C-31/62

3. Procedure Preliminary ruling — Proceedings before a national court or tribunal — —

Request addressed directly to the Court by the parties to those proceedings Inadmissibility —

(EEC Treaty. Article 177)

1. It is clear from the wording and the illegal regulation without thereby general scheme of Article 184, and in in any way calling in issue the

particular from the reference to the regulation itself, which can no longer time limit laid down in Article 173, be challenged because of the expiry that declaration of the inapplic­ of the time limit laid down in Article a

of a regulation is only con­ 173. ability templated in proceedings brought 3. The parties to an action pending before the Court of Justice itself before a national court or tribunal under some other provision of the are not entitled to make a direct Treaty, and then only incidentally request to the Court of Justice for a and with limited effect, and that

1 — Language of the Case: German. 2 — CMLR.

judgment OF 14.12.1962 — JOINED CASES 31 and 33/62

represented by Fritz Modest, Artur Heemann, Renate Menssen, Jürgen Gündisch, Heinz Binder, advocates of the Hamburg Bar, with an address for service in Luxembourg at the office of Félicien Jansen, huissier, 21 rue

Aldringer, applicants,

v

COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY­ , represented by Hubert Ehring, Legal Adviser to the European Executives, acting as

Decision of 15 March 1961 concerning the fixing of a countervailing charge on imports of whole powdered milk into the Federal Republic

of Germany made pursuant to Article 46 of the EEC Treaty (Official Journal of the European Communities No 7 of 27 January 1962, p. 137);

or alternatively for a declaration that the said Decisions do not apply to ap licants;

THE COURT

composed of: A. M. Donner, President, L. Delvaux and R. Rossi (Presidents

of Chambers), O. Riese, Ch. L. Hammes (Rapporteur), A. Trabucchi and R. Lecourt, Judges,

ment of the Federal Republic of Ger­ to duty claiming respectively 247 700 many requested the Commission of the DM and 2 451 20 DM in respect of the European Economic Community to fix, aligned duty for whole powdered milk pursuant to Article 46 of the Treaty, a imported by them. countervailing charge on imports into 6. Both applicants appealed against its territory of whole powdered milk these the first applicant on 5 notices, Member States. coming from other September and the second applicant

on 28 September 1962, to the competent 2. On 15 March 1961 the Commission German authority, using the procedure took a Decision 'fixing a counter­

laid down in paragraphs 228 et seq. vailing charge on imports of whole of the German Tax Code (Reichsab- powdered milk into the Federal Republic gabenordnung) of 22 May 1931. of Germany pursuant to Article 46'. This Decision was published in the 7. In addition, both applicants lodged Official Journal of the European Com­ at the Registry of the Court, on 4 munities No 26 of 13 April 1961, October 1962 in the case of the first p. 595 et seq. applicant and on 9 October 1962 in the case of the second applicant, applications 3. This Decision which, according to the Decisions of the Com­ Article 5 thereof, was only applicable contesting mission of 15 March and 13 December until 31 December 1961, was extended These applications seek the annul­ December 1962 1961.

JUDGMENT OF 14.12.1962 JOINED CASES 31 AND 33/62

General, the Court decided in the relationships between the Community interests of the efficient administration applications are in fact by reason of the of justice to join the two applications general nature of their applicability, submitted to it on the ground of the regulations within the meaning of Article

identical nature of their subject matter 184. In fact these measures are not

and to adjudicate upon their admis­ confined to governing the internal legal

sibility in one and the same decision. and the Member States referred to

After the parties had been heard the therein but establish rights and obliga­

in­ applications may be summarized as decisions which are of direct and

folows: dividual concern to a particular person. Regulations, however, are measures of a A Article 184 of the legislative nature and of general applica­ —

Admissibility under tion create rights and obligations Treaty which

affecting Member States and areimposed in abstracto upon all individuals who In their application which instituted the the applicants base are affected by the system of rules which proceedings, they establish. Thus they are to be their action solely on Article 184 of the distinguished from individual measures Treaty which enables the inapplicability in which find their concrete expression of regulations of the Council and of the the form of decisions which are only of Commission to be invoked in pro­

direct and individual concern to those to ceedings where such regulations are in whom they are directed. issue. They seek to establish that in the present proceedings the conditions as (b) As an example the applicants point

admissibility referred to in that that the for estab­ regards out moreover rules

WÖHRMANN v COMMISSION

and effect and in substance constitute validity of a regulation. This, however, regulations. is prohibited by Article 164 from which The defendant on the other hand main­ it is apparent that the Court is only

tains that the contested Decisions are competent to interpret and apply Com­ indeed decisions within the meaning of munity law. Article 189 of the Treaty, and not (b) The defendant lastly maintains that a regulations. casesuch as the present may only be Regulations are binding in their entirety brought before the Court by means of a and directly applicable in all Member reference to it for a preliminary ruling States. The contested measures are, under Article 177. however, bindingfor and not in Member The applicants’ reply to this argument is States. They are not directly applicable that Article 177 does not guarantee in the Member States since they only them the judicial protection which they confer rights and impose obligations

upon Member States, and not upon are entitled to claim. Only Article 184, by enabling the parties themselves to their nationals. They only gave the

applicants grounds for complaint as the bring the matter before the Court, gives them that guarantee, since it does result of the amendment of the German not contain the restrictions on direct Customs Tariff. applications for annulment imposed by Article 173 2. On the jurisdiction of the Court The defendant replies that the applicants,

