Opinion of Advocate General Gulmann delivered on 8 July 1992

1 Original language: Danish.

2 OJ 1989 L 383, p. 125.

3 The provisions arc worded as follows:Article 4 If the Commission discovers that products covered by the arrangements laid down in Article I arc being importeti into the Community at such prices that they cause or threaten to cause serious injury to Community producers of like or directly competing products, the levies applied in the Community may be partly or completely re-established for the products concerned with regard to the countries or territories causing the injury. Such a measure may also be taken in the case of serious injury or the threat of serious injury to a specific region of the Community. Article 5 1. In order to apply Article 4, the Commission mav decide, by adopting a Regulation, to re-establish the normal levv for a given period. 2. Should a Member State ask the Commission to take such action, the Commission shall take a decision within a maximum of 10 working days of receipt of the request ....

4 The applicants claim that that failure to act is an infringement of the EEC Treaty, Regulation (EEC) No 2777/75 of the Council of 29 October 1975 on the common organization of the market in poultrymeat (OJ 1975 L 282, p. 77) and Council Regulation No 3899/89, see footnote 1.

5 See the Court's judgment in Case C-70/88 European Parlament v Council [1990] ECR I, p. 204.

6 See the Court's judgment in European Parliament v Council (Common transport policy) [1985] ECR 1513. paragraph 36.

7 See the Court's judgment in Case 15/70 Chevalley v Commission [1970] ECR 975.

8 See the judgment in Joined Cases 5 to 11 and 13 to 15/62 San Michèle v High Authority [1962] ECR 449, where the Court stated:In these circumstances, the applicants had no legitimate grounds for complaining of a failure to act which no longer existed at the time the actions were brought, since their legal protection was sufficiently assured by the possibility of making an application for annulment of the Decision under Article 33 of the Treaty. Consequently, the actions for failure to act must be ruled to be inadmissible owing to lack of legal interest.

9 See, for example, the Court's judgment in Case 25/85 Nuovo Campsiăer [1986] ECR 1531, paragraph 8, and Advocate General Darmon's Opinion in that case pp. 1535 and 1536.

10 See inter aha the Court's judgments in Case 48/65 Lutticke [1966] ECR 19; Case 42/71 Nordgelreide [1972] ECR 105; and Case 125/78 GEMA [1979] ECR 3173.

11 Sec the judgment in Joined Cases 5-11 and 13-15/62 San Michèle [1962] ECR 449, cited above in footnote 7.

12 See inter aha the Court's judgments in Case 30/59 De Gezamenlijke Steenkolenmijnen in Limburg [1961] ECR 1; Case 42/71 Nordgetreide [1972] ECR 105; Joined Cases 97/86, 193/86, 99/86 and 215/86 Astem; and Case C-87/99 Société Nationale Interprofessionnelle de la Tomate (Sonito) [1990] ECR I-1981.

13 In other words it is not every refusal to adopt a measure which can be challenged under Article 173. Thus a refusal to adopt provisional measures, for example, which arc not in themselves open to challenge under Article 173 cannot be made the subject of an action for annulment. Conversely there is nothing to prevent an action being brought for failure to act, on the basis that the Council or the Commission, in infringement of the Treaty, has failed to adopt such a provisional measure, see the Court's judgment in Case 302/87 Parliament v Council [1988] ECR 5615 (the Comitology case), paragraph 16. There is no reason in the present case for the Court to hold whether an express refusal in those circumstances too debars the applicant from bringing an action for failure to act. In paragraph 15 below I snail state my view on an analogous problem in relation to the situation where a refusal may not be reviewed under Article 173 as a result of the applicant's lack of locus standi.

14 See the Court's judgment in Case 302/87 European Parliament v Council [1988] ECR 5615.

15 For a later modification of that premise see the judgment in Case C-70/90 European Parliament v Council [1990] ECR 2041.

16 A distinction must be drawn between the present situation, where die Commission refuses to adopt the requested measure, and a situation in which the Commission, adopts the measure requested by the applicant after an action for failure to act has been lodged, even if the content of the measure is different from that requested by the applicant. See the Opinion of Judge David Edward in Case T-24/90 Automec v Commission [1992] ECR II-2223, at II-2226, and Case T-28/90 Asia Motor France and Others v Commission [1992] ECR II-2285, paragraphs 90 to 96.

17 See, for example, the orders of the Court in Case C-371/89 Emrich [1990] ECR I-1555 and Case C-72/90 Asia Motor France [1990] ECR I-2181, paragraphs 10 and 11, and the judgment in Case 90/78 Granaria [1979] ECR 1081.

18 [1974] ECR 1.

19 See too the Court's judgment in Case 247/87 Star Fruit Company SA [1989] ECR 291, paragraph 13.

20 See, on the same argument, the Opinion of Advocate General Dutheillet de Lamothe in Case 15/71 Mackprang v Commission [1971] ECR 797.

21 That is not to say that individuals do not in certain cases have the possibility of bringing an action for failure to act even if they could not have challenged the measure in question under Article 173 where a preparatory measure is involved.

