61985J0293

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ACTION FOR DECLARATION OF FAILURE TO FULFIL OBLIGATIONS - PRE-LITIGATION PROCEDURE - PURPOSE - PERIODS ALLOWED TO THE MEMBER STATE - REQUIREMENT THAT PERIODS BE REASONABLE - CRITERIA

( EEC TREATY, ART . 169 )

IN THE CONTEXT OF AN ACTION FOR A DECLARATION THAT A MEMBER STATE HAS FAILED TO FULFIL ITS OBLIGATIONS, THE PURPOSE OF THE PRE-LITIGATION PROCEDURE IS TO GIVE THE MEMBER STATE CONCERNED AN OPPORTUNITY, ON THE ONE HAND, TO COMPLY WITH ITS OBLIGATIONS UNDER COMMUNITY LAW AND, ON THE OTHER, TO AVAIL ITSELF OF ITS RIGHT TO DEFEND ITSELF AGAINST THE COMPLAINTS MADE BY THE COMMISSION .

IN VIEW OF THAT DUAL PURPOSE THE COMMISSION MUST ALLOW MEMBER STATES A REASONABLE PERIOD TO REPLY TO THE LETTER OF FORMAL NOTICE AND TO COMPLY WITH A REASONED OPINION, OR, WHERE APPROPRIATE, TO PREPARE THEIR DEFENCE . IN ORDER TO DETERMINE WHETHER THE PERIOD ALLOWED IS REASONABLE, ACCOUNT MUST BE TAKEN OF ALL THE CIRCUMSTANCES OF THE CASE . THUS, VERY SHORT PERIODS MAY BE

JUSTIFIED IN PARTICULAR CIRCUMSTANCES, ESPECIALLY WHERE THERE IS AN URGENT NEED TO REMEDY A BREACH OR WHERE THE MEMBER STATE CONCERNED IS FULLY AWARE OF THE COMMISSION' S VIEWS LONG BEFORE THE PROCEDURE STARTS .

WHERE THE TIME-LIMITS SET ARE UNREASONABLE, THE COMMISSION CANNOT PREVENT ITS APPLICATION FROM BEING DECLARED INADMISSIBLE BY ASSERTING THAT THE TIME-LIMITS LAID DOWN WERE NOT ABSOLUTE AND THAT CONSEQUENTLY REPLIES GIVEN AFTER THEIR EXPIRY WOULD HAVE BEEN ACCEPTED . A MEMBER STATE TO WHICH A MEASURE SUBJECT TO A TIME-LIMIT IS ADDRESSED CANNOT KNOW IN ADVANCE WHETHER, AND TO WHAT EXTENT, THE COMMISSION WILL IF NECESSARY GRANT IT AN EXTENSION OF THAT TIME-LIMIT .

IN CASE 293/85

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, J . GRIESMAR, ACTING AS AGENT, ASSISTED BY G . BEAUTHIER, OF THE BRUSSELS BAR, AND BY L . MISSON, OF THE LIEGE BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,

APPLICANT,

V

KINGDOM OF BELGIUM, REPRESENTED BY R . HOEBAER, DIRECTOR AT THE MINISTRY OF FOREIGN AFFAIRS, FOREIGN TRADE AND COOPERATION WITH DEVELOPING COUNTRIES, ACTING AS AGENT, ASSISTED BY M . WAELBROECK AND P . DELTENRE, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE BELGIAN EMBASSY, RESIDENCE CHAMPAGNE, 4 RUE DES GIRONDINS,

DEFENDANT,

APPLICATION FOR A DECLARATION THAT, BY ADOPTING VARIOUS PROVISIONS OF THE LAW OF 21 JUNE 1985 ON EDUCATION ( MONITEUR BELGE OF 6 JULY 1985 ), THE KINGDOM OF BELGIUM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLES 5 AND 7 OF THE EEC TREATY,

THE COURT

COMPOSED OF : LORD MACKENZIE STUART, PRESIDENT, G . BOSCO, O . DUE AND J.C . MOITINHO DE ALMEIDA ( PRESIDENTS OF CHAMBERS ), T . KOOPMANS, U . EVERLING, K . BAHLMANN, Y . GALMOT, C . KAKOURIS, R . JOLIET AND F . SCHOCKWEILER, JUDGES,

ADVOCATE GENERAL : SIR GORDON SLYNN

REGISTRAR : D . LOUTERMAN, ADMINISTRATOR,

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 24 MARCH 1987,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 17 SEPTEMBER 1987,

GIVES THE FOLLOWING

JUDGMENT

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 2 OCTOBER 1985 THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT THE KINGDOM OF BELGIUM HAS FAILED TO FULFIL CERTAIN OBLIGATIONS UNDER ARTICLES 5 AND 7 OF THE EEC TREATY .

