61971J0042

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MEASURES ADOPTED BY AN INSTITUTION - ACT OF THE NATURE OF A REGULATION - APPLICATIONS BY INDIVIDUALS - CATEGORY OF PERSONS VIEWED IN THE ABSTRACT AND IN ITS ENTIRETY - INADMISSIBILITY OF THE APPLICATION

( EEC TREATY, ARTICLE 173 )

THE CONDITIONS TO WHICH, UNDER ARTICLE 173 ( 2 ), PROCEEDINGS BY INDIVIDUALS AGAINST THE ACTS OF INSTITUTIONS ARE SUBJECT ARE NOT FULFILLED IF A NATURAL OR LEGAL PERSON IS AFFECTED BY SUCH AN ACT BY REASON OF HIS BELONGING TO A CATEGORY VIEWED IN THE ABSTRACT AND IN ITS ENTIRETY AND NOT AS THE PERSON TO WHOM AN ACT OF DIRECT AND INDIVIDUAL CONCERN TO HIM IS ADDRESSED .

IN CASE 42/71

NORDGETREIDE GMBH AND CO . KG, WHOSE REGISTERED OFFICE IS AT OBERSICKETE ( FEDERAL REPUBLIC OF GERMANY ) REPRESENTED BY ERICH SIEBERT AND HORST G . BENS, OF THE BRUNSWICK 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, PETER GILSDORF ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, EMILE REUTER, 4 BOULEVARD ROYAL,

DEFENDANT,

APPLICATION, AT THE PRESENT STAGE OF THE PROCEEDINGS, FOR A DECLARATION OF THE ADMISSIBILITY OF THE ACTION IN WHICH THE APPLICANT COMPANY CLAIMS THAT GOODS REFERRED TO UNDER HEADING 11.02 OF THE COMMON CUSTOMS TARIFF, IN PARTICULAR FLAKED BARLEY ( SUBHEADING 11.02 E I ( B ) 1 ) AND CERTAIN CATEGORIES OF CEREAL GROATS AND MAIZE MEAL ( SUBHEADING 11.02 A V ( A ) 1 ) SHALL BE INCLUDED IN THE LIST OF PRODUCTS CONTAINED IN ANNEX I TO REGULATION NO 1014/71 OF THE COMMISSION OF 17 MAY 1971 FIXING THE COMPENSATORY AMOUNTS PROVIDED FOR BY REGULATION NO 974/71 ON CERTAIN MEASURES OF CONJUNCTURAL POLICY TO BE TAKEN IN AGRICULTURE FOLLOWING THE TEMPORARY WIDENING OF THE MARGINS OF FLUCTUATION FOR THE CURRENCIES OF CERTAIN MEMBER STATES AND TO REGULATION NO 1272/71 OF THE COMMISSION OF 17 JUNE 1971 ALTERING THE SAID COMPENSATORY AMOUNTS,

1 BY APPLICATION OF 21 JULY 1971, THE APPLICANT HAS, UNDER ARTICLE 173 OF THE EEC TREATY, CLAIMED ANNULMENT OF THE COMMUNICATION OF 16 JUNE 1971 IN WHICH THE COMMISSION REFUSED TO ACCEDE TO ITS REQUEST, SUBMITTED ON 26 MAY 1971 AND CONFIRMED ON 4 JUNE FOLLOWING, THAT GOODS REFERRED TO UNDER HEADING 11.02 OF THE COMMON CUSTOMS TARRIF, IN PARTICULAR FLAKED BARLEY ( SUBHEADING 11.02 E I ( B ) 1 ) AND CERTAIN CATEGORIES OF MAIZE GROATS AND MEAL ( SUBHEADING 11.02 A V ( A ) 1 ), SHOULD BE INCLUDED IN THE LIST OF PRODUCTS CONTAINED IN ANNEX I TO REGULATION NO 1014/71 OF THE COMMISSION OF 17 MAY 1971 FIXING THE COMPENSATORY AMOUNTS PROVIDED FOR BY REGULATION NO 974/71 OF THE COUNCIL ON CERTAIN MEASURES OF CONJUNCTURAL POLICY TO BE TAKEN IN AGRICULTURE FOLLOWING THE TEMPORARY WIDENING OF THE MARGINS OF FLUCTUATION FOR THE CURRENCIES OF CERTAIN MEMBER STATES ( JO L 110, 1971, P . 10 ) AND IN ANNEX I TO REGULATION NO 1272/71 OF THE COMMISSION OF 17 JUNE 1971 ALTERING THE SAID COMPENSATORY AMOUNTS ( JO L 133, 1971, P . 1 ).

