Opinion of Mrs Advocate General Rozės

Mr President,

Members of the Court,

Spijker Kwasten, a company with limited liability [hereinafter referred to as Spijker] has brought an action before the Court for a declaration that a decision adopted by the Commission of the European Communities on 7 July 1982 is void.

Pursuant to Article 91 of the Rules of Procedure the Commission requested the Court to decide in the first place whether the action was admissible without considering the substance of the case.

By order of 23 February 1983 the Court agreed to the request. My opinion is therefore limited to consideration of that question.

It is necessary however to refer to the facts which gave rise to the dispute and then to the arguments put forward by the Commission in support of its objection of inadmissibility.

Spijker is a company established in the Netherlands, part of whose business is trade in and the importation of brushes and similar products, especially brushes originating in the People's Republic of China (subheading ex 96.01 of the Common Customs Tariff).

It is common ground that in the Benelux States Spijker is the only trader in and importer of such products originating in China which in fact it obtains from the Federal Republic of Germany where they are in free circulation.

On 18 June 1982 it applied to the Centrale Dienst voor In- en Uitvoer [Netherlands Central Office for Imports and Exports] for an import licence in respect of a consignment of 5400 dozen (that is to say 64800) brushes costing DM 76 130.

On 28 June 1982 the Netherlands Government in agreement with its Benelux partners requested the Commission for authorization to take protective measures within the meaning of the first paragraph of Article 115 of the Treaty.

On 29 June 1982 Spijker was informed that that request was pending and of the risk that the importation which it was seeking to effect might be excluded from Community treatment.

In the event, on 7 July 1982 the Commission authorized the Benelux States not to apply Community treatment until 31 December 1982 to brushes (falling within subheading ex 96.01 of the Common Customs Tariff) originating in the People's Republic of China and in free circulation in other Member States as regards licences applied for after 25 June 1982.

That decision had two consequences: first, Spijker obtained the licence for which it had applied, since it had lodged its application before 25 June 1982; on the other hand, until 31 December 1982 any new application on its part would be rejected automatically. The latter measure affects it adversely.

In support of its objection of inadmissibility the Commission maintains that the decision of 7 July 1982 which is addressed to the Benelux States is neithei of direct nor of individual concern tc Spijker.

1. It is clear that, of the States to which it is addressed, the contested decision is of interest primarily to the Netherlands and, of the brushes which are in free circulation in the other Member States, it concerns those in the Federal Republic of Germany.

2. Moreover, it is clear that Spijker's conduct and application were the cause of the approach to the Commission made by the Netherlands authorities in agreement with its Benelux partners.

3. The applicant is the only company established in the Benelux States which regularly imports, via the Federal Republic of Germany, goods of that kind originating in the People's Republic of China. The decision is not only of direct but also of individual concern to it since, as has been held by the Court, it affects Spijker by reason of certain attributes which are peculiar to [it] or by reason of circumstances in which [it is] differentiated from all other persons.

My opinion is that the objection of inadmissibility should be rejected and that the Commission should be ordered to pay the costs incurred in connection with this procedural issue.

1 Translated from the French.

2 Judgment of 15 July 1963 in Case 25/62 [1963] ECR 95.