2 IN PARTICULAR THE COMMISSION COMPLAINS THAT THE KINGDOM OF BELGIUM : ( A ) FAILED, IN ARTICLE 16 ( 1 ) OF THE LAW OF 21 JUNE 1985 ON EDUCATION ( MONITEUR BELGE OF 6 JULY 1985 ), TO EXEMPT NATIONALS OF OTHER MEMBER STATES WHO HAVE COME TO BELGIUM FOR THE SOLE PURPOSE OF STUDYING IN BELGIAN UNIVERSITIES FROM THE SUPPLEMENTARY ENROLMENT FEE ( KNOWN AS THE "MINERVAL "); ( B ) AUTHORIZED THE RECTORS OF UNIVERSITIES, IN ARTICLE 16 ( 2 ) OF THAT LAW, TO REFUSE TO ENROL SUCH STUDENTS; ( C ) MADE IT IMPOSSIBLE IN PRACTICE, IN ARTICLE 59 ( 2 ) OF THAT LAW, FOR NATIONALS OF OTHER MEMBER STATES WHO HAVE COME TO BELGIUM FOR THE SOLE PURPOSE OF FOLLOWING A NON-UNIVERSITY COURSE OF HIGHER EDUCATION, WHETHER TECHNICAL, PROFESSIONAL OR SPECIALIZED SECONDARY TRAINING, TO BENEFIT FROM THE EXEMPTION FROM THE MINERVAL, OWING TO THE FACT THAT SUCH EXEMPTION IS LINKED TO THE GRANT OF THE RIGHT OF RESIDENCE, AND MADE GRANT OF EXEMPTION FROM THAT MINERVAL TO STUDENTS FROM OTHER MEMBER STATES SUBJECT TO THE ADDITIONAL REQUIREMENT OF PROOF THAT THEY HAVE ADEQUATE MEANS OF SUPPORT, AS FOLLOWS FROM ARTICLE 59 ( 2 ) OF THAT LAW; AND ( D ) RESTRICTED THE POSSIBILITY OF OBTAINING REIMBURSEMENT OF MINERVALS WRONGLY PAID UNDER COMMUNITY LAW SOLELY TO COMMUNITY NATIONALS WHO HAD BROUGHT LEGAL PROCEEDINGS BEFORE 13 FEBRUARY 1985, THE DATE ON WHICH THE JUDGMENT IN CASE 193/83 GRAVIER V CITY OF LIEGE (( 1985 )) ECR 606 WAS DELIVERED .

3 IT IS APPARENT FROM THE DOCUMENTS BEFORE THE COURT THAT ACCORDING TO THE BELGIAN LEGISLATION IN FORCE ON UNIVERSITY EDUCATION, THE ORDINARY RUNNING COSTS OF UNIVERSITIES ARE COVERED BY THE BELGIAN STATE ON THE BASIS OF THE NUMBER OF STUDENTS OF BELGIAN OR LUXEMBOURG NATIONALITY, A SMALL NUMBER OF LIMITED GROUPS OF FOREIGN STUDENTS, AND FOREIGN STUDENTS IN GENERAL, BUT THE NUMBER OF THE LATTER MAY NOT EXCEED 2% OF THE TOTAL NUMBER OF BELGIAN STUDENTS DULY TAKEN INTO CONSIDERATION IN THE PRECEDING ACADEMIC YEAR IN A FIELD OF STUDY . FOREIGN STUDENTS NOT FALLING IN ANY OF THE CATEGORIES MENTIONED ABOVE CONTRIBUTE TO THE ORDINARY RUNNING COSTS OF THE UNIVERSITIES . CONSEQUENTLY, STUDENTS FROM OTHER MEMBER STATES COMING TO BELGIUM FOR THE SOLE PURPOSE OF FOLLOWING UNIVERSITY STUDIES THERE CONTINUE, AS A RULE, TO BE SUBJECT TO THE MINERVAL . THAT LEGISLATION FURTHER PROVIDES THAT THE RECTOR OF THE UNIVERSITY MAY REFUSE TO ENROL STUDENTS WHO ARE NOT ELIGIBLE FOR FINANCING .

