JUDGMENT OF 16. 6. 1970 — CASE 69/69 ALCAN v COMMISSION

In Case 69/69

THE COURT composed of: R. Lecourt, President, R. Monaco and P. Pescatore (Rapporteur), President of Chambers, A. M. Donner, A. Trabucchi, W. Strauß and J. Mertens de Wilmars, Judges, Advocate-General: J. Gand Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

II — Procedure

III — Submissions and arguments of the parties on the admissibility of the application

A — The period within which the application should be made

B — The conditions of admissibility under the second paragraph of Article 173

1 — Is the contested decision of direct concern to the applicants?

2 — Is the contested decision of individual concern to the applicants?

Grounds of judgment

Costs

I —. Facts

(1). As regards unwrought aluminium (heading 76.01 A), as from the first alignment on the Common Customs Tariff, the Commission shall authorize the Federal Republic of Germany and the Benelux countries on their request to open annual tariff quotas subject to a duty of 5 % to cover the import needs of their processing industries, subject to the condition that goods imported under the benefit of such quotas are processed within the importing Member State.

(2). These quotas may not exceed the limits beyond which transfers of work to the detriment of other Member States become apparent.

(3). The Commission may revise quotas thus opened in accordance with the development of the importing needs of the industries in question.

II —. Procedure

III —. Submissions and arguments of the parties on the admissibility of the application

A —. The period within which the application should be made

B —. The conditions of admissibility under the second paragraph of Article 173

1 —. Is the contested decision of direct concern to the applicants?

(a). It is not possible for decisions taken by the Commission under Protocol No XII to be of direct concern to private persons. The power of authorization which that protocol confers on the Commission concerns only its relationships with the Member States; it does not enable it to govern the legal situation of individuals. The ability of the latter to benefit from the opening of a tariff quota in respect of the product under considerations always presupposes a measure by a Member State; the direct link of causality required by the second paragraph of Article 173 of the Treaty can therefore never exist between decisions taken by the Commission on the basis of the aforementioned protocol and the legal situation of individuals.

(b). In practice, the grant by the Commission of a tariff quota at reduced duties does not place any obligation upon the Member States concerned; it confers a mere power on them and leaves them free to open the quota authorized, not to bring it into force or to bring it into force only pratially. Only the national measures can have legal effects for individuals; consequently the latter are not directly concerned by the prior decision of the Commission.

(c). The fact that the contested decision concerned a state of affairs which had expired at the time when it was taken is without importance as regards the evaluation of the admissibility of the application.

(d). The fact that in the present case the contested decision refuses the quota requested does not lead to a different result in respect of the decision on the criterion of a direct interest.

(e). It is not logical from the point of view of litigation to treat decisions of refusal differently according to whether they are express or implied. It is however to this result that the argument accepting the possibility of a direct interest by individuals in the contested decision leads.

(f). For all these reasons, the Commission considers that the contested decision is not of direct concern to the applicants.

2 —. Is the contested decision of individual concern to the applicants?

(a). The fact that they are aluminium importing and processing industries does not suffice to allow the applicants to be regarded as individually concerned by the contested decision.

(b). It may without doubt be admitted that because of its date the contested decision could have had hardly any effect, if it had been positive, other than to authorize Belgium and Luxembourg to make certain repayments of customs duties within the limit of the quota agreed to and to regard persons concerned as being among those who in 1968 made imports of unwrought aluminium into Belgium and Luxembourg from third countries with the intention of processing that aluminium in the importing Member State after Belgium or Luxembourg had exhausted their capacity to draw upon the Community tariff quota opened in 1968 for the same product by the decision of the Council of 29 February 1968.

(c). The applicants could not have found themselves in circumstances in which they were differentiated from all other persons and distinguished individually just as in the case of the person addressed; the contested decision is not therefore of individual concern to them within the meaning of the second paragraph of Article 173 of the Treaty.

(a). According to the applicants, because of the date of the contested decision and of its exclusively retroactive effects, the number and identity of those importers, including the applicants, were clearly determined and capable of verification before the date on which the Commission adopted its decision. Those importers were affected by the contested decision because of a particular completed activity which at the time when the decision was taken could not have been carried out by another person.

