Opinion of Mr Advocate general Capotorti

Mr President

Members of the Court,

1. In this case the Court has decided that the oral procedure shall be restricted at the present time to the question of the admissibility of the application. I shall therefore deal only with that question, having first summarized the essential facts.

2. Let us consider first of all the application on the grounds of failure to act. The defendant maintains that this application is inadmissible for two reasons: infringement of Article 38 (c) of the Rules of Procedure in that the Commission has failed to state the legal grounds on which the application is based; and infringement of the second paragraph of Article 175 of the EEC Treaty inasmuch as the condition that the institution should have failed to act was not fulfilled.

3. The second ground which the Commission has put forward for the inadmissibility of the application is based on the argument that it did not fail to act after being called upon to do so. I have already had occasion to note that the Commission sent a letter to the applicant dated 22 March 1979 after it had been requested to act and I have referred to its contents. The problem which now arises and with regard to which the parties are naturally at odds, is the legal status of that letter. The Commission maintains that it contains a definition of its position within the meaning of the second paragraph of Article 175 and accordingly that the complaint of failure to act, which constitutes the precondition of the application, must therefore fail whilst GEMA takes the view that the value of the letter is purely interlocutory and accordingly cannot constitute a termination of the institution's failure to act.

4. There remain two points of a general nature which it appears essential to settle for the purposes of the present action: clarification of the legal position of a private person who makes an application pursuant to Article 3 (2) of Regulation No 17 — establishing whether he is entitled to obtain a decision from the Commission and, if so, the nature of that decision — and the interpretation of Article 175 of the EEC Treaty in order to clarify the scope of the concept of failure to act on the pan of the Council or of the Commission which is embodied in that article.

5. Let us now proceed to the other problem of a general nature which must be considered: the interpretation of Article 175 of the EEC Treaty. As the Court is aware, that article provides that should the Council or the Commission, in infringement of this Treaty, fail to act, the Member States and the other institutions of the Community may bring an action before the Court of Justice to have the infringement established. The last paragraph of that article extends that right to bring an action to any natural or legal person who wishes to complain … that an institution of the Community has failed to address to that person any act other than a recommendation or an opinion. It is a condition for the admissibility of such an action either by the States, the institutions or by private persons, that the institution concerned should first have been called upon to act, and have failed to define its position within two months thereof.

6. Let us take stock of the foregoing considerations. GEMA, having exercised the power conferred by Article 3 (2) (b) of Regulation No 17 of the Council upon natural or legal persons having a legitimate interest, was certainly entitled under Article 6 of Regulation No 99/63 of the Commission to receive the information therein provided for and to be given a time-limit for any further comments in writing. If it had not received that information it would moreover have been entitled to call upon the Commission to act (within the meaning of Article 175 of the EEC Treaty) and if the latter nevertheless failed to reply or to take action the conditions would have been fulfilled for bringing proceedings for failure to act. However, the information was in fact supplied by the Commission through the said letter of 22 March 1978 which, as I have already stated, met in full the requirements prescribed in Article 6 of Regulation No 99/63. In my view the provision of that information constitutes a specific example of the act mentioned in the last paragraph of Article 175; accordingly the Commission's failure came to an end at the date of that letter. The act in question could have been challenged within the proper time by an application for annulment since the acts whose legality may be reviewed by the Court of Justice are described in the first paragraph of Article 173 in identical terms with those employed in the last paragraph of Article 175. This view is substantiated by the fact that, in my view, the letter of 22 March 1978 constituted an implied decision to shelve the proceedings initiated against the Compagnie Luxembourgeoise de Télédiffusion and its associated undertakings. GEMA could therefore have requested the annulment of that decision on the basis of the lines laid down in the judgment of 25 October 1977 in the Metro case. In any event, that is to say, even though there remained doubts as to the exact status of the letter in question, it nevertheless constituted a definition by the Commission of its position for the purposes of the second paragraph of Article 175; that was enough to defeat the application for failure to act.

7. We have seen that GEMA also lodged an application in the alternative on 19 March 1979 for the annulment of the decision contained in the Commission's letter of 12 March 1978.

8. I accordingly conclude by suggesting that the Court of Justice should declare i: . missible both applications, for failure to act and for annulment, lodged L GEMA against the Commission on 30 May 1978 and 19 March 1979 respectively.

1 Translated from the Italian