61983J0222

1 . APPLICATION FOR A DECLARATION OF NULLITY - APPLICATION IN RESPECT OF A MEASURE RELATING SIMULTANEOUSLY AND INDIVISIBLY TO THE SPHERES OF MORE THAN ONE TREATY - ADMISSIBILITY WITH REGARD TO ONE OF THOSE TREATIES - SUFFICIENT REQUIREMENT

( ECSC TREATY , ART . 33 , EEC TREATY , ART . 173 , EURATOM TREATY , ART . 146 )

2.APPLICATION FOR A DECLARATION OF NULLITY - APPLICATION BASED ON ARTICLE 33 OF THE ECSC TREATY - APPLICATION MADE BY A LOCAL AUTHORITY - NOT ADMISSIBLE

( ECSC TREATY , ART . 33 )

3.APPLICATION FOR A DECLARATION OF NULLITY - NATURAL AND LEGAL PERSONS - MEASURES OF DIRECT AND INDIVIDUAL CONCERN TO THEM - COMMISSION DECISION ADDRESSED TO A MEMBER STATE AND REQUIRING , IN RETURN FOR THE RIGHT TO GRANT AIDS , THE ADOPTION OF MEASURES TO REDUCE PRODUCTION CAPACITY IN AN INDUSTRIAL SECTOR - DECISION NOT OF DIRECT AND INDIVIDUAL CONCERN TO THE MUNICIPALITIES IN WHICH THE FACTORIES OF THE UNDERTAKING AFFECTED ARE LOCATED

( EEC TREATY , ART . 173 ( 2 )

1 . AN APPLICATION FOR A DECLARATION OF NULLITY IN RESPECT OF A MEASURE ADOPTED BY AN INSTITUTION AND RELATING SIMULTANEOUSLY AND INDIVISIBLY TO THE SPHERES OF MORE THAN ONE TREATY IS ADMISSIBLE TO THE EXTENT TO WHICH THE JURISDICTION OF THE COURT AND THE REMEDIES PROVIDED FOR BY THE RELEVANT PROVISIONS OF ONE OF THE TREATIES ARE APPLICABLE TO THE MEASURE IN QUESTION .

2.SINCE LOCAL AUTHORITIES ARE NOT REFERRED TO IN ARTICLE 33 OF THE ECSC TREATY , WHICH PROVIDES AN EXCLUSIVE ENUMERATION OF THE PERSONS ENTITLED TO BRING AN ACTION FOR A DECLARATION THAT A MEASURE IS VOID , SUCH AUTHORITIES MAY NOT VALIDLY INSTITUTE SUCH PROCEEDINGS .

3.A COMMISSION DECISION ADDRESSED TO A MEMBER STATE AND REQUIRING , IN RETURN FOR THE RIGHT TO GRANT AIDS , THE ADOPTION OF MEASURES TO REDUCE PRODUCTION CAPACITY IN AN INDUSTRIAL SECTOR , WHILST IT LEAVES A MARGIN OF DISCRETION WITH REGARD TO THE MANNER OF ITS IMPLEMENTATION AND IN PARTICULAR WITH REGARD TO THE CHOICE OF THE FACTORIES TO BE CLOSED , CANNOT BE REGARDED AS BEING OF DIRECT AND INDIVIDUAL CONCERN TO THE MUNICIPALITIES WITH WHICH THE UNDERTAKINGS AFFECTED , BY VIRTUE OF THE LOCATION OF THEIR FACTORIES , ARE CONNECTED .

