Opinion of Mr Advocate General Darmon

Mr President,

Members of the Court

1. The applicant, Nuovo Campsider (hereinafter referred to as Campsider) is an association of undertakings within the meaning of Article 48 of the ECSC Treaty composed of Italian steelmakers using electric furnaces. They are particularly dependent on trends in the Community market for ferrous scrap, since scrap is the raw material used by steel mills of that type. From 1983 onwards, because of strong demand in the United States and the rise in the value of the dollar during that period, exports to the United States increased and prices for scrap in the Community rose.

2. It was in those circumstances that Campsider sent the Commission a telex message on 16 November 1984 in which

3. That summary of the circumstances in which the applicant says that the matter was brought before the Commission in accordance with the provisions of Article 35 is sufficient to justify the separate examination of the admissibility of the action. Article 35 of the ECSC Treaty, which lays down rules governing the action for failure to act, provides that where the Commission

4. The Commission submits that the action for failure to act brought by Campsider is manifestly inadmissible on both formal and substantive grounds.

5. For its part, Campsider argues that its telex message to the Commission was clearly intended to elicit an express reply from the latter, inasmuch as it confirmed in writing the position taken by Campsider at the meeting on 12 November.

6. The submissions put forward by the applicant in support of the admissibility of its action are unconvincing.

7. The telex message of 16 November 1984 cannot be regarded as an explicit request addressed by the applicant to the Commission calling upon it, on the basis of Article 35 of the ECSC Treaty, to comply with certain obligations arising out of primary or secondary legislation. As I have pointed out, before the Commission's silence may be taken as an implied decision of refusal it must be possible to infer clearly from the preliminary request not only the decision desired but also the type of procedure initiated by the applicant.

8. For all those reasons, without there being any need to consider the question whether or not the action for failure to act meets other conditions, I propose that the Court:

1 Translated from the French.