(a) The applicants claim that the second by under Article 184 an pursuing condition as regards admissibility under objective which the Treaty only permits Article 184 is satisfied, since in fact them to attain under Article 173, are

Article 184 a party is only permitted to regulations, then they must be decisions invoke the inapplicability of a regulation which are of direct and individual

by way of an incidental step in a main concern to the applicants.

action brought before the Court of In their opinion the period of two

Justice of the Communities. It does not months specified in the third paragraph open the way to a direct application to of Article 173 for the institution of

the Court upon the ground that these proceedings against decisions only runs

are proceedings before a national court from the day on which it became obvious or tribunal. that the contested decisions were of

in the specific form of the notice of. mencement of the period is taken to be assessment to duty. the publication of the contested Decisions Journal' The defendant leaves to the Court's in the 'Official or the date on

discretion the question whether the which they came to the knowledge of

change in the legal basis of the applica­ the applicants, that is to say, at the

tion is admissible. latest, when the Orders amending the

It considers that in any event the German Customs Tariff were published. applications are inadmissible if only

Grounds of judgment

court or tribunal.

Article 184 enables any party, notwithstanding the expiry of the period laid down in the third paragraph of Article 173, to invoke before the Court of Justice, for the purpose of making an application for annulment, the inapplic­ ability of a regulation in proceedings in which it is at issue and to plead the grounds specified in the first paragraph of Article 173.

Because Article 184 does not specify before which court or tribunal the

proceedings in which the regulation is at issue must be brought, the applicants

conclude that the inapplicability of that regulation may in any event be invoked before the Court of Justice. This would mean that there would exist a method of recourse running concurrently with that available under

Article 1.73.

in issue the regulation itself, which can no longer be challenged because of

the expiry of the time limit laid down in Article 173.

It must be stressed that the Treaty clearly defines the respective jurisdictions

of the Court of Justice and of national courts or tribunals. In fact, by virtue

of both Article 177 and Article 20 of the Protocol on the Statute of the

Court of Justice of the European Economic Community, the decision to

jurisdiction to consider the present applications, both insofar as they seek the annulment of the contested measures and insofar as they seek to have them declared inapplicable. It is unnecessary therefore to decide upon the question of the Court's jurisdiction with regard to the exact nature of the

measures of the Commission which are challenged by the applicants.

During the oral procedure the applicants alternatively pleaded Article 173 as ground for their applications. With regard to this it does not appear

JUDGMENT OF 14.12.1962 — JOINED CASES 31 AND 33/62

necessary to examine the admissibility of this change in the legal basis of the requests or the question whether the contested measures are decisions

under the second paragraph of Article 173 of the Treaty, since the applicants did not in fact commence their action within the period laid down by the third paragraph of Article 173.

Since the applications are inadmissible, the applicants must bear the costs.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Raporteu; Upon hearing the parties; Upon hearing the opinion of the Advocate-General:

Having regard to Articles 46, 164, 173, 177, 184 and 189 of the Treaty establishing the European Economic Community; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community;

Having regard to the Rules of Procedure of the Court of Justice of the

European Communities;

Delivered in open court in Luxembourg on 14 December 1962.

on behalf of the President

A. Van Houtte L. Delvaux Registrar President of Chamber

OPINION OF MR ADVOCATE-GENERAL ROEMER <apnote>1</apnote> DELIVERED ON 14 NOVEMBER 1962

Mr President, paragraph of Article 173. Members of the Court, It is in the light of these two provisions

that the admissibility of the applications In the two applications brought against should be examined, and there is certainly the Commission of the EEC by two no need to consider all those specific German undertakings, the debate in problems which the parties have dealt today's oral procedure was confined to with, at times in great detail, namely the the question of the admissibility of the admissibility of changes in the applications and this accordingly pre­

Journal of 27 January 1962 at page 137. independent of the decision of a national The Commission took all these Decisions court or tribunal whether or not to

under the fourth indent to Article 155 refer a question to the European Court of the Treaty. They are measures which of Justice under Article 177. The con­

can in principle be the subject matter ditions for Article 184 to apply are said of applications for annulment. to be met in the present case, because T hese applications were originally foun- the applicants are involved in pro­

ded on Article 184 of the EEC Treaty. ceedings before national courts.

During the oral procedure the applicants It seems to me that this interpretation is pleaded as a subsidiary point the second clearly wrong.

1 — Translated from the German.