IN CASE 222/83

( 1 ) THE MUNICIPALITY OF DIFFERDANGE ,

( 2 ) THE MUNICIPALITY OF DUDELANGE ,

( 3 ) THE MUNICIPALITY OF PETANGE ,

( 4 ) THE MUNICIPALITY OF ESCH-SUR-ALZETTE ,

( 5 ) THE MUNICIPALITY OF SANEM ,

ALL REPRESENTED BY ANDRE ELVINGER , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY MARIE-JOSE JONCZY , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MANFRED BESCHEL , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

OBJECTION , AT THE PRESENT STAGE OF THE PROCEEDINGS , THAT THE APPLICATION FOR A DECLARATION OF THE NULLITY OF COMMISSION DECISION 83/397/EEC , ECSC OF 29 JUNE 1983 CONCERNING THE AIDS THAT THE LUXEMBOURG GOVERNMENT PROPOSES TO GRANT TO THE STEEL INDUSTRY ( OFFICIAL JOURNAL L 227 , P . 29 ), IS INADMISSIBLE ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 3 OCTOBER 1983 FIVE LUXEMBOURG MUNICIPALITIES , THAT IS TO SAY THE MUNICIPALITIES OF DIFFERDANGE , DUDELANGE , PETANGE , ESCH-SUR-ALZETTE AND SANEM , BROUGHT AN ACTION UNDER ARTICLE 173 OF THE EEC TREATY AND , ' ' TO THE EXTENT NECESSARY ' ' , UNDER ARTICLE 31 OF THE ECSC TREATY FOR A DECLARATION THAT COMMISSION DECISION 83/397/EEC , ECSC OF 29 JUNE 1983 CONCERNING THE AIDS THAT THE LUXEMBOURG GOVERNMENT PROPOSES TO GRANT TO THE STEEL INDUSTRY ( OFFICIAL JOURNAL L 227 , P . 29 ), WAS VOID .

2 BY THAT DECISION ADDRESSED TO THE GRAND DUCHY OF LUXEMBOURG THE COMMISSION DECLARED THAT CERTAIN AIDS WHICH THE LUXEMBOURG GOVERNMENT PROPOSED TO GRANT TO THE STEEL UNDERTAKINGS ARBED AND METALLURGIQUE ET MINIERE DE RODANGE-ATHUS ( MMRA ) WERE COMPATIBLE WITH THE ORDERLY FUNCTIONING OF THE COMMON MARKET PROVIDED THAT THE RECIPIENT UNDERTAKINGS , AS JUSTIFICATION FOR THE AIDS , CARRIED OUT SPECIFIC REDUCTIONS IN THEIR PRODUCTION CAPACITY , WHICH MIGHT ALSO BE CONTRIBUTED BY OTHER UNDERTAKINGS . THE CONTESTED DECISION STATED THAT A LIST OF THE FACTORIES TO BE CLOSED , GIVING THE CLOSURE DATES , WAS TO BE SENT TO THE COMMISSION BY 31 JANUARY 1984 AND THAT THE CLOSURES ENVISAGED WERE TO BE IMPLEMENTED BY 31 DECEMBER 1985 .

3 THE LUXEMBOURG GOVERNMENT MADE USE OF THE AUTHORIZATION CONTAINED IN THE CONTESTED DECISION BY THE LAW OF 1 JULY 1983 CONCERNING MEASURES TO ASSIST THE RESTRUCTURING AND MODERNIZATION OF THE STEEL INDUSTRY AND THE MAINTENANCE OF THE GENERAL COMPETITIVENESS OF THE ECONOMY ( MEMORIAL ( OFFICIAL GAZETTE OF THE GRAND DUCHY OF LUXEMBOURG ) OF 1 . 7 . 1983 , P . 1133 ). THAT LAW INTER ALIA AUTHORIZES THE LUXEMBOURG GOVERNMENT TO GRANT LUXEMBOURG STEEL UNDERTAKINGS AN EXTRAORDINARY AID FOR 1983 AND 1984 , TO UNDERWRITE CONVERTIBLE DEBENTURES OR STOCK AND TO ACQUIRE SHARES IN LUXEMBOURG STEEL UNDERTAKINGS .

4 THE COMMISSION HAS RAISED AN OBJECTION OF INADMISSIBILITY UNDER ARTICLE 91 ( 1 ) OF THE RULES OF PROCEDURE CLAIMING THAT THE ACTION IS NOT ADMISSIBLE EITHER UNDER THE ECSC TREATY OR UNDER THE EEC TREATY . AS THE APPLICANTS ARE NOT UNDERTAKINGS OR ASSOCIATIONS OF UNDERTAKINGS WITHIN THE MEANING OF ARTICLE 48 OF THE ECSC TREATY THE ACTION IS NOT ADMISSIBLE UNDER THAT TREATY . THE POSITION IS THE SAME WITH REGARD TO THE EEC TREATY BECAUSE THE CONTESTED DECISION IS NOT OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANTS WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY .

