Opinion of Advocate General Gulmann delivered on 15 September 1992

1 Original language: Danish.

2 OJ, English Special Edition 1959-1962, p. 46. These rules were approved by the Commission in its decision of 5 Mav I960 (OJ, English Special Edition 1959-1962, p. 45).

3 OJ 1975 L 193, p. 37.

4 See Annex XII to the application.

5 See points (a) and (b) in ENU's letter of 21 December 1990 (Annex XII to the application).

6 See point (d) in ENU's letter of 21 December 1990 (Annex XII to the application).

7 At point (d) of its letter of 21 December 1990, ENU, with regard to the special course of action, states, inter alia, as follows:... This measure alone will make it possible to reduce the serious harm which ENU has unlawfully been constrained to suffer up to the present, in view of the fact that the basic solution, following from strict compliance with Community law, has not had all its intended effects. This special course of action, capable of being implemented rapidly, ought to involve the acquisition by the Agency of the uranium stocks at present held by ENU. This solution, advocated by ENU, corresponds in any case to the simple exercise by the Agency of its right of option on the purchase of uranium offered to it by ENU ....

8 See page 7 of ENU's reply (French translation).

9 See points 16 and 29(b) in ENU's reply.

10 See point 9 in tlie Commission's rejoinder.

11 See ENU's reply at point 2(a), (b), (d) and (g) and, in particular, at points 19, 20 and 27.

12 See, by way of example, points 45, 46 and 49(3) of ENU's letter of 21 December 1990, along with the conclusions in that letter, in which the company requested the Commission to adopt the measures earlier referred to with a view to rectifying the unlawful conduct of the Agency and revising the manner in which the Commission itself examined the question.

13 See point I of ENU's reply, p. 6.

14 The Commission expressed this opinion in its defence (point 2). However, it is possible that the Commission's rejoinder introduces a modification to this (sec point 9(4)).

15 See, inter alia, judgment in Case 17/57 Gezamenlijke Steenkolenmijnen in Limburg v High Authority [1959] ECR 1, Opinion of Advocate General Lenz in Case 13/83 Parliament v Council [1985] ECR 1513, in particular point 3.1., and the Opinion of Advocate General Darmon in Case 25/85 Nuovo Campsider v Commission [1986] ECR 1531, in particular point 6, along with the Court's judgment in that case, at paragraph 8 of which it stated that an action for failure to act must De preceded by formal notice and that the subject-matter of that notice must be set out in such a manner as to make clear what decision the Commission should have taken under Community law (emphasis added).

16 See the Court's judgment in Case 25/85 Nuovo Campsider, cited above, at paragraph 8.

17 The second paragraph of Article 146 of the Treaty provides that any natural or legal person may ... institute proceedings against a decision addressed to that person or against a decision which, although in the form ot a regulation or a decision addressed to another person, is of direct and individual concern to the ţormeir (emphasis added).

18 See points 17 to 19. The Court has not yet delivered its judgment in these cases.

19 See, inter alia, the Court's judgments in Case 25/62 Plaiimann v Commission [1963] ECR 95 and in Case 75/84 Metro SB-Großmarkte v Commission [1986] ECR 3021, at paragraph 20.

20 ENU has areucd in this connection that this period must be calcu-latcd from 8 December 1989 to 21 December 1990. the date on which ENU submitted its formal request that the Commission take action.

21 [1971] ECR639.

22 The Commission first of all claims that ENU failed to comply with Article VIII(3) of the Statutes of the Agency, which provides as follows: Any act of the Agency referred to in the second paragraph of Article 53 of the Treaty may be referred to the Commission by the party concerned within fifteen days of notification being received, or, failing such notification, within fifteen days following publication. Failing both notification and publication, the period shall run from the day on which the party concerned learns of the act. The Commission has pointed out that the Agency did not refer any act to the Commission within the 15 days prior to ENU's letter of 21 December 1990, since the last letter from the Agency was dated 8 November 1988. As there was accordingly no act which could have been referred to the Commission, the latter was not under any obligation to give a decision. The Commission went on to point out that in so far as ENU considered the original reply from the Agency to be a negative decision, that decision ought to have been referred to the Commission within the prescribed periods. Secondly, the Commission has argued that inasmuch as the Agency's act must, according to ENU, be treated as a permanent act, the same permanent legal effect must be attributed to the Commission-'s letter of 8 December 1989 and for that reason the Commission cannot be required to give a fresh decision.