4 IN THE CASE OF NON-UNIVERSITY EDUCATION, A MINERVAL IS CHARGED FOR FOREIGN STUDENTS WHOSE PARENTS OR LEGAL GUARDIANS ARE NOT OF BELGIAN NATIONALITY AND ARE NOT RESIDENT IN BELGIUM UNLESS THE STUDENT HAS BEEN GIVEN A RESIDENCE PERMIT FOR MORE THAN THREE MONTHS OR IS AUTHORIZED TO SETTLE IN BELGIUM . IF A FOREIGN STUDENT APPLIES FOR A PERMIT TO RESIDE FOR MORE THAN THREE MONTHS IN BELGIUM HE MUST PRODUCE, INTER ALIA, A CERTIFICATE OF REGISTRATION IN AN EDUCATIONAL ESTABLISHMENT AND EVIDENCE OF ADEQUATE MEANS OF SUPPORT .

5 THE BELGIAN LEGISLATION FURTHER PROVIDES THAT MINERVALS CHARGED BETWEEN 1 SEPTEMBER 1976 AND 31 DECEMBER 1984 WILL IN NO EVENT BE REIMBURSED EXCEPT FOR THOSE CHARGED TO STUDENTS WHO ARE NATIONALS OF A MEMBER STATE OF THE COMMUNITY AND HAVE TAKEN A VOCATIONAL TRAINING COURSE, WHO MUST BE REIMBURSED ON THE BASIS OF JUDICIAL DECISIONS MADE IN PROCEEDINGS FOR REPAYMENT BROUGHT BEFORE THE COURTS BEFORE 13 FEBRUARY 1985, THE DATE ON WHICH THE AFORESAID JUDGMENT IN GRAVIER WAS DELIVERED .

6 THE COMMISSION CONSIDERED THAT THE BELGIAN LEGISLATION REFERRED TO ABOVE CONSTITUTED DISCRIMINATION ON GROUNDS OF NATIONALITY, PROHIBITED BY ARTICLE 7 OF THE EEC TREATY, AND WAS INCOMPATIBLE WITH THE JUDGMENTS OF THE COURT OF 13 JULY 1983 IN CASE 152/82 FORCHERI V BELGIAN STATE (( 1983 )) ECR 2323 AND OF 13 FEBRUARY 1985 IN GRAVIER, CITED ABOVE . IT MADE ITS POSITION CLEAR AT AN INFORMAL MEETING WITH THE COMPETENT OFFICIALS IN THE BELGIAN MINISTRIES OF NATIONAL EDUCATION ON 25 JUNE 1985 . HOWEVER, IT IS CLEAR FROM THE MINUTES OF THE MEETING OF THE EDUCATION COMMITTEE - ESTABLISHED BY A RESOLUTION OF THE COUNCIL AND THE MINISTERS FOR EDUCATION MEETING IN THE COUNCIL OF 9 FEBRUARY 1976 LAYING DOWN AN ACTION PROGRAMME FOR EDUCATION ( OFFICIAL JOURNAL 1976, C 38, P . 1 ) - OF 27 AND 28 JUNE 1985 THAT THE COMMISSION REPRESENTATIVE STATED THAT THE COMMISSION WAS STILL CONSIDERING THE EFFECTS OF THE JUDGMENTS OF THE COURT IN THIS SPHERE .

