Opinion of Advocate General

Mr President,

Members of the Court,

1. Four German undertakings have brought these two cases against the Commission for a declaration that the Commission has failed to fulfil its obligations by not re-establishing certain import levies on poultrymeat. The first case is an action for failure to act brought under Article 175 of the Treaty and the second case is an action for annulment brought under Article 173.

2. The background to the cases can be summarized as follows:

3. The Commission did not reply to that letter and the applicants then brought an action, by application lodged at the Court Registry on 16 January 1991, under Article 175 of the Treaty (Case C-15/91). The applicants claimed that the Commission had unlawfully failed to act by omitting to re-establish completely the levies on geese and ducks originating in Poland and Hungary, which were reduced by 50% by Council Regulation No 3899/89.

4. The Commission bases its objections of inadmissibility on the fact that in both cases the applicants are seeking a declaration that the Commission is obliged to issue a new regulation re-establishing the normal levies. It thus claims that the applicants are asking for a general legal measure to be adopted which does not concern them directly and individually and that neither the third paragraph of Article 175 nor the second paragraph of Article 173 allow the Court to entertain such claims.

5. The applicants claim that the measure which the Commission is obliged to adopt is of direct and individual concern to them and that the Court has jurisdiction to hear both the case brought under Article 175 and that brought under Article 173. The applicants do not believe that the action for annulment can be held inadmissible merely because an action for failure to act is pending. Moreover, if a choice must be made between the two actions the applicants do not attach great significance to whether the Court hears the action for failure to act or the action for annulment.

6. The cases provide the Court with an opportunity to state its view on certain questions concerning the relationship between Article 175 and Article 173. In addition the cases give the Court an opportunity to consider whether its case-law in the antidumping area concerning a private individual's entitlement to bring an action for annulment is material to the individual's entitlement to bring an action in other legal areas.

Can an action on the same set of facts be examined by the Court under both Article 173 and 175?

7. As is clear from the foregoing, the present applications in substance concern one and the same question, namely whether it follows from Article 4 of Regulation No 3899/89 that the Commission is obliged to re-establish completely the import levies for ducks and geese imported from Hungary and Poland.

8. As an introduction, let me recapitulate the relevant content of Article 175 and Article 173.

9. The Court has stated that there is a close relationship between the right of action given in Article 173, which allows unlawful measures of the Council and Commission to be declared void, and that based on Article 175, which may lead to a finding that the failure by the Council or Commission to adopt certain measures is contrary to the Treaty. In its judgment in the Chevalley case the Court stated that The concept of a measure capable of giving rise to an action is identical in Articles 173 and 175, as both provisions merely prescribe one and the same method of recourse. In those dicta the Court would appear to wish to emphasize the analogous nature of the two provisions and the need to construe the provisions in a way that ensures that they complement each other appropriately. The starting point for interpreting the two provisions must thus be, on the one hand, to prevent the development of an area in which the institutions could perpetuate a situation that was contrary to the Treaty without the citizen having any opportunity of challenging it, and, on the other hand, to set a boundary between the two provisions so that one and the same set of facts is not reviewed under both articles.

10. In the present cases the subject-matter is, as stated, the same, whether review takes place under Article 173 or under Article 175 and the basis and extent of the review must thus also be the same. Two actions whose subject-matter is in substance the same should not, for reasons of procedural economy, be accepted by the Court.

11. I mention that circumstance in connection with the fact that the cases before the Court show that there may be circumstances which make it hard for the applicants to decide in advance which type of case should be chosen.

Did the applicants call upon the Commission to act, as required under the second paragraph of Article 175?

12. It is apparent from the second paragraph of Article 175 that those bringing an action for failure to act must first have called upon the Commission to take the decision that those concerned believe it is obliged to take. When it is thus called upon to act, it should be possible for the Commission to fulfil its obligation to act if it agrees with those concerned that there is such an obligation. In the Court's case-law weight is attached to the fact that when they call upon the Commission to act, those concerned should indicate their intention to bring an action for failure to act if the Commission does not take the decision requested.

Has the action for failure to act become devoid of subject-matter as a result of the Commission's express refusal?

13. As explained in the foregoing, the real problem in both the present cases is whether the Commission was under an obligation to act which it has failed to fulfil. At first sight it would seem most natural for such a review to take place in the context of an action for failure to act under Article 175.

14. In a number of cases the Court has held inadmissible actions for failure to act where the Commission has defined its position within two months of being so called upon in the form of an express refusal to adopt the requested measure. The Court has further held inadmissible an action for failure to act where the Commission's refusal was given only after the expiry of the two months' time-limit, the Court pointing out that that definition of its position was given before the action for failure to act was instituted.

15. Some doubt as arisen as to whether the Court has changed its case-law as described above. Such doubt is caused by a paragraph in the so-called Comitology case. The Court stated:

16. In my opinion the present cases do not give rise to a need for a decision on that issue. In these cases there is a situation on which the Court has not previously given a decision, namely that the Commission's express refusal to adopt the requested measure was given only after the action for failure to act had been lodged. Regardless of how the Court otherwise intends to deal with express refusals given before an action for failure to act is instituted, in my view a refusal which is only communicated to the applicants after an action for failure to act has been lodged should not lead to the case being held inadmissible.

