Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. By order of 20 June 1984 the Court assigned Case 50/84, Bensider and Others v Commission, to the Fifth Chamber for preliminary consideration of the admissibility of the originating application.

2. Before I set out the facts giving rise to the question to be dealt with, some clarification may be useful. In their application, the applicants describe themselves as dealers in second steel products: they therefore fall within the category of steel dealers covered, in addition to steel undertakings, by Decision No 3717/83. Article 2 of that decision defines dealers as distributive undertakings ... which effect ... sales ... within the common market, of the steel products listed in Annex I.

3. The facts of this case are essentially marked by two dates: 31 December 1983, when Decision No 3717/83 was published in the Official Journal (L 373), and 25 February 1984, when the applicants lodged an application for a declaration that that decision was void.

4. There is no doubt, as in indeed stated in the order of the President of 23 May 1984, that the application by the six undertakings whose registered offices are in Belgium reached the Court Registry after the prescribed period had expired. In order to comply with the time-limits laid down by the Community rules applicable in this case (third paragraph of Article 33 of the ECSC Treaty, Article 81 of the Rules of Procedure and Article 1 of Annex II thereto), the Belgian undertakings should have lodged their application by 17 February 1984 at the latest. In the event, the application was registered on 25 Febraury 1984.

5. It remains to be considered whether the application can be declared admissible as far as the Italian undertaking is concerned.

6. I shall now go on to the second of the two requirements laid down in Article 33: the existence with respect to the applicant of a misuse of powers affecting [it]. I shall begin by considering the question raised for the first time by the Commission during the oral phase of the proceedings. At that time, reiterating to the letter an argument put forward in the order of the President of 23 May 1984 (paragraph 25), the representative of the defendant maintained that, regardless of Bensider's legal circumstances when the application was lodged, it had no interest in bringing an action against Decision No 3717/83. That measure entered into force on 1 January 1984 and, even if the argument as to retroactive ratification is upheld, that date preceded by a long period the constitution of Bensider: therefore, unless it is acknowledged that the Commission misused its powers to the detriment of a nonexistent undertaking, the application must be declared inadmissible.

7. In view of all the foregoing considerations, I propose that the Court declare inadmissible the application lodged at the Registry on 25 February 1984: as Egards Bensider società a responsabilità limitata, because of failure to fulfil the procedural requirements laid down in the second paragraph of Article 33 of the ECSC Treaty; as regards the six Belgian undertakings, because of their failure to comply with the procedural time-limits.

1 Translated from the Italian.