7 SINCE THE COMMISSION CONSIDERED THAT THE LEGISLATION IN QUESTION WAS CONTRARY TO COMMUNITY LAW, IT REQUESTED THE COMPETENT BELGIAN AUTHORITIES BY LETTER OF 17 JULY 1985, PURSUANT TO ARTICLE 169 OF THE EEC TREATY, "IN VIEW OF THE FACT THAT THE NEW ACADEMIC YEAR IS ABOUT TO BEGIN ... TO SUBMIT TO IT THEIR OBSERVATIONS ON THE QUESTIONS RAISED WITHIN 8 DAYS FROM RECEIPT OF THE PRESENT LETTER ". THE KINGDOM OF BELGIUM DID NOT REPLY TO THAT LETTER WITHIN THE PERIOD ALLOWED BUT, BY TELEX MESSAGE OF 2 AUGUST 1985, IT REQUESTED AN EXTENSION OF THE TIME ALLOWED FOR ITS REPLY . THE COMMISSION DID NOT REPLY TO THAT TELEX MESSAGE . ON 20 AUGUST 1985 THE COMPETENT BELGIAN AUTHORITIES SENT MINISTERIAL CIRCULARS TO THE UNIVERSITIES INSTRUCTING THEM TO APPLY THE RULES IN QUESTION . ON 23 AUGUST 1985 THE COMMISSION DELIVERED A REASONED OPINION IN WHICH IT STATED THAT THE RULES IN QUESTION WERE INCOMPATIBLE WITH ARTICLES 5 AND 7 OF THE EEC TREATY . PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 169 OF THE EEC TREATY, THE COMMISSION REQUESTED THE KINGDOM OF BELGIUM TO TAKE THE MEASURES NEEDED TO COMPLY WITH THE REASONED OPINION WITHIN 15 DAYS .

8 NO ACTION WAS TAKEN IN RESPONSE TO THE REASONED OPINION AND ON 2 OCTOBER 1985 THE COMMISSION BROUGHT THIS ACTION BEFORE THE COURT .

9 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE RELEVANT LEGAL PROVISIONS, THE FACTS OF THE CASE, THE ARGUMENTS OF THE PARTIES AND THE COMMISSION' S RESPONSE TO THE COURT' S INQUIRY AS TO THE PRECISE REASONS WHY THE COMMISSION DID NOT EXTEND THE ABOVEMENTIONED PERIODS ALLOWED TO THE KINGDOM OF BELGIUM . THOSE MATTERS ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

ADMISSIBILITY OF THE APPLICATION

10 THE KINGDOM OF BELGIUM HAS RAISED AN OBJECTION OF INADMISSIBILITY AGAINST THE COMMISSION' S APPLICATION COMPLAINING THAT IN THE PRE-LITIGATION PROCEDURE PRECEDING THE APPLICATION TO THE COURT THE COMMISSION DID NOT COMPLY WITH THE BASIC PROCEDURAL SAFEGUARDS LAID DOWN IN ARTICLE 169 OF THE EEC TREATY . IT CONSIDERS THAT THE PERIOD OF EIGHT CLEAR DAYS FOR REPLYING TO THE LETTER OF FORMAL NOTICE AND THE PERIOD OF 15 DAYS TO COMPLY WITH THE REASONED OPINION WERE TOO SHORT AND WERE NOT PERMISSIBLE IN VIEW OF THE COMPLEXITY OF THE MATTER AND THE SCOPE OF THE AMENDMENTS THAT HAD TO BE MADE TO THE RELEVANT RULES IN ORDER TO BRING THEM INTO LINE WITH COMMUNITY LAW .

11 THE COMMISSION AGREES THAT THE PERIODS ALLOWED WERE SHORT BUT IT POINTS OUT THAT THEY WERE NOT ABSOLUTE TIME-LIMITS AND THAT REPLIES SUPPLIED AFTER THE EXPIRY OF THOSE PERIODS WOULD HAVE BEEN TAKEN INTO ACCOUNT . SHORT PERIODS WERE FIXED BECAUSE OF THE IMPENDING START OF THE 1985 ACADEMIC YEAR AND BECAUSE THE KINGDOM OF BELGIUM HAD BEEN AWARE OF THE COMMISSION' S POSITION SINCE 25 JUNE 1985 AT THE LATEST . IMMEDIATELY BEFORE THE ADOPTION OF THE BELGIAN LAW IN QUESTION THE COMMISSION WAS CONCERNED BY THE CONDITIONS WHICH WERE GOING TO GOVERN THE ACCESS OF COMMUNITY STUDENTS TO BELGIAN VOCATIONAL TRAINING ESTABLISHMENTS AT THE START OF THE ACADEMIC YEAR AND WHICH WERE CONTRARY TO COMMUNITY LAW . FROM THE OUTSET, THE COMMISSION WANTED THE PRE-LITIGATION PROCEDURE TO BE CONDUCTED IN SUCH A WAY THAT THE MATTER COULD BE BROUGHT BEFORE THE COURT IN TIME FOR IT TO ORDER INTERIM MEASURES SAFEGUARDING THE RIGHTS OF STUDENTS BEFORE THE REGISTRATION PROCEDURES WERE CLOSED .