2 IN THE ALTERNATIVE, THE APPLICANT CLAIMS UNDER ARTICLE 175 OF THE EEC TREATY THAT THE COURT SHOULD FIND THAT THE COMMISSION HAS, IN BREACH OF THE TREATY, FAILED TO GIVE A RULING ON ITS REQUEST .

3 SINCE THE COMMISSION REQUESTED THAT ARTICLE 91 OF THE RULES OF PROCEDURE SHOULD BE APPLIED, THE COURT DECIDED TO RULE ON THE ADMISSIBILITY OF THE ACTION WITHOUT GOING INTO THE SUBSTANCE .

4 SINCE THE COMMISSION, WITHIN THE TIME-LIMIT FIXED BY ARTICLE 175, DEFINED ITS POSITION IN ITS COMMUNICATION OF 16 JUNE 1971, THE CONDITIONS FOR APPLICATION OF THAT ARTICLE ARE NOT SATISFIED; THE ADMISSIBILITY OF THE ACTION MUST, IN CONSEQUENCE, BE CONSIDERED IN THE LIGHT OF ARTICLE 173 ALONE .

5 SINCE THE DEFINITION BY THE COMMISSION OF ITS POSITION AMOUNTS TO A REJECTION IT MUST BE APPRAISED IN THE LIGHT OF THE OBJECT OF THE REQUEST TO WHICH IT CONSTITUTED A REPLY . THE OBJECT OF THE REQUEST WAS THE INCLUSION IN THE ANNEX TO REGULATIONS NOS 1014/71 AND 1272/71 OF THE PRODUCTS OF CONCERN TO THE APPLICANT; IT ACCORDINGLY SOUGHT AMENDMENT OF A REGULATION BY AN ACT WHICH WOULD ITSELF HAVE TAKEN THE FORM OF A REGULATION . IN FACT, INCLUSION IN THE ANNEX TO THE REGULATIONS CONCERNED OF THE PRODUCTS REFERRED TO BY THE APPLICANT WOULD HAVE HAD THE EFFECT OF APPLYING THE SYSTEM OF COMPENSATORY AMOUNTS TO ALL EXPORTS AND, FURTHERMORE, TO ALL IMPORTS OF THE PRODUCTS INVOLVED TO THE ADVANTAGE OR THE DISADVANTAGE, AS THE CASE MAY BE, OF ANY AND EVERY EXPORTER OR IMPORTER . SUCH A PROVISION WOULD HAVE AFFECTED THE APPLICANT ONLY IN SO FAR AS IT BELONGS TO A CATEGORY VIEWED IN THE ABSTRACT AND IN ITS ENTIRETY AND NOT AS THE PERSON TO WHOM AN ACT OF DIRECT AND INDIVIDUAL CONCERN TO HIM WAS ADDRESSED . IN CONSEQUENCE THERE IS A WANT OF THE CONDITIONS TO WHICH UNDER ARTICLE 173 ( 2 ) PROCEEDINGS BY INDIVIDUALS AGAINST THE ACTS OF THE INSTITUTIONS ARE SUBJECT .

6 THE APPLICATION MUST THEREFORE BE DISMISSED AS INADMISSIBLE .

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

THE APPLICATION HAS BEEN DECLARED INADMISSIBLE .

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE;

2 . ORDERS THE APPLICANT TO BEAR THE COSTS OF THE ACTION .