22 See inter alta the judgments in Case 162/78 Wagner v Commission [1979] ECR 3467, paragraph 16, and Case 307/81 Alusuisse v Council and Commission [1982] ECR 3463, paragraph 7.

23 See the judgment in Joined Cases 16/72 and 17/62 Producteurs de Fruits v Council [1962] ECR 471, especially p. 479.

24 See inter alia the judgment in Joined Cases 239/82 and 275/82 Allied Corporation v Commission [1984] ECR 1005, paragraphs 11 and 12.

25 See the Court's judgment in Joined Cases 16/62 and 17/62 Producteurs de Fruits v Council [1962] ECR 471, especially p. 478.

26 See inter alia the Court's judgments in Case 6/68 Zuckerfabrik Watenstedt v Council [1968] ECR 409; Case 307/81 Alusuisse v Council and Commission [1982] ECR 3463, paragraph 11; and Case 26/86 Deutz and Geldermann [1987] ECR 941, and the Court's order in Joined Cases C-232/91 and C-233/91 Petridi and Another v Commission [1991] ECR I-5353.

27 Sec, for example, the Court's judgments in Case 25/62 Plaumann v Commission [1963] ECR 95, especially p. 107; Case 231/82 Spiiker v Commission [1983] ECR 2559, paragraphs 8-10; ana Case 147/83 Binderer v Commission [1985] ECR 257, paragraph 257. In other words that docs not mean that it would be possible to determine definitively those who would be concerned bv the regulation when it was adopted. Sec the Court's judgments in Joined Cases 106/83 and 107/83 Tocpfer v Commission [1965] ECR 405, p. 411; Joined Cases 41/70, 42/70, 43/70 and 44/70 International Fruit Company v Commission [1971] ECR 411, paragraphs 16-21; Case 88/76 Sortete pour l'Exportation des Fruits [1977] ECR 709; and Case 264/81 Sauma v Commission [1984] ECR 3915, paragraph 11.

28 [1990] ECR 719.

29 [1990] ECR 781.

30 That argument to the effect that the re-establishment of import levies can take place for a single region of the Community is not necessarily based on a correct interpretation of Article 4 of Regulation No 3899/89. A more obvious way to interpret the provision is that serious injury in one region of the Community can prompt the re-establishment of import levies with effect for the wnole Community. It is, however, not necessary as far as the problem under discussion is concerned to decide which of those two interpretations is correct.

31 For a study of the Court's practice see in particular Advocate General Mischo's Opinion in the Nashua case (Joined Cases C-133/87 and C-150/87 [1990] ECR 719) and Advocate General Jacob's Opinion of 21 March 1991 in Case C-358/89 Extramei Indiarne v Council [1991] ECR I-2501.

32 Sec the above cited paragraphs in the Court's judgments in the Nashua and Gestetner cases and the judgment in Joined Cases 239/82 and 275/82 Allied Corporation and Others v Commission [1984] ECR 1005.

33 See inter aha the Court's judgment in Case 113/87 NTN Toyo Bearing Company v Council [1979] ECR 1185, paragraph 9, and those in Joined Cases C-304/86 and C-185/87 Emtal [1990] ECR I-2939, C-305/86 and C-160/87 Neotype Tcchmashexport [1990] ECR I-2945 and in Case C-157/87 Electroimpex [1990] ECR I-3021.

34 See the Court's judgments in Joined Cases 239/82 and 275/82 Allied Corporation and Others v Commission [1984] ECR 1005, paragraph 15; Case 307/81 Alusuisse Italia v Council and Commission [1982] ECR 3463, paragraph 9; and the Court's order in Case 279/86 Sermes v Commission [1987] ECR 3109, paragraphs 16-18. The Court's judgment in Case C-358/89 Extramet Industrie v Council [1991] ECR I-2501 demonstrates that special circumstances can also justify the admissibility of actions brought by importers which do not meet the above criteria. The Court ruled in that judgment that there was a set of factors constituting such a situation which is peculiar to the applicant and which differentiates it, as regards the measure in question, from all other traders. Extramet Industrie was by far the largest importer of the product at issue in the case and, at the same time, the end-user of that product. The only producer of the product within the Community was also Extramet's main competitor in the market for the finished product, and Extramet nad experienced difficulties in obtaining supplies from that producer. In view of these special circumstances, the Court found that Extramet's business activities were seriously affected by the contested regulation and accepted that the application was admissible on that ground.

35 [1975] ECR 401.

36 [1982] ECR 3463.

37 [1990] ECR I-2477.

38 [1982] ECR 3463.

39 See the Court's judgment in Case 153/73 Holtz & Willemsen v Council [1974] ECR 675, where the Court stated as follows:It would be contrary to the autonomy of this action as well as to the efficacity of the general system of forms of action established by the Treaty to regard as a ground of inadmissibility the fact that in certain circumstances an action for damages could lead to a result similar to that of an action for failure to act under Article 175. Such an action differs from an action for failure to act in that its end is not the adoption of a particular measure but compensation for damage caused by an institution in the performance of its duties (paragraph 4).

40 See footnote 11.

41 See in this connection the Court's judgment in Case 246/81 Lord Bethell v Commission [1982] ECR 2277, paragraph 16.