12 IN THE ALTERNATIVE, THE COMMISSION POINTS OUT THAT THE KINGDOM OF BELGIUM IN FACT HAD MORE THAN A MONTH TO REPLY TO THE LETTER OF FORMAL NOTICE BEFORE THE REASONED OPINION WAS SENT . FURTHERMORE, OVER ONE MONTH ELAPSED BEFORE THE APPLICATION AND REQUEST FOR INTERIM MEASURES WERE LODGED WITH THE COURT .

13 IT SHOULD BE POINTED OUT FIRST THAT THE PURPOSE OF THE PRE-LITIGATION PROCEDURE IS TO GIVE THE MEMBER STATE CONCERNED AN OPPORTUNITY, ON THE ONE HAND, TO COMPLY WITH ITS OBLIGATIONS UNDER COMMUNITY LAW AND, ON THE OTHER, TO AVAIL ITSELF OF ITS RIGHT TO DEFEND ITSELF AGAINST THE COMPLAINTS MADE BY THE COMMISSION .

14 IN VIEW OF THAT DUAL PURPOSE THE COMMISSION MUST ALLOW MEMBER STATES A REASONABLE PERIOD TO REPLY TO THE LETTER OF FORMAL NOTICE AND TO COMPLY WITH A REASONED OPINION, OR, WHERE APPROPRIATE, TO PREPARE THEIR DEFENCE . IN ORDER TO DETERMINE WHETHER THE PERIOD ALLOWED IS REASONABLE, ACCOUNT MUST BE TAKEN OF ALL THE CIRCUMSTANCES OF THE CASE . THUS, VERY SHORT PERIODS MAY BE JUSTIFIED IN PARTICULAR CIRCUMSTANCES, ESPECIALLY WHERE THERE IS AN URGENT NEED TO REMEDY A BREACH OR WHERE THE MEMBER STATE CONCERNED IS FULLY AWARE OF THE COMMISSION' S VIEWS LONG BEFORE THE PROCEDURE STARTS .

15 IT IS THEREFORE NECESSARY TO EXAMINE WHETHER THE SHORTNESS OF THE PERIODS SET BY THE COMMISSION WAS JUSTIFIED IN VIEW OF THE PARTICULAR CIRCUMSTANCES OF THIS CASE . FOR THAT PURPOSE THE FIRST THREE COMPLAINTS REGARDING NON-DISCRIMINATORY ACCESS TO HIGHER EDUCATION MUST BE CONSIDERED SEPARATELY FROM THE FOURTH COMPLAINT RELATING TO THE RESTRICTION ON THE POSSIBILITY OF OBTAINING REIMBURSEMENT OF MINERVALS CHARGED IN BREACH OF COMMUNITY LAW SOLELY TO THOSE PERSONS WHO HAD BROUGHT JUDICIAL PROCEEDINGS BEFORE 13 FEBRUARY 1985 .

