT DECIDED TO GIVE A RULING ON THE ADMISSIBILITY OF THIS ACTION WITHOUT DEALING WITH THE SUBSTANCE OF THE CASE .

2 IN ADDITION TO THE AID GRANTED WITHIN THE FRAMEWORK OF THE COMMON ORGANIZATION OF THE MARKET IN OILS AND FATS, THERE WAS SET UP, AS FROM THE 1967/68 MARKETING YEAR, AN ADDITIONAL SUBSIDY WHOSE PURPOSE WAS TO LESSEN CERTAIN DIFFICULTIES ENCOUNTERED BY ITALIAN OIL MILLS AND WHICH WAS RENEWED FOR THE 1972/73 MARKETING YEAR BY REGULATION NO 1336/72 OF 27 JUNE 1972 ( OJ L 147 OF 29 JUNE 1972, P . 7 ).

CONTENDING THAT THIS ADDITIONAL SUBSIDY CONSTITUTES A DISCRIMINATION PROHIBITED BY ARTICLE 7 OF THE EEC TREATY, THE APPLICANT, BY A LETTER OF 29 JANUARY 1973, CALLED UPON THE COUNCIL 'IN ACCORDANCE WITH THE SECOND PARAGRAPH OF ARTICLE 175 OF THE EEC TREATY TO ENACT A REGULATION CONCERNING AN ADDITIONAL SUBSIDY FOR COLZA AND RAPE SEED PROCESSED IN OIL MILLS FAR FROM THE PRODUCTION AREAS '.

THE APPLICANT ADDED THAT 'THIS REGULATION SHOULD NO LONGER TAKE ACCOUNT OF THE FACT THAT AN OIL MILL IS SITUATED ON THE TERRITORY OF A PARTICULAR MEMBER STATE' BUT 'INSTEAD SHOULD GRANT THIS ADDITIONAL SUBSIDY IN PROGRESSIVE SLICES ACCORDING TO THE DISTANCE BETWEEN THE OIL MILL AND THE PRODUCTION AREAS '.

BY LETTER OF THE SAME DATE THE APPLICANT INFORMED THE COMMISSION OF THE CONTENTS OF THE ONE IT SENT TO THE COUNCIL AND IT BEGGED THE COMMISSION 'TO MAKE USE OF ITS RIGHT OF INITIATIVE AND TO SUBMIT AN APPROPRIATE PROPOSAL TO THE COUNCIL '.

3 BY A LETTER OF 23 MARCH 1973 THE COUNCIL REPLIED TO THE APPLICANT THAT IT WAS OF THE OPINION THAT THE REGULATIONS ESTABLISHING AN ADDITIONAL SUBSIDY FOR COLZA AND RAPE SEED PROCESSED IN ITALY WERE IN CONFORMITY WITH THE EEC TREATY .

BY A LETTER OF 8 MARCH 1973 THE COMMISSION REPLIED TO THE APPLICANT THAT ITS APPLICATION WAS BEING EXAMINED CLOSELY BY ITS DEPARTMENTS .

4 IN ITS ACTION THE APPLICANT DREW ATTENTION TO THE FACT THAT 'THE COUNCIL, IN INFRINGEMENT OF THE TREATY, HAS FAILED TO ENACT A REGULATION FOR AN ADDITIONAL SUBSIDY FOR COLZA AND RAPE SEED PROCESSED IN OIL MILLS FAR FROM THE PRODUCTION AREAS AND PROVIDING, INTER ALIA, IN THE CASE OF AN OIL MILL SITUATED IN THE FEDERAL REPUBLIC OF GERMANY IN THE LAND OF NORTH RHINE-WESTPHALIA, FOR THE PAYMENT OF AN ADDITIONAL SUBSIDY OF 0.60 U.A . PER 100 KG OF COLZA AND RAPE SEED '.

5 BY THE THIRD PARAGRAPH OF ARTICLE 175 ANY NATURAL OR LEGAL PERSON MAY, UNDER THE CONDITIONS LAID DOWN IN THE FIRST AND SECOND PARAGRAPHS OF THE SAME ARTICLE, COMPLAIN TO THE COURT OF JUSTICE THAT THE COUNCIL OR THE COMMISSION HAS, IN INFRINGEMENT OF THE TREATY, 'FAILED TO ADDRESS TO THAT PERSON ANY ACT OTHER THAN A RECOMMENDATION OR AN OPINION '.

IT APPEARS THAT THE ACTION COMMENCED BY THE APPLICANT HAS THE OBJECT OF PROCURING A PROVISION OF A GENERAL REGULATORY CHARACTER HAVING THE SAME LEGAL SCOPE AS REGULATION NO 1336/72, AND NOT AN ACT CONCERNING IT DIRECTLY AND INDIVIDUALLY .

SUCH A REGULATION CANNOT BE DESCRIBED, BY REASON EITHER OF ITS FORM OR OF ITS NATURE, AS AN ACT ADDRESSED TO THE APPLICANT WITHIN THE MEANING OF THE THIRD PARAGRAPH OF ARTICLE 175 .

THE SAME APPLIES IN RESPECT OF THAT PART OF THE ACTION DIRECTED AGAINST THE COMMISSION, AS THE PROPOSAL DEMANDED FROM THE LATTER IS AN INTRINSIC PART OF THE PROCEDURE FOR PREPARATION OF THE REGULATION AND IS THUS NOT CAPABLE OF FALLING IN THE CATEGORY OF ACTS WHICH BY THE THIRD PARAGRAPH OF ARTICLE 175 CAN BE ADDRESSED TO THE APPLICANT .

6 THE ACTION MUST THEREFORE BE DISMISSED AS INADMISSIBLE .

7 BY ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

THE ACTION HAS BEEN DECLARED INADMISSIBLE .

THE APPLICANT MUST THEREFORE BE ORDERED TO PAY THE COSTS OF THE PROCEEDINGS .

THE COURT

HEREBY :

1 . DISMISSES THE ACTION AS INADMISSIBLE .

2 . ORDERS THE APPLICANT TO PAY THE COSTS OF THE PROCEEDINGS .