Report for the Hearing delivered in Case 247/87

I — Summary of the facts

The applicant, which has its headquarters in Brussels and specializes in particular in the importation and exportation of fresh bananas, took the view that the system for supplying the banana market in France was incompatible with Article 30 et seq. of the EEC Treaty and with Article 2 of the Lomé Convention of 28 February 1975. It therefore requested the Commission, by a letter dated 17 April 1987, to initiate the procedure under Article 169 of the EEC Treaty against the French Republic for a declaration that the system was incompatible with the aforementioned provisions, to require the French Republic to abolish import quotas on bananas originating in non-member States which were in free circulation in the Community and to pay compensation to it for the damage it had suffered as a result of the import bans applied by that Member State.

By a letter dated 4 May 1987, the Commission acknowledged receipt of the applicant's letter and informed it that it would adopt the measures needed in the matter.

II — Written procedure and conclusions of the parties

After receiving that communication the applicant brought this action under Articles 173 and 175 of the EEC Treaty by an application lodged at the Court Registry on 14 August 1987.

By a document lodged on 9 November 1987 the Commission requested the Court under Article 91 (1) of the Rules of Procedure to rule on the admissibility of the application without considering the substance of the case. The Commission claimed that the application should be dismissed as inadmissible and that the applicant should be ordered to pay the costs.

Upon application to intervene lodged on 28 December 1987, the French Republic was given leave, by order of 20 January 1988, to intervene in support of the Commission's conclusions.

By a statement lodged on 1 March 1988, the French Republic claimed that the application was inadmissible.

It its observations lodged on 31 March 1988, the applicant claimed that the application was admissible and that the Commission should be ordered to pay the costs.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court, by decision of 13 July 1988, opened the oral procedure on the objection without any preparatory inquiry.

By a decision of the same date the Court assigned the case to the Second Chamber.

III — Submissions and arguments of the parties on the admissibility of the application

In support of its objection, the Commission contends in essence that the application is inadmissible under the second paragraph of Article 173 because the applicant fails to specify the act of the Commission which it seeks to have declared void.

The application is also inadmissible, in the Commission's view, under the third paragraph of Article 175, the wording of which excludes the possibility of an action for failure to act being brought by a private individual for failure to initiate the procedure provided for in Article 169 against a Member State.

The French Republic maintains, in particular, that the application is inadmissible under Article 173 inasmuch as it is directed against the Commission's reply of 4 May 1987 since that reply is clearly not a decision within the meaning of the second paragraph of Article 173 but merely a holding letter which deals neither with the subject-matter of the request nor with the substance of the case.

In any event, an application for a declaration that an act is void brought in respect of an act by which the Commission ruled on a request for the initiation of the procedure provided for in Article 169 is inadmissible because the preliminary stage prior to the bringing of any proceedings before the Court does not involve any act on the part of the Commission having binding force.

The application is also inadmissible under the third paragraph of Article 175 since the measure which the Commission has failed to adopt in this regard cannot be considered, according to the applicant, as an act which could have been addressed to it within the meaning of that provision.

The applicant leaves it to the Court to decide whether its application under the second paragraph of Article 173 is admissible.

It maintains that its application is admissible under the third paragraph of Article 175. The essential object of an action for failure to act brought by a private individual is the adoption of a legal act establishing that a Member State has failed to fulfil its Community obligations. The Commission may bring the matter before the Court at the end of a precontentious procedure in which the call upon the Member State to submit its observations and the reasoned opinion constitute legal acts adopted with regard to the Member State at the instance of the private individual directly concerned in the commencement of the precontentious procedure. The Commission's failure to set in motion a procedure for establishing that a Member State has failed to fulfil its obligations must open the way for a private individual to bring an action for failure to act under the third paragraph of Article 175.

1 Language of the case: French.