(1)

to recognize their right to compensation for the damage caused them by the application of the regulations which, in their view, were unlawful,

(2)

as a ‘test case’ as it were, to annul an import certificate issued by the French authorities and a decision taken by the same authorities settling their charges inasmuch as these documents were drawn up on the basis of the contested Community regulations.

(1)

a declaration that the Commission incurred liability in respect of the applicants under the conditions laid down in the second paragraph of Article 215 on account of the damage caused them by the contested regulations which they consider as unlawful;

(2)

the annulment of the decision resulting from the Commission's letter of 26 February 1971 and of the decisions rejecting their complaints implied, according to the applicants, by the absence for more than two months of a reply from the Commission to the complaints which they had lodged before it ;

(3)

annulment of the import certificate and of the discharge decision, which have already been contested before the Commission.

—

first, with regard to the conclusions seeking a declaration by the Court that the Community incurred pecuniary liability in respect of the applicants ;

—

secondly, with regard to the other conclusions contained in the applications.

1.

The first is that, in such a case, an application for damages based on the illegality of a regulation is in fact a ‘disguised’ application for annulment, designed to circumvent the provisions of Article 173, which strictly limit the opportunity for individuals to lodge applications for the annulment of regulations.

The Commission's contention is that, in such a case, an application for damages has the same effect as an application for annulment and that, in consequence, to hold it to be admissible would be contrary to the intention of the authors of the Treaty, as expressed in Article 173, and to the general balance of the provisions relating to applications to the Court.

As Mr Advocate-General Roemer stated before this Court yesterday, there is no doubt that, in certain specific circumstances, an application for damages is inadmissible if its only purpose or effect is to obtain the annulment of a measure which has become definitive because it was not contested within the prescribed period. This occurs, for example, in the field of public administration in the case of an application for damages the object of which is to obtain payment of compensation which has been refused by a decision which has become definitive.

But this is in no way true of the two cases before this Court today.

In fact, what the Commission is asking you to rule is that the authors of Article 173, by restricting the opportunity for individuals to apply for annulment of a regulation, intended by implication but inevitably to prevent this Court from appraising the legality of those regulations on the application of an individual, regardless of the nature of the dispute brought before you.

Given such a wide interpretation, this argument seems to be exaggerated because, if it is correct, it would no longer be at all possible to understand the meaning or the purpose either of Article 184 of the Treaty, which lays down the general principle that an objection to a regulation on grounds of illegality or invalidity can be raised before this Court in any proceedings properly brought before the Court, or even of Article 177, which confers the right and, sometimes, imposes an obligation on the national court to refer to this Court the task of ruling on an objection raised before it on the ground that a Community measure is illegal.

In my view, the intention of the authors of the Treaty is, in fact, more readily discernible by comparing Articles 173 and 174.

The authors of the Treaty were clearly afraid of the possible consequences for the functioning of the Community of the annulment of Community regulations in view of

In order to meet these two dangers they first restricted the conditions in which applications for annulment lodged by individuals are admissible in the second paragraph of Article 173 and secondly, in the second paragraph of Article 174, they empowered this Court to restrict the retroactive effect of its annulments.

On the other hand, the authors of the Treaty did not, in my view, in any way rule out the possibility for individuals to prevent a provision of a regulation from being applied in their particular case and from regulating the extent of their subjective rights.

This is the underlying purpose of both Article 177 and Article 184 of the Treaty. The application for damages resulting from Article 178 in conjunction with Article 215 is in fact an application for a declaration of subjective rights.

Contrary to the contention of the Commission, the effects of that application are not, in cases such as those which this Court must appraise today, the same as those which might be produced by an application for annulment.

First, it brings before the Court only an individual dispute the solution of which has no erga omnes effect.

Secondly, even though the solution of an individual dispute may entail reparation for damage which has already been suffered, the decision of the court in such cases does not nevertheless have, properly speaking, retroactive effect.

It does not appear, therefore, that the Commission's first argument should be upheld.

2.

The Commission has also advanced a second argument, on which it laid special emphasis at the hearing, probably because of the effects of the judgment of this Court of 28 April 1971 in the Lü tticke case; this second argument is based on the provisions of Article 177 of the Treaty.

It can, in my view, be summarized as follows: the applicants have available a legal remedy for having a Community regulation declared illegal, as they claim it is: that means is to plead that illegality before their national court in an action against individual decisions of application. This Court will then have to appraise the validity of the Community regulation under the conditions laid down in Article 177 after a reference to it by order of the national court and any application for damages brought before you might then, and only then, be admissible.

In my opinion, this argument should be dismissed for several reasons :

I do not think this Court can adopt that argument.

1.

The conclusions for annulment of the import certificate and of the decision discharging that certificate seem to be inadmissible.

This Court is not competent to annul a measure adopted by a national administration even if that measure is adopted in implementation of Community provisions. On the other hand, the conclusions directed against the letter in which the Commission refused to annul that import certificate and that decision to discharge it and against the failure of the Commission to reply to the requests submitted to the same effect by the applicants are, in my view, admissible.

I take the view that, even if the Commission, as it maintains, does not have jurisdiction to take the decisions asked of it, the Court on the other hand, has jurisdiction to appraise the validity of the view-point adopted by the Commission.

2.

As regards the conclusions directed against the Commission's letter refusing the request for compensation I have some doubts as to their admissibility.

It may, in fact, be open to question whether the applicants have an interest in seeking the annulment of that refusal if, as I am suggesting, this Court rules in favour of the admissibility of the conclusions in which they request this Court directly to find the Community. There are two reasons for this:

If an application opposing a decision refusing compensation were accepted, would not this mean, in such circumstances, that the application to the Court would, improperly, become subject to the period of two months provided for under Article 173? My considered view is that none of these objections invalidates the application.

3.

There now remain the conclusions directed against what the applicants call the implied decision by the Commission rejecting their application for compensation.

These conclusions must first of all be redesignated.

The concept of an implied decision of refusal is provided for in the third paragraph of Article 35 of the ECSC Treaty but was not re-enacted in the EEC Treaty. Article 175 of the latter refers, in fact, to a different concept, that of failure to act.

The practical outcome is quite often the same but the two concepts are different, as this Court recalled only yesterday in its judgment in the Komponistenverband case. What has been referred to the Court under Article 175 of the EEC Treaty is the absence of a decision and not, as under Article 35 of the ECSC Treaty, an implied decision of refusal.

The conclusions on this point in the two applications must therefore, it seems to me, be interpreted as conclusions seeking a declaration that the Commission has failed to make its attitude known on applications for compensation.

In view of the indivisibility of Articles 173 and 175 of the Treaty, I take the view that these conclusions based on failure to take a decision are admissible for the same reasons as those which made me suggest earlier that this Court acknowledge the admissibility of the conclusions for the annulment of the decisions refusing compensation.

—

This Court should declare that all the conclusions in the applications are admissible, with the exception of those for annulment of the import certificate and of the decision discharging the said certificate;

—

Costs should be reserved.