JUDGMENT OF 26. 10. 1971 — CASE 15/71 MACKPRANG v COMMISSION
In Case 15/71
THE COURT composed of: R. Lecourt, President, J. Mertens de Wilmars and A. Kutscher, Presidents of Chambers, A. M. Donner, A. Trabucchi, R. Monaco and P. Pescatore (Rapporteur), Judges, Advocate-General: A. Dutheillet de Lamothe 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
Grounds of judgment
Costs
I —. Facts
II —. Procedure
III —. Submissions and arguments of the parties on the admissibility of the application
(a). The failure to act of which the Commission is accused consists in the fact that it did not address a decision to all the Member States of the Community. It follows from the third paragraph of Article 175 that a natural or legal person may only bring an application before the Court on the ground of a failure to act in order to complain that one of the institutions of the Community has failed to address to that person a measure other than a recommendation or an opinion: the purpose of such an application must therefore be to obtain a binding measure which by its nature and purpose must be addressed to the applicant himself.
(b). The admissibility of the application cannot be deduced by analogy from Article 173 (2) which with regard to applications for annulment recognizes that natural or legal persons have the right to appeal not only against decisions addressed to them but also against decisions addressed to another person which are of direct and individual concern to them. The difference between the rules laid down by Article 175 (3) and those laid down by Article 173 (2) establishes the fact that an application by a private individual on the ground of a failure to act may only seek the taking of a decision with regard to the Member States even if that private individual is directly and personally affected by the failure to take such a decision.
(c). The fact that private individuals cannot oblige the institutions of the Community by means of an application on the ground of a failure to act to address decisions to the Member States is explained by the concern felt by the authors of the Treaty to limit the influence that may be exercised by private individuals on the relationship between the Community institutions and the Member States; this concern is also shown by the procedure laid down in Article 169.
(d). Alternatively, the Commission argues that even if private individuals can bring an application on the ground of a failure to act against the failure to take a decision addressed to the Member State, such an application would only be admissible on condition that that omission is of direct and individual concern to the applicant. In any case the absence of the decision requested in the present case is not of individual concern to the applicant.
(a). The conditions for admissibility laid down by the second paragraph of Article 175 with regard to form and time limits are fulfilled in the present case.
(b). The Commission has infringed the Treaty by its failure to act.
(c). Article 176 (1) establishes that the application for annulment laid down in Article 173 and the application laid down in Article 175 are the two procedural aspects of the same remedy. They pursue the same aim of legal protection and have the same effects. The application under Article 175 is therefore subject to the same general conditions of admissibility as the application under Article 173.
(d). Besides the admissibility of an application on the ground of a failure to act ought not to be appraised too restrictively particularly in cases where a private individual has no other way of asserting his rights.
1. By application lodged on 26 March 1971 under Article 175 of the EEC Treaty, the applicant complains that the Commission, in breach of its obligation under Article 155, has failed to address to the Member States a measure which, by completing its Decision of 17 July 1962 on methods of administrative cooperation for the application of intra-Community agricultural levies (OJ 1962, p. 2140), empowered or ordered them to impose the intra-Community levy on goods from Algeria imported in 1963 even where a movement certificate on Form DD4 which is prescribed by the abovementioned provision is not produced, if it is established by means of sufficient other evidence that the goods are in fact of Algerian origin. At this request of the Commission to apply Article 91 of the Rules of Procedure, the Court has decided to give a ruling on the admissibility of this application without going into the substance of the case.
2. It is not contested that the applicant imported certain quantities of wheat bran from Algeria into the Federal Republic of Germany in 1963, following an invitation to tender issued by the Einfuhr- und Vorratsstelle für Getreide und Futtermittel, Frankfurt am Main, in which Algeria was mentioned among the countries belonging to the EEC. Because of the refusal of the Algerian authorities to issue the movement certificates on Form DD4 referred to in the Decision of 17 July 1962, the applicant firm was unable to produce any document to the German customs authorities which in their opinion justified the application of the intra-Community agricultural levies. Consequently, the higher levy fixed with regard to imports from third countries was imposed on the imports in question.
3. After the applicant had failed to obtain satisfaction from the national authorities, it asked the Commission to ensure, by means of an order addressed to the Federal Republic of Germany or an appropriate amendment of the Decision of 17 July 1962, the application of the intra-Community levy to the applicant's case by allowing evidence other than production of tie certificate on Form DD4. In its request addressed to the Commission under Article 175 (2) and in its originating application, the applicant specified the subject of the dispute to the effect that it requests the Commission for a decision supplementing the Decision of 17 July 1962 and directed to the same addressees.
4. Under Article 175 (3), any natural or legal person may, under the conditions laid down in paragraphs (1) and (2) of that article, complain to the Court of Justice that the Commission, in breach of the Treaty, has failed to address to that person any act other than a recommendation or an opinion. The summary given above shows that the application lodged by the applicant requests the Commission to issue a general provision which would have the same legal scope as the Decision of 17 July 1962. Such a decision cannot, either because of its form or its legal nature, be described as an act which could be addressed to the applicant within the meaning of Article 175 (3).
5. Moreover, in view of the distribution of powers between the Community and the Member States, as results from the agricultural rules in force at the time of the imports in question, an application requesting that the field of application of the Decision of 17 July 1962 be defined with regard to imports which were from a third state, even if they should have received the benefit of the intra-Community system could only be lodged with national courts.
6. The application must therefore be dismissed as inadmissible.
7. 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.
On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties on the objection; Upon hearing the opinion of the Advocate-General on the objection; Having regard to the Treaty establishing the European Economic Community, especially Article 175; 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:
I Dismisses the application as inadmissible;
2 Orders the applicant to bear the costs of the action.