61971J0008

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PROCEDURE - FAILURE TO ACT ON THE PART OF THE EXECUTIVE - CONCEPT

( EEC TREATY, ARTICLE 175 )

ARTICLE 175 OF THE EEC TREATY REFERS TO FAILURE TO ACT IN THE SENSE OF FAILURE TO TAKE A DECISION OR TO DEFINE A POSITION, AND NOT THE ADOPTION OF A MEASURE DIFFERENT FROM THAT DESIRED OR CONSIDERED NECESSARY BY THE PERSONS CONCERNED .

IN CASE 8/71

DEUTSCHER KOMPONISTENVERBAND E.V ., REPRESENTED BY ITS PRESIDENTS, PROFESSOR WERNER EGK AND RAIMUND ROSENBERGER, ASSISTED BY REINHOLD KREILE, ADVOCATE, OF THE MUNICH BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 34B RUE PHILIPPE-II, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, JOCHEN THIESING, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF EMILE REUTER, LEGAL ADVISER TO THE COMMISSION, 4 BOULEVARD ROYAL, DEFENDANT,

APPLICATION TO THE COURT UNDER ARTICLE 175 OF THE EEC TREATY ON THE GROUND OF FAILURE TO ACT, WITH A VIEW TO OBTAINING A RULING THAT THE COMMISSION HAS FAILED IN ITS DUTY TO HEAR THE DEUTSCHER KOMPONISTENVERBAND E.V . IN ITS CAPACITY AS A LEGAL PERSON HAVING A SUFFICIENT INTEREST IN THE PROCEEDINGS INITIATED UNDER ARTICLES 85 AND 86 OF THE EEC TREATY AGAINST THE GESELLSCHAFT FUER MUSIKALISCHE AUFFUEHRUNGS - UND MECHANISCHE VERVIELFAELTIGUNGSRECHTE ( GEMA ),

1 ON 11 MARCH 1971 THE APPLICANT INITIATED PROCEEDINGS UNDER ARTICLE 175 OF THE TREATY WITH THE OBJECT OF OBTAINING A DECLARATION THAT THE COMMISSION HAD FAILED IN ITS OBLIGATION TO HEAR IT IN ITS CAPACITY AS A LEGAL PERSON SHOWING A SUFFICIENT INTEREST IN THE PROCEDURE COMMENCED UNDER ARTICLES 85 AND 86 OF THE TREATY AGAINST THE GESELLSCHAFT FUER MUSIKALISCHE AUFFUEHRUNGS - UND MECHANISCHE VERVIELFAELTIGUNGSRECHTE ( GEMA ).

BY A STATEMENT OF 23 APRIL 1971 THE DEFENDANT, UNDER ARTICLE 91 OF THE RULES OF PROCEDURE, RAISED AN OBJECTION OF INADMISSIBILITY ON THE BASIS OF ARTICLE 175 .

2 THE THIRD PARAGRAPH OF ARTICLE 175 PROVIDES THAT ANY NATURAL OR LEGAL PERSON MAY, UNDER THE CONDITIONS LAID DOWN IN THE PRECEDING PARAGRAPHS OF THE SAME ARTICLE, COMPLAIN TO THE COURT OF JUSTICE THAT AN INSTITUTION OF THE COMMUNITY HAS FALED TO ADDRESS TO THAT PERSON ANY ACT OTHER THAN A RECOMMENDATION OR AN OPINION .

IT IS CLEAR FROM THE CONTEXT, ESPECIALLY FROM THE FIRST PARAGRAPH, THAT BY ITS USE OF THE PHRASE " HAS FAILED TO ADDRESS TO THAT PERSON ANY ACT ", THE ARTICLE REFERS TO FAILURE TO ACT IN THE SENSE OF FAILURE TO TAKE A DECISION OR TO DEFINE A POSITION, AND NOT THE ADOPTION OF A MEASURE DIFFERENT FROM THAT DESIRED OR CONSIDERED NECESSARY BY THE PERSONS CONCERNED .

3 BY A TELEX MESSAGE OF 13 NOVEMBER 1970 THE APPLICANT ASKED TO BE HEARD PURSUANT TO ARTICLE 19 ( 2 ) OF REGULATION NO 17, READ TOGETHER WITH ARTICLE 5 OF REGULATION NO 99/63, IN THE VARIOUS PROCEDURES PENDING AGAINST GEMA .

IN A LETTER OF 17 NOVEMBER 1970 IT RECEIVED THE REPLY THAT, WITHOUT PREJUDICE TO THE QUESTION WHETHER IT WAS A PERSON HAVING A SUFFICIENT INTEREST WITHIN THE MEANING OF THE PROVISIONS CITED, THE COMMISSION WAS GIVING IT THE OPPORTUNITY OF SUBMITTING ITS WRITTEN OBSERVATIONS WITHIN A PERIOD OF ONE MONTH; THAT PERIOD WAS EXTENDED ON TWO OCCASIONS .

THUS THE COMMISSION ACTED UNDER ARTICLE 5 OF REGULATION NO 99/63 ON THE SUBJECT OF THE HEARINGS PROVIDED FOR IN ARTICLE 19 OF REGULATION NO 17 .

IT FOLLOWS FROM THIS THAT IN THE PRESENT CASE THE COMMISSION HAS NOT REFRAINED FROM ACTING WHEN CALLED UPON BY THE APPLICANT TO DO SO .

CONSEQUENTLY, THE CONDITIONS LAID DOWN BY ARTICLE 175 ARE LACKING IN THE PRESENT CASE .

4 THE APPLICATION MUST THEREFORE BE DISMISSED AS INADMISSIBLE .

5 UNDER ARTICLE 69/(2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . THE APPLICATION HAS BEEN DECLARED TO BE INADMISSIBLE AND THE APPLICANT MUST THEREFORE BE ORDERED TO PAY THE COSTS OF THE PROCEEDINGS .

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE;

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