16 AS FAR AS THE FIRST THREE COMPLAINTS ARE CONCERNED, THE IMMINENT START OF THE 1985 ACADEMIC YEAR MAY INDEED BE REGARDED AS A SPECIAL CIRCUMSTANCE JUSTIFYING A SHORT TIME-LIMIT . HOWEVER, THE COMMISSION COULD HAVE TAKEN ACTION LONG BEFORE THE START OF THE ACADEMIC YEAR BECAUSE THE MAJOR PART OF THE BELGIAN PROVISIONS WERE ALREADY PART OF ITS LEGISLATION BEFORE THE LAW OF 21 JUNE 1985 . THEY WERE THEREFORE KNOWN TO THE COMMISSION AT THE LATEST WHEN THE JUDGMENT OF 13 FEBRUARY 1985 WAS DELIVERED, WHICH WAS SIX MONTHS BEFORE THE START OF THE 1985 ACADEMIC YEAR . FURTHERMORE, IT SHOULD BE NOTED THAT AT THE TIME THE COMMISSION HAD NOT MADE ANY CRITICISM OF THE MINERVAL AND HAD EVEN GIVEN THE IMPRESSION, PRIOR TO THE ENTRY INTO FORCE OF THE LAW IN QUESTION, THAT IT ACCEPTED THAT THE MINERVAL WAS COMPATIBLE WITH COMMUNITY LAW . IN THOSE CIRCUMSTANCES THE COMMISSION CANNOT RELY ON URGENCY WHICH IT ITSELF CREATED BY FAILING TO TAKE ACTION EARLIER .

17 AS FOR THE COMMISSION' S ALTERNATIVE ARGUMENT THAT THE TIME-LIMITS LAID DOWN WERE NOT ABSOLUTE AND THAT CONSEQUENTLY REPLIES GIVEN AFTER THEIR EXPIRY WOULD HAVE BEEN ACCEPTED, IT SHOULD BE REMARKED THAT THAT FACTOR IS NOT RELEVANT . A MEMBER STATE TO WHICH A MEASURE SUBJECT TO A TIME-LIMIT IS ADDRESSED CANNOT KNOW IN ADVANCE WHETHER, AND TO WHAT EXTENT, THE COMMISSION WILL IF NECESSARY GRANT IT AN EXTENSION OF THAT TIME-LIMIT . IN THIS CASE, MOREOVER, THE COMMISSION DID NOT REPLY TO THE KINGDOM OF BELGIUM' S REQUEST FOR AN EXTENSION OF TIME .

18 AS REGARDS THE QUESTION WHETHER THE KINGDOM OF BELGIUM WAS AWARE SUFFICIENTLY IN ADVANCE OF THE COMMISSION' S VIEWS, IT IS COMMON GROUND THAT ALTHOUGH THE COMMISSION HAD EXPRESSED ITS VIEWS TO THE COMPETENT OFFICIALS OF THE BELGIAN MINISTRIES OF NATIONAL EDUCATION ON 25 JUNE 1985, AT A MEETING OF THE EDUCATION COMMITTEE OF 27 AND 28 JUNE 1985 IT STATED THAT IT WAS STILL CONSIDERING THE EFFECTS OF THE JUDGMENTS OF THE COURT IN THE FIELD OF UNIVERSITY EDUCATION . IT FOLLOWS THAT THE KINGDOM OF BELGIUM WAS NOT FULLY INFORMED OF THE DEFINITIVE VIEWS OF THE COMMISSION BEFORE THESE PROCEEDINGS WERE BROUGHT AGAINST IT .

19 THE FOURTH COMPLAINT RELATES TO ACTIONS WHICH CONCERN THE PAST AND ARE NOT THEREFORE IN ANY WAY URGENT .

20 IN THE LIGHT OF THE FOREGOING IT SHOULD BE HELD THAT THERE WAS NO JUSTIFICATION FOR THE SHORTNESS OF THE TIME-LIMITS FIXED BY THE COMMISSION . IT FOLLOWS THAT ONE OF THE CONDITIONS FOR THE ADMISSIBILITY OF AN ACTION PURSUANT TO ARTICLE 169 OF THE EEC TREATY, NAMELY THAT THE PRE-LITIGATION PROCEDURE WAS VALIDLY CARRIED OUT, IS NOT SATISFIED IN THIS CASE . THE ACTION MUST THEREFORE BE DISMISSED AS INADMISSIBLE .

COSTS

21 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE COMMISSION HAS FAILED IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS, INCLUDING THOSE OF THE APPLICATION FOR INTERIM MEASURES .

ON THOSE GROUNDS,

THE COURT

HEREBY :

( 1 ) DISMISSES THE APPLICATION AS INADMISSIBLE;

( 2 ) ORDERS THE COMMISSION TO BEAR THE COSTS, INCLUDING THOSE OF THE APPLICATION FOR INTERIM MEASURES .