JUDGMENT OF 15. 1. 1974 — CASE 134/73 HOLTZ v COUNCIL

In Case 134/73

THE COURT composed of: R. Lecourt, President, A. M. Donner and M. Sørensen, Presidents of Chambers, R. Monaco, J. Mertens de Wilmars, P. Pescatore, H. Kutscher, C. Ó Dálaigh Dálaigh (Rapporteur), and Lord Mackenzie Stuart, Judges, Advocate-General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties on the admissiblity of the action

(a) Council's claim

(b) Commission's claim

Grounds of judgment

Costs

I —. Facts and procedure

1. By its Regulation No 136/66/EEC of 22 September 1966 (OJ L 172 of 30 September 1966, p. 3025), the Council established a common organization of the market in oils and fats which applies inter alia to the products which are the subject of the present dispute, colza and rape seed and the oils produced from these products.

2. The applicant, the firm of Holtz & Willemsen, GmbH, operates an oil mill in Krefeld-Uerdingen, in the Land of North Rhine-Westphalia. One of its activities consists of producing oil from colza and rape seed. It considers that the grant of an additional subsidy to Italian oil mills constitutes discrimination on the grounds of nationality infringing Article 7 of the EEC Treaty, and that the difficulties of Italian oil mills result not from the fact that they are situated on Italian territory but because of their distance from the production areas, that its own installations are no nearer such areas and consequently if the treatment granted was different not by reason of nationality but because of a situation of fact, then it, like all the other oil mills of North Rhine-Westphalia, must benefit from the same subsidy.

3. The Holtz firm commenced this action on 16 May 1973.

II —. Conclusions of the parties

1. The applicant claims that the Court should:

2. The Council of the European Communities, a defendant, (applicant with regard to the preliminary objection), contends that the Court should:

3. The Commission of the European Communities, a defendant, (applicant with regard to the preliminary objection), contends that the Court should:

4. The applicant (defendant with regard to the preliminary objection) claims that the Court should:

III —. Submissions and arguments of the parties on the admissiblity of the action

1. The Council, a defendant, (applicant with regard to the preliminary objection) points out that the action prescribed by the second paragraph of Article 175 is admissible only if the Community institution, after having been called upon to act, has not defined its position within two months of being so called upon. The Council, given notice to replace the existing system by a scheme of a Community nature replied within the time limit allowed that the existing system was in conformity with the Treaty. These words constitute without dispute a definition of its position. The case law of the Court is clear on this matter: judgments of 1 March 1966(Lütticke v Commission,48/65, Rec. 1966, 1, p. 28-40) and 8 March 1972(Nordgetreide v Commission,42/71 Rec. 1972, 2, p. 105-110).

2. The Commission, a defendant, (applicant with regard to the preliminary objection) observes that by bringing this action the applicant wants to force it to submit to the Council a proposal under Article 43 of the EEC Treaty for the adoption of a regulation; the contents of such a proposal would be imposed on it without any possibility of alteration, which would reopen the question of the exclusive right of initiative which the Commission holds under the said Article 43, and consequently also its institutional position within the framework of the Treaties.

3. The applicant (defendant with regard to the preliminary objection) submits its observations on the claims in respect of the preliminary objections relating to inadmissibility raised by the Council and the Commission.

(a). Council's claim

(b). Commission's claim

1. By an action commenced on 16 May 1973, based on Article 175 of the EEC Treaty, the applicant complains that the Council has failed to enact a regulation relating to an additional subsidy for colza and rape seed processed in oil mills far from the production areas.

2. In addition to the aid granted within the framework of the common organization of the market in oils and fats, there was set up, as from the 1967/68 marketing year, an additional subsidy whose purpose was to lessen certain difficulties encountered by Italian oil mills and which was renewed for the 1972/73 marketing year by Regulation No 1336/72 of 27 June 1972 (OJ L 147 of 29 June 1972, p. 7).

3. By a letter of 23 March 1973 the Council replied to the applicant that it was of the opinion that the Regulations establishing an additional subsidy for colza and rape seed processed in Italy were in conformity with the EEC Treaty.

4. In its action the applicant drew attention to the fact that the Council, in infringement of the Treaty, has failed to enact a regulation for an additional subsidy for colza and rape seed processed in oil mills far from the production areas and providing, inter alia, in the case of an oil mill situated in the Federal Republic of Germany in the Land of North Rhine-Westphalia, for the payment of an additional subsidy of 0.60 u.a. per 100 kg of colza and rape seed.

5. By the third paragraph of Article 175 any natural or legal person may, under the conditions laid down in the first and second paragraphs of the same Article, complain to the Court of Justice that the Council or the Commission has, in infringement of the Treaty, failed to address to that person any act other than a recommendation or an opinion.

6. The action must therefore be dismissed as inadmissible.

7. By Article 69 (2) of the Rules of Procedure the unsuccessful party shall 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 with regard to 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 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:

1 Dismisses the action as inadmissible.

2 Orders the applicant to pay the costs of the proceedings.