Opinion of Mr Advocate General Tesauro delivered on 19 September 1991

1 Original language: Italian.

2 OJ 1990 C 200, p. 3.

3 OJ 1988 L 185, p. 9.

4 Council Regulation (EEC) No 4253/88 of 19 December 1988 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments (OJ 1988 L 374, p. 1).

5 It was precisely in taking this view that the Court considered open to review, for example, a resolution of the European Parliament in that it produced legal effects with regard to third parties (judgment in Case 108/83 Luxembourg v European Parliament [1984] ECR 1945), proceedings of the Council in so far as they were intended to produce legal effects (judgment in Case 22/70 Commission v Council (AETR) [1971] ECR 263), and an oral decision adopted with regard to an official (judgment in Joined Cases 316/82 and 40/83 Kohler v Court ol /Wiíors [1984] ECR 641).

6 Judgment in Case 22/70, above, paragraphs 38-43.

7 Judgment in Case 366/88 France v Commission [1990] ECR 3571, at paragraph 8. For a more detailed examination of the relevant case-law in this regard, see the Opinion I delivered in that case [(1990] ECR 3579, especially paragraphs 7-9).

8 The need to answer this question was dictated by the belief that, although it is true that the choice of the form cannot alter the nature of the measure itself, it is equally true that the absence of a minimum of essential formal requirements, in other words those that make it possible to identify an act as binding, would mean that it could not be relied upon against third parties, even if an examination of the content of the measure revealed it to be capable of producing legal effects. In substance, such acts would in any case have no legal effects as against individuals or Member States, irrespective of the fact that the Commission was empowered to issue binding acts in the sector under consideration.

9 See the judgment in Case 133/79 Sucrimex v Commission [1980] ECR 1299, paragraph 16; the judgment in Case 182/80 Gauffv Commission [1982] ECR 799, paragraphs 16-18; the order in Case 151/88 Italy v Commission [1989] ECR 1255, paragraphs 21-22; and, most recently, the order in Case 50/90 Sunzest v Commission [1991] ECR 1-2917, paragraph 13.

10 Council Regulation (EEC) No 595/91 of 4 March 1991 concerning irregularities and the recovery of sums wrongly paid in connection with the financing of the common agricultural policy and the organization of an information system in this field and repealing Regulation (EEC) No 283/72 (OJ 1991 L 67, p. 11).

11 Council Regulation (EEC) No 729/70 of 21 April 1970 on the financing of the common agricultural policy (OJ 1970 L 94, p. 13).

12 The importance of such i provision is confirmed by the case-law of the Court, which its judgment in Case 267/78 Commission v Italy [1980] ECR 31 stated at paragraph 22 that: Rules which in the national systems of criminal law prevent the communication to certain persons of documents in the criminal proceedings may therefore be relied upon against the Commission in so far as the same restrictions may be relied upon against the national authorities, and accordingly held that Italy had not failed to meet its obligations by not communicating to the Commission information covered by the confidentiality of investigations.

13 Council Regulation (EEC, Euratom) of 29 May 1989 implementing Decision 88/376/EEC, Euratom on the system of the Communities' own resources ABL 1989 L 155, p. 1).

14 Permil mc to add, however banal this remark may appear, thai as a rule, as is right and obvious, the Commission adopts formal acu in accordance with Article 189 of the Treaty when it has competence to do so. On the other hand, acts with an atypical nomen are, in mv opinion, a sign of a certain ambiguity, especially where the subject to be regulated is so typical that it does not require an atypical act. In this regard, let me recall the judgment in Case 322/88 Grimaldi v Fondi des Maladies Professionnelles [1989] ECR 4407, in which the Court stated at paragraph 13 that recommendations are generally adopted by tne institutions of the Community wiien they do not have the power under the Treaty to adopt binding measures or when they consider that it is not appropriate to adopt more mandatory rules. Such an affirmation seems equally valid in principle for the innumerable atypical acts existing in practice.

15 Order of 30 September 1987 in Case 229/86 Brother Industries v Commission [1987] ECR 3757, especially p. 3763.