Opinion of Mr Advocate General Lenz

Mr President,

Members of the Court,

A — Facts and Issues

It is necessary for -me to submit my opinion today on the admissibility of an action brought against the Commission by five Luxembourg municipalities. The action concerns Commission Decision 83/397/EEC, ECSC of 29 June 1983 (Official Journal L 227, p. 29) concerning the aids that the Luxembourg Government proposes to grant to the steel industry. In the decision the compatibility of State aids to steel undertakings with the orderly functioning of the Common Market is made conditional upon inter alia a reduction of specified steel production capacity. Steel undertakings operate in the territory of the municipalities bringing the action.

1. The previous history

The previous history of the contested decision may be summarized as follows.

2. The views of the parties

However, on the basis that the decision is governed simultaneously by the provisions of the ECSC Treaty and those of the EEC Treaty, it is sufficient if it may be challenged under EEC law since that part of the decision which is governed by the ECSC Treaty is inseparable from the part governed by the EEC Treaty. The applicants rely in that respect on the Court's judgment in Case 230/81 Grand Duchy of Luxembourg V European Parliament

Nevertheless they contend that there is absolutely no doubt that the decision is of direct and individual concern to the applicants. In the first place the undertakings required to reduce their capacity have plant only in the municipalities bringing the action. Their closure or reduction therefore affects those municipalities' own interests (which are not identical to the corporate interests of their inhabitants, at the very least to the extent of reducing income from taxation. In the second place the fact that the decision is of direct concern to them cannot be called in question by reference to the fact that after the contested decision was adopted other decisions had to he adopted by the Luxembourg Government, which was merely empowered to act, and by the undertakings in question. A realistic examination of the position must take into account the fact that, as a result of clear economic pressure, all those decisions were inevitable and it might even be possible to go so far as to say that they were in fact fixed in advance, as may be seen from the fact that only a short time after the contested decision was adopted on 1 July 1983 a Luxembourg Law on the matter was passed. In the alternative the applicants also submit that there is no doubt that they have a right to bring an action under the ECSC Treaty and they rely in that respect on Article 31 thereof which states that: The Court shall ensure that in the interpretation and application of this Treaty, and of rules laid down for the implementation thereof, the law is observed.

B — Discussion

In my opinion the Commission has put forward the better arguments in this case and was therefore correct to raise its objection.

1. In the first place the view taken by the applicants that Article 92 et seq. of the EEC Treaty is the sole legal basis for the contested decision cannot be accepted.

2. It is also completely clear that under the ECSC Treaty the municipalities which have instituted the proceedings do not have a right of action. Article 31, on which they rely, merely provides a general definition of the tasks assigned to the Court. It does not regulate questions of right of action since, as is clear from the structure of the ECSC Treaty, there is no general provision on the matter but merely the possiblitity of bringing an action in specific clearly defined cases.

3. In addition the applicants are unable to rely on the EEC Treaty since it appears that the requirement laid down in the second paragraph of Artcile 173 of the EEC Treaty that if a person wishes to challenge a decision addressed to another person that decision must be of direct and individual concern to the former, is not satisfied in this case.

By way of summary I therefore propose that the Court should declare that the Commission's objection of inadmissibility is justified, that it should dismiss the applications of the five Luxembourg municipalities as inadmissible and should order them, in accordance with the Commission's application, to pay the costs.

1 Translated from the German.

2 Judgment of 10.2.1983 in Case 230/81 Grand Duchy of. Luxembourg V European Parliament [Ì983] ECR 255.

3 Judgment of 15.7.1963 in Case 25/62 Plaumann & Co. v Commission of the European Economic Community [1963] ECR 95.

4 Judgment of 13.5.1971 in Joined Cases 41 to, 44/70 NV International Fruit Company and Others v Commission of the European Communities [1971] ECR 411.

5 Judgment of 6.3.1979 in Case 92/78 Simmenthal SpA v Commission of the European Communities [1979] ECR 777.

6 Judgment of 29.3.1979 in Case 113/77 NTN Toyo Bearing Company Ltd and Others v Council of the European Communities [1979] ECR 1185.

7 Judgment of 23.11.1971 in Case 62/70 Werner A. Bock v Commmission of the European Communities [1971] ECR 897.

8 Judgment of 16.3.1978 in Case 123/77 Unione Nazionale Importatori e Commercianti Motoveicoli Esteri (UNICME) and Others v Council of the European Communities [1978] ECR 845.

9 Judgment of 16.1.1979 in Joined Cases 103 to 109/78 Société des Usines de Beauport and Others v Council of the European Comunities [1979] ECR 17.

10 Judgment of 15.7.1963 in Case 25/62 Plaumann & Co. v Commission of the European Econmic Community [1963] ECR 95.

11 Judgment of 14.7.1983 in Case 231/82 Spijker Kwasten BV v Commission of the European Communities [1983] ECR 2559.

12 Judgment of 31.3.1977 in Case 88/76 Société pour l'Exportation des Sucres SA v Commission of the European Communities [1977] ECR 709.

13 Judgment of 21.2.1984 in Joined Cases 239 and 275/82 Allied Corporation and Others v Commission of the European Communities [1984] ECR 1005.

14 Judgment of 16.3.1978 in Case 123/77 Unione Nazionale Importatori e Commeráanti Motoveicoli Esten (UNICME) and Others v Council of the European Communities [1978] ECR 845. Judgment of 21.2.1984 in Joined Cases 239 and 275/82 Allied Corporation and Others v Commission of the European Communities [1984{ ECR 1005. Judgment of 14.7.1983 in Case 231/82 Spijker Kwasten BV v Commission ol the European Communities [1983] ECR 2559.

15 Judgment of 29.3.1979 in Case 113/77 NTN Toyo Bearing Company Ltd and Others v Council of the European Communities [1979] ECR 1185.