Opinion of Mr advocate-general Gand

Mr President,

Members of the Court,

In accordance with Article 91 of the Rules of Procedure, you are only required today to rule on the plea of inadmissibility raised by the Commission of the EEC against the application brought by the Lütticke company and two other German undertakings. You know the circumstances which gave rise to this dispute. These three companies, which import powdered milk from the countries of the Common Market, contend that the levy of a turnover equalization tax on the import of this product has, since 1 January 1962, the date of the beginning of the second stage, constituted an infringement of the EEC Treaty. As their unofficial approaches produced no results, they decided to use the procedure provided by Article 175 and on 15 March 1965 requested the Commission:

After an interim reply, the applicants received by express delivery on 17 May 1965 a letter signed by the Director-General for Competition, the full text of which appears in the report of the hearing. This senior official indicated that by reducing from 4 % to 3 % the turnover equalization tax as from 1 April 1965 the German Federal Republic had put an end to the infringement of the first paragraph of Article 95 which the EEC Commission had noted and criticized. The Commission therefore decided not to insist on a retroactive reduction to 1 January 1962 of the rate of tax in question. Moreover, the Commission did not consider that the turnover equalization tax was in itself an infringement of Article 95 and did not therefore see any reason for further action on its part. The letter ended in the following terms: Furthermore, the Commission would like to point out that this information is given to you without recognition of any legal obligation. The possibility of proceedings for failure to act in connexion with your requests must be excluded, as far as your clients are concerned, under the terms of the third paragraph of Article 175 of the EEC Treaty.

It was in these circumstances that the Lütticke company and the two other applicants submitted two sets of conclusions. They are asking you, on the basis of the second paragraph of Article 173 of the Treaty, to annul the decision contained in the letter which I have summarized, which was both addressed and notified to them. If, however, you should consider that this letter does not constitute a decision, it would follow that the Commission had not defined its position within the required time within the meaning of the second paragraph of Article 175. In such a case it would have failed to act, which in their alternative conclusions the applicants ask you to place on record.

Thus, the procedure has been opened by means of a formal notice, a request to act, within the meaning of Article 175. To assess the plea of inadmissibility it is therefore necessary, first of all, to define the scope of this Article of the EEC Treaty. It will be seen that the possibilities which it offers to individuals are much smaller than those resulting from Article 35 of the ECSC Treaty, which you have often had occasion to apply.

This Article, which is open to Member States and other institutions of the Community when, in infringement of the Treaty, the Council or the Commission fails to act, requires that the application should be preceded by a request for action. If the institution has not defined its position within two months from the date of this request, an application may be entered within a further period of two months. And let us note here in passing that the expression to define its position is very vague and comprehensive.

The third paragraph of Article 175 adds: Any natural or legal person may, under the conditions laid down in the preceding paragraphs, complain to the Court of Justice that an institution of the Community has failed to address to that person any act other than a recommendation or an opinion. It therefore follows that the main objective of proceedings for failure to act brought by a natural or legal person is to procure a legal measure, which by its nature and its purpose must be addressed to the applicant and which can only be a decision. This point was stressed by Advocate-General Roemer in his opinion in a rather similar application, Case 103/63 (Rhenania Schiffahrtsund Speditions-Gesellschaft mb H and Others v EEC Commission, Rec. 1964, p. 839) which did not proceed to judgment.

Together with Article 169, the provision which we have considered prevents a private person from obtaining a finding that a Member State has failed to fulfil one of its obligations. Under the system established by the ECSC Treaty it was for the High Authority to make this finding by means of a reasoned opinion, against which the State concerned had the right to bring an application in which the Court has unlimited jurisdiction. You have accepted the possibility that an undertaking which considers a Member State to be failing in its obligations may request the High Authority to call upon that State to rectify the failure and, if the High Authority does not do so, may bring proceedings for failure to act under Article 35 (Joined Cases 7 and 9/54, Groupement des Industries Sidérurgiques Luxembourgeoises, Rec. 1955-1956, p. 55, and Case 30/59, Rec. 1961, P. 3).

This case-law is explamed by the fact that the application of Article 35 is subject to the general conditions concerning applications for annulment laid down in Article 33, that the individual decisions referred to in the second paragraph of Article 33 need not necessarily be addressed to the applicant, but may simply concern him and, finally, that the reasoned decision of Article 88 of the ECSC Treaty is an individual decision which may concern private persons within the meaning of the second paragraph of Article 33.

However, under Article 169 of the EEC Treaty, the Commission has no power to record, by means of a binding legal measure, an infringement of the Treaty by a Member State; it has the power only to refer the matter to you in the concluding stage of a procedure whose main feature is the publication of a reasoned opinion, before which the State concerned must be given the opportunity to submit its observations. The measures provided for in Article 169 are, therefore, elements in a procedure intended to settle a dispute between the defendant and a Member State, the final solution to which will only be provided by the Judgment which you are called on to give. Whether we are considering the request to the Member State to submit its observations or the reasoned opinion which precedes reference of the dispute to you, we are dealing with measures (using the word in its most general sense and without giving it any precise legal significance) issued in respect of a Member State and in no way addressed to the person who had called upon the Commission to act.

Thus, it is no accident that the wording of the third paragraph of Article 175 renders it impossible for a private person to bring proceedings for failure to act in the case of a failure to initiate the procedure laid down in Article 169 against a Member State; rather it is the result of the firm intention of the authors of the Treaty to abolish the right given to private persons by the combined provisions of Articles 33, 35 and 88 of the ECSC Treaty. Any interpretation which would permit the application of your earlier case-law within the framework of the EEC Treaty would certainly be contrary not only to the letter of the Treaty, but also to the intention of its authors.

I have stressed certain aspects of the procedure provided for in Articles 169 and 175 because the applicants themselves intended to employ the latter in order to compel the Commission to apply the former. I consider that the conclusions which may be drawn from this as to the admissibility of the application before you — whether on the basis of Article 173 or that of the third paragraph of Article 175 — are fairly simple. I shall suggest that, whatever the dialectical skill of the applicants, you accept the plea of inadmissibility raised by the Commission,

1. In their principal conclusions the applicants are requesting you to annul the decision of 14 May 1965, which, they say, is addressed to them and was notified on 17 May 1965. This is a reference to the letter in which the Director-General for Competition, replying to specific questions asked of the Commission within the context of Article 175, indicated that the latter body did not consider the Federal Republic to have infringed Article 95 of the Treaty and therefore did not see any need for further action.

2. You also have before you alternative conclusions put forward by the applicants in case — as they suspected from the start — you should consider that the letter addressed to them does not constitute a decision against which an application may be made under the terms of Article 173. The way would then necessarily be open to proceedings for failure to act under Article 175. But I refuse to accept the dilemma in which it is sought to place you and on this point I shall merely refer to what I have said earlier on the subject of this Article.

I am therefore of the opinion that:

1 Translated from the French.