5 THE APPLICANTS CONTEND THAT THE OBJECTION OF INADMISSIBILITY SHOULD BE DISMISSED . IN THEIR OPINION IT IS SUFFICIENT TO SHOW THAT THE REQUIREMENTS OF THE EEC TREATY ARE SATISFIED . ALTHOUGH THE CONTESTED DECISION IS ADDRESSED TO THE GRAND DUCHY OF LUXEMBOURG IT IS , FROM TWO POINTS OF VIEW , OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANTS WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY . IN THE FIRST PLACE THE REDUCTION OF PRODUCTION CAPACITY AND THE CLOSURE OF FACTORIES LOCATED IN THEIR MUNICIPAL TERRITORY RESULTS , THEY CLAIM , IN A REDUCTION OF THE YIELD FROM LOCAL TAXES . IN THE SECOND PLACE , THEY CONTEND THAT ACCORDING TO A PRINCIPLE OF ADMINISTRATIVE LAW KNOWN TO SEVERAL MEMBER STATES , WHICH ALSO APPLIES IN COMMUNITY LAW , THE INTERESTS OF THE INHABITANTS OF A MUNICIPALITY AND THE INTERESTS OF THE UNDERTAKINGS ESTABLISHED IN THE MUNICIPAL TERRITORY MUST BE REGARDED AS THE MUNICIPALITIES ' OWN INTERESTS .

6 IT MUST BE STATED FIRST THAT THE CONTESTED DECISION IS BASED BOTH ON THE EEC TREATY , IN PARTICULAR ARTICLE 93 ( 2 ) THEREOF , AND ON THE ECSC TREATY AND ON COMMISSION DECISIONS NOS 257/80 ( OFFICIAL JOURNAL L 29 , P . 5 ) AND 2320/81 ( OFFICIAL JOURNAL L 228 , P . 14 ) WHICH WERE ADOPTED UNDER THE LATTER TREATY . IN ITS JUDGMENT OF 10 FEBRUARY 1983 ( CASE 230/81 GRAND DUCHY OF LUXEMBOURG V EUROPEAN PARLIAMENT ( 1983 ) ECR 255 ) THE COURT HELD IN ESSENCE THAT IF THE CONTESTED MEASURE RELATES SIMULTANEOUSLY AND INDIVISIBLY TO THE SPHERES OF MORE THAN ONE TREATY , AN ACTION IS ADMISSIBLE TO THE EXTENT TO WHICH THE JURISDICTION OF THE COURT AND THE REMEDIES PROVIDED FOR BY THE RELEVANT PROVISIONS OF ONE OF THE TREATIES ARE APPLICABLE TO THE MEASURE IN QUESTION .

7 WITH REGARD , FIRST , TO THE PROVISIONS OF THE ECSC TREATY CONFERRING JURISDICTION ON THE COURT , IT IS SUFFICIENT TO NOTE THAT ARTICLE 33 OF THE TREATY PROVIDES THAT , IN CERTAIN CIRCUMSTANCES , ACTIONS FOR A DECLARATION THAT A DECISION OR RECOMMENDATION OF THE HIGH AUTHORITY IS VOID MAY BE BROUGHT BY A MEMBER STATE , THE COUNCIL OR UNDERTAKINGS AND ASSOCIATIONS OF UNDERTAKINGS WITHIN THE MEANING OF ARTICLE 48 OF THE ECSC TREATY .

8 THAT ARTICLE PROVIDES AN EXCLUSIVE ENUMERATION OF THE PERSONS ENTITLED TO BRING AN ACTION FOR A DECLARATION THAT A MEASURE IS VOID . SINCE LOCAL AUTHORITIES SUCH AS MUNICIPALITIES ARE NOT REFERRED TO THEREIN IT FOLLOWS THAT THEY MAY NOT VALIDLY INSTITUTE SUCH PROCEEDINGS UNDER THE ECSC TREATY .