(b). The argument put forward by the Commission with regard to the determination of persons capable of benefiting from a repayment of customs duties on the supposition that its decision had been positive is superfluous and irrelevant.

(c). The views of the Commission are not, furthermore, founded on fact.

(d). The applicants therefore consider themselves to be individually concerned by the contested decision.

1. By an application lodged on 25 November 1969, the applicant companies have requested the annulment of a decision of the Commission, dated 12 May 1969, which refused to allow the Kingdom of Belgium and the Grand Duchy of Luxembourg to open for the year 1968 a tariff quota for unwrought aluminium under heading 76.01 A of the Common Customs Tariff.

2. The Commission has requested the Court, under Article 91 of the Rules of Procedure, to rule on the admissibility of this application, without examining the substance of the case, contending that the applicants lacked the locus standi to make the application in view of the conditions for admissibility laid down by the second paragraph of Article 173 of the Treaty and also alleging, in the alternative, that the application was out of time.

3. Under the second paragraph of Article 173 of the Treaty, any natural or legal person may, under the conditions set out in the first paragraph of that article, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.

4. The aim of this provision is to ensure the legal protection of individuals in all cases in which they are directly and individually concerned by a Community measure—in whatever form it appears—which is not addressed to them.

5. In these circumstances, it is necessary to consider whether the decision of 12 May 1969, which is the subject-matter of the present case, is of direct and individual concern to the applicants, although it is addressed to the Kingdom of Belgium and the Grand Duchy of Luxembourg.

6. The contested decision was taken within the framework of the powers conferred on the Commission by Protocol No XII on unwrought aluminium, annexed to the Agreement of 2 March 1960 on the establishment of a part of the Common Customs Tariff relating to products in List G.

7. Under this protocol and subject to the conditions therein prescribed, the Commission shall authorize… the Benelux countries on their request to open annual tariff quotas subject to a duty of 5 % to cover the import needs of their processing industries….

8. A decision taken by the Commission, in pursuance of the provision quoted above, has thus no effect other than to create a power in favour of the Member States concerned, and does not confer any rights on possible beneficiaries of any measures to be taken subsequently by the said States.

9. It appears consequently that the grant, under Protocol No XII, of a tariff quota carrying a reduced rate of duty in favour of the Kingdom of Belgium and the Grand Duchy of Luxembourg would not have the effect of directly concerning undertakings which might have benefited from the award thus made.

10. However, the applicants point out that the contested decision is a negative decision and not one granting an authorization.

11. Consequently the decision is, it is alleged, of direct concern to them since it deprives them of any possibility of enjoying a reduced rate of duty under a tariff quota.

12. Furthermore, it is alleged that, as the decision was taken after the end of the financial year to which it referred, the identity of the importers who might have benefited from the said quota was definitively established, so that the decision rejecting the said request is of individual concern to the importers.

13. The annulment of the decision of 12 May 1969 cannot confer on the applicants the benefits which they seek, as such benefits can result only from the opening of tariff quotas by national authorities after an authorization granted by the Commission to the Member State concerned.

14. It appears therefore that the application aims in fact at requiring the Commission to adopt a measure, the effects of which, under Protocol No XII, can affect only the Member States.

15. The decision rejecting the request does not therefore concern the applicants in any other manner than would the positive decision which they wish to obtain.

16. It follows that the application must be dismissed as inadmissible, as the applicants have been unable to establish that they are concerned within the meaning of the second paragraph of Article 173.

17. In these circumstances, there is no need to consider the question whether the application has been brought within the prescribed period.

18. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

19. The application has been held to be inadmissible.

20. The applicants must therefore be ordered to pay the costs.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties on the preliminary objection ; Upon hearing the opinion of the Advocate-General on the preliminary objection; Having regard to the Treaty establishing the European Economic Community especially Article 173; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69 and 91, THE COURT hereby :

1 Dismisses the application as inadmissible;

2 Orders the applicants to pay the costs.