Opinion of Advocate General Gulmann delivered on 26 November 1992

1 Original language: Danish.

2 OJ 1986 L 376, p. 7.

3 OJ 1988 L 70, p. 27.

4 OJ 1990 L 66, p. 27.

5 Sec the judgment of the Court in Case 22/70 Commission v Council (AETR) [1971] ECR 263 in which the Court declared that an action for annulment must... be available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects.

6 There is a misunderstanding of the content of Article 37(1) of the regulation when Echebastar claims that it follows from that provision that the only consequence of the Commission's letter is that the company's application is carried over for reconsideration in the following year. It is stated expressly in Article 37(1) that an application may be carried over to the following budgetary year once only. As far as Echebastar was concerned, that possibility had therefore already been exhausted with the Commission's decision notified to Echebastar on 22 November 1989. Moreover, it may be noted that any possibility of carriage forward to the following budgetary year does not, in my view, deprive a decision not to grant aid in the current year of its nature of a measure engendering legal effects.

7 See the judgment in Case 8/71 Komponistenverband V Commission [1971] ECR 705, paragraph 2. The same form of words recurs in the judgments m Joined Cases 166 and 220/86 Irish Cement Limited [1988] ECR 6473 and in Joined Cases C-15 and 108/91 Josef Buckl & Söhne and Others V Commission [1992] ECR I-6061, paragraph 17.

8 It may be noted that a decision which is adopted only after proceedings are brought can, in my view, only have the result that there is no need to give judgment in the case in so far as the applicant has thereby received what he wished for. See the judgment in Case 377/87 Parliament V Council [1988] ECR 4017 (budgetary procedure), and my Opinion delivered on 8 July 1992 in Joined Cases C-15 and 108/91 Josef Buckl & Söhne at section 16. In the meantime the Court has declared in its judgment in that case that even a decision refusing the legal act desired by the applicant, adopted after the initiation of the action for failure to act, implies that there is no need to proceed to judgment in the case.

9 In its judgment in Joined Cases 5 to 11 and 13 to 15/62 San Michele v High Authority [1962] ECR 449 the Court stated, with regard to an action for failure to act under the ECSC Treaty that:it is not disputed that the decision reached the applicants before they brought their action for failure to act. 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 sufficiendy 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.

10 Judgment in Case 4/69 Lütticke v Commission [1971] ECR 325. oaraeraoh 6.

11 See lhe judgment in Case 153/73 Holtz & Willemsen v Council [1974] ECR 675, paragraph 4.

12 See the judgment in Case 5/71 Zuckerfabrik Schöppenstedt y Council [1971] ECR 975, in which the Court stated inter alia in paragraph 3 that the action for damages ... differs from an application for annulment in that its end is not the abolition of a particular measure, but compensation for damage caused by an institution in the performance of its duties.

13 [1963] ECR 95. In that judgment the Court stated as follows:the contested decision has not been annulled. An administrative measure which has not been annulled cannot of itself constitute a wrongful act on the part of the administration inflicting damage upon those whom it affects. The latter cannot therefore chum damages by reason of that measure. The Court cannot by way of an action for compensation take steps which would nullify the legal effects of a decision which, as stated, has not been annulled.

14 [1986] ECR 753.

15 See paragraph 30.