Should the condition concerning an individual's entitlement to bring an action under the third paragraph of Article 175 be interpreted by analogy to the second paragraph of Article 173?

17. A natural or legal person may, under the third paragraph of Article 175, only complain that an institution of the Community has failed to address an act to him. The question arises whether the third paragraph of Article 175 should be interpreted by analogy with the second paragraph of Article 173 so that a natural or legal person can also complain against an institution's failure to address a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.

18. There are decisions which can be used to support a narrow interpretation of the third paragraph of Article 175, to the effect that it includes only failure to adopt measures of which the natural or legal person in question would be the direct addressee. They are not decisions, however, which can be taken as definitive support for such a narrow interpretation in my view. They are decisions whose outcome was not likely to have been different even if the third paragraph of Article 175 was interpreted in accordance with the second paragraph of Article 173.

19. Many grounds can be adduced for preferring a broad interpretation of the third paragraph of Article 175. First, such an interpretation accords with the Court's basic view that Article 173 and Article 175 should be regarded as an expression of one and the same legal remedy. Secondly such an interpretation implies additional legal protection for the natural and legal persons in question, which is logical since there does not seem to be any reason for treating natural and legal persons differently in principle in relation to their entitlement to bring actions under Article 173 and Article 175. Thirdly, a narrow interpretation would lead, in my view, to an undesirable legal position. A private individual to whom a measure is of direct and individual concern but who is not its addressee would then be able to challenge an institution's express refusal when the latter was called upon to act under the second paragraph of Article 173 but would be without a legal remedy if the institution simply failed to reply. If the entitlement of a natural or legal person to bring an action under Article 175 was more restricted than under Article 173 that could, at least in theory, prompt an institution, contrary to what good administrative practice dictates, to fail expressly to inform those in question that it does not agree that there is an obligation to act under Community law.

Do the applicants satisfy the conditions for bringing an action under the third paragraph of Article 175?

20. There is no doubt that a measure which the applicants request should be adopted for the purpose of having the full import levies on ducks and geese re-established must, hypothetically, be adopted in the form of a regulation. That is the result of several factors. First, such re-establishment would presuppose an amendment to Regulation No 3899/89 and thus a measure of the same legal status. Secondly, there would be no point in addressing an individual decision to the applicants since the import levies are not payable by the applicants, but by the importers of ducks and geese. Thirdly, Article 5(1) of Regulation No 3899/99 expressly provides that if the levies are re-established it should be done by regulation. The applicants do not, moreover, appear to dispute the fact that in their action they are seeking to obtain the adoption of a regulation.

21. It seems to me clear, however, that a regulation concerning the re-establishment of import levies on ducks and geese is a true regulation and not a decision of direct and individual concern to the applicants if the Court's well-established interpretation of those terms is borne in mind.

22. The applicants have, however, claimed that in its judgments in the anti-dumping area the Court has extended the entitlement of private individuals to bring actions and that the principles established on this point are also applicable in a situation such as that before the Court.

23. The applicants are correct in their view that an important factor in the Court's case-law in the anti-dumping area is that it is accepted that a regulation may at one and the same time be of general application, that is to say apply to categories of persons regarded generally and in the abstract, yet still have a number of individual addressees.

24. In its case-law in the anti-dumping area the Court has stressed that anti-dumping duties are introduced on the basis of the results of a comparative examination of particular undertakings' production and export prices. The Court has held that despite being legislative in nature it is conceivable that provisions in such a regulation may be of direct and individual concern, in the sense of the second paragraph of Article 173, to the undertakings who, in the regulation, are alleged to be dumping. The Court has accepted applications brought by producers, exporters or importers who have been identified and individualized in one way or another by the regulation in question.

25. In the light of the above review I believe that it can be concluded that the present situation can be distinguished from the antidumping cases on significant points.

26. The applicants have further claimed (a) that Article 4 of Regulation No 3899/89 obliges the Commission to adopt protective measures in cases where Community producers are caused injury, and (b) that the case-law of the Court indicates that those whom such protective measures are intended to protect must be entitled to bring an action in order to compel the adoption of the protective measures in question.

27. Finally the applicants claimed (a) that it follows from the Court's case-law that private individuals should be able to bring a case before the Court if they do not have the possibility of bringing a case before a national court, and (b) that no such possibility is available to the applicants in the present case since no measure addressed to them has been adopted pursuant to the regulation at issue in the case.

28. In paragraph 14 above I mentioned that according to the case-law of the Court an action for annulment may only be brought against a refusal to adopt a measure provided the measure which either the Council or the Commission refuses to adopt could be challenged by way of an action for annulment.

Conclusion

29. I accordingly suggest that the Court should hold both applications inadmissible and order the applicants to pay the costs of the case.

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.