9 WITH REGARD , SECONDLY , TO THE ADMISSIBILITY OF THE ACTION UNDER THE EEC TREATY IT MUST BE RECALLED THAT THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY MAKES THE ADMISSIBILITY OF AN ACTION BROUGHT BY A NATURAL OR LEGAL PERSON OTHER THAN THE PERSON TO WHOM A COUNCIL OR COMMISSION DECISION IS ADDRESSED , FOR A DECLARATION THAT THE MEASURE IN QUESTION IS VOID , SUBJECT TO THE REQUIREMENT THAT THE CONTESTED DECISION IS OF DIRECT AND INDIVIDUAL CONCERN TO HIM . THE PURPOSE OF THAT PROVISION IS TO ENSURE THAT LEGAL PROTECTION IS ALSO AVAILABLE TO A PERSON WHO , WHILST NOT THE PERSON TO WHOM THE CONTESTED MEASURE IS ADDRESSED , IS IN FACT AFFECTED BY IT IN THE SAME WAY AS IS THE ADDRESSEE .

10 IN THIS CASE THE CONTESTED MEASURE , WHICH IS ADDRESSED TO THE GRAND DUCHY OF LUXEMBOURG , AUTHORIZES IT TO GRANT CERTAIN AIDS TO THE UNDERTAKINGS NAMED THEREIN PROVIDED THAT THEY REDUCE THEIR PRODUCTION CAPACITY BY A SPECIFIED AMOUNT . HOWEVER , IT NEITHER IDENTIFIES THE ESTABLISHMENTS IN WHICH THE PRODUCTION MUST BE REDUCED OR TERMINATED NOR THE FACTORIES WHICH MUST BE CLOSED AS A RESULT OF THE TERMINATION OF PRODUCTION . IN ADDITION , THE DECISION STATES THAT THE COMMISSION WAS TO BE NOTIFIED OF THE CLOSURE DATES ONLY BY 31 JANUARY 1984 SO THAT THE UNDERTAKINGS AFFECTED WERE FREE UNTIL THAT DATE TO FIX , WHERE NECESSARY WITH THE AGREEMENT OF THE LUXEMBOURG GOVERNMENT , THE DETAILED RULES FOR THE RESTRUCTURING NECESSARY TO COMPLY WITH THE CONDITIONS LAID DOWN IN THE DECISION .

11 THAT CONCLUSION IS , MOREOVER , CONFIRMED BY ARTICLE 2 OF THE DECISION ACCORDING TO WHICH THE CAPACITY REDUCTIONS MAY ALSO BE CARRIED OUT BY OTHER UNDERTAKINGS .

12 IT FOLLOWS THAT THE CONTESTED DECISION LEFT TO THE NATIONAL AUTHORITIES AND UNDERTAKINGS CONCERNED SUCH A MARGIN OF DISCRETION WITH REGARD TO THE MANNER OF ITS IMPLEMENTATION AND IN PARTICULAR WITH REGARD TO THE CHOICE OF THE FACTORIES TO BE CLOSED , THAT THE DECISION CANNOT BE REGARDED AS BEING OF DIRECT AND INDIVIDUAL CONCERN TO THE MUNICIPALITIES WITH WHICH THE UNDERTAKINGS AFFECTED , BY VIRTUE OF THE LOCATION OF THEIR FACTORIES , ARE CONNECTED .

13 SINCE THE ACTION IS THEREFORE INADMISSIBLE ALSO TO THE EXTENT TO WHICH IT IS BASED ON THE PROVISIONS OF THE EEC TREATY , IT MUST BE DISMISSED .

COSTS

14 ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING . AS THE APPLICANTS HAVE FAILED IN THEIR ACTION , THEY MUST BE ORDERED TO PAY THE COSTS JOINTLY AND SEVERALLY .

ON THOSE GROUNDS ,

THE COURT ( FIFTH CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE ;

2.ORDERS THE APPLICANTS TO PAY THE COSTS JOINTLY AND SEVERALLY .