Opinion of Mr Advocate-General Roemer

Mr President,

Members of the Court,

In this case the applicants are German companies carrying on undertakings dealing with transport, chartering, trans-shipment and storage of German and foreign cereals.

They consider that they have suffered commercial loss as a result of the German law implementing Regulation No 19 of the Council of the EEC as set out on 19 July 1963 (BGBl. I, pp. 493 et seq.). They consider that this law infringes the third sentence of Article 7 (2) of Regulation No 19 to the extent that it set derived intervention prices at too low a level for the purely harbour centres of the Federal Republic, that is to say the localities connected directly by waterway with the marketing centre of the area with the largest deficit. This having been done, the normal flow of cereal deliveries has been diverted from purely harbour centres and the business of the applicants, who maintain transshipment and storage facilities at these places, has been damaged ed.

For this reason by a letter of 31 July 1963 they requested the Commission of the European Economic Community to ensure that the Federal Republic complies with the duty placed upon it by Article 7 of Regulation No 19.

As they received no reply, the applicants reminded the Commission by a telegram of 21 November 1963 to deal with their letter.

Finally the applicants instituted before the Court of Justice an action for failure to act based upon Article 175 of the EEC Treaty. This application was lodged on 29 November 1963, the same day as that on which the applicants received from the Commission a letter dated 25 November 1963 informing them that its departments had commenced the examination of the questions raised and that the applicants would be informed of the results as soon as it was completed.

In accordance with the request of the Commission, the oral proceedings dealt in the first place only with the question of the admissibility of the application. At the hearing of 14 May 1964, the parties made detailed observations on this point.

However, during the course of this hearing the applicants also made two statements which are such as to make it possible to shorten considerably the examination of the case before us.

From the beginning of his speech the applicants' representative stated that the Commission's letter of 25 November 1963 meant that the first head of their conclusions now had no purpose. The Agent of the Commission having stated that the latter had just commenced the procedure prescribed by Article 169 of the EEC Treaty in respect of the Federal Republic of Germany, the applicants' representative stated that the second head of the conclusions, and in consequence the whole of the application, had also lost its purpose. Only a decision on the costs of the proceedings remained necessary.

The Agent of the Commission did not oppose this statement.

What are the consequences of this situation for the consideration of the proceedings ?

1. first of ail it cannot be doubted that, even in the course of contentious administrative proceedings, it may happen that it becomes unnecessary to adjudicate. In particular one may say that it becomes unnecessary to adjudicate when events subsequent to the commencement of proceedings create a situation which satisfies the purposes of the application, that is to say when an applicant obtains satisfaction of his principal claim.

2. We must therefore only ask ourselves whether this is the situation in the present case, if we do not wish to maintain, which I consider correct, that the Court can be satisfied by the statement of the applicants and by its own finding that the other party has not contradicted that statement and that thus the parties are agreed that the issue is disposed of. A comparison between the conclusions and the steps which the Commission has taken after the commencement of the proceedings might lead to doubt whether the issue is disposed of.

3. For the purposes of the proceedings this means that a decision on the facts is superfluous. Instead, a mere declaration to that effect would suffice and perhaps there is even no necessity for it to appear in the operative fact of the Court's decision (cf. Stein-Jonas, Kommentar zur Zivilprozeßordnung, 17th edition, 1953, paragraph 91a, note I, 1).

4. The decisive provision is that of Article 69 (5) of the Rules of Procedure which leaves to the discretion of the Court the decision as to costs (the French text reads: La Cour règle librement les dépens). That certainly means that the Court is not obliged, merely for the purpose of a proper decision on costs, to consider the questions raised in the case exactly and in detail.

5. To sum up, I consider that the Court, in view of the statements of the. parties during the oral procedure, should state, by way of an order, that there is no longer any necessity to give judgment and incorporate in the order a decision as to costs along the lines of the suggestion made above.

1 Translated from the German.