C-48/65

JUDGMENT OF THE COURT 1 MARCH 19661

Alfons Lütticke GmbH and Others v Commission of the European Economic Community2

Case 48/65

Summary

Member States of the EEC — Failure to fulfil an obligation arising under the Treaty — Application to the Commission to initiate the procedure provided for in Article 169 of the EEC Treaty — Refusal of the Commission — Application for annulment — Inadmissibility

An application for the annulment of a admissible, since the initiation of this pro­ measure by which the Commission has cedure is part of the administrative stage arrived at a decision on an application to thereof and no measure taken by the Com­ initiate the procedure laid down to deal mission during this stage has any binding with the failure of a Member State to fulfil force. an obligation under the EEC Treaty is in­

COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, represented by its Legal Adviser, Jochen Thiesing, acting as Agent, with an address for service in Luxem­ bourg at the office of Henri Manzanarès, Secretary of the Legal Department of the European Executives, 2 place de Metz,

defendant,

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

JUDGMENT OF 1. 3. 1966 — CASE 48/65

Application, principally, for the annulment of a decision of the Commission of the EEC and, alternatively, against the failure of that body to act, each application concerning the imposition, by the Federal Republic of Germany, of a turnover equalization tax on dairy products imported after 1 January 1962,

THE COURT

I — Facts paragraph of Article 175 of the EEC Treaty declaring that as from 1 January The facts may be summarized as follows: 1962 the imposition by the Federal Re­ The applicants are importers specializing in public of Germany of a turnover equal­ powdered milk and other dried milk prod­ ization tax of 4% on the importation of ucts, (tariff heading 0402 of the Common powdered milk and other dried milk Customs Tariff) which they import mainly products (tariff heading 0402 of the from Belgium, France and the Netherlands. Common Customs Tariff of the Euro­ On several occasions between 19 December pean Communities) constitutes an in­ 1962 and 1 July 1963 they informed the fringement of the prohibition on dis­ EEC Commission that, in their opinion, crimination set out in Article 95 of the the imposition by the Federal Republic of Treaty; Germany since 1 January 1962 of a turn­ 2. To take a decision initiating the proce­ over equalization tax on imported powdered dure provided for in Article 169 of the milk products was contrary to the EEC Treaty against the Federal Republic of Treaty. Germany, in order to secure the aboli­ As their wishes and proposals did not result tion, as from 1 January 1962, of the in any action being taken by the Commis­ turnover equalization tax on the prod­ sion against the Federal Republic of Ger­ ucts set out above under 1; many, the applicants made on 15 March To take a preliminary decision giving the 1965 a formal application to the Commis­ Federal Republic of Germany the op­ sion within the meaning of the second portunity to submit its observations and paragraph of Article 175 of the Treaty to act in accordance with the second establishing the EEC. paragraph of Article 169 if this State In this letter, received by the Commission does not comply with the opinion of the on 17 March 1965, the advocate for the Commission within the required period; applicants requested the Commission: 3. To keep my clients informed as to the '1. To take a decision pursuant to the first decisions requested under 1 and 2';

Subject: Levy of a turnover equalization tax on powdered milk and other dried milk products (tariff heading No 0402) imported into the Federal Republic of Germany

Ref: Your application of 15 March 1965, under the second paragraph of Article 175 of the EEC Treaty, calling upon the Commission to act

Dear Sir,

By promulgating on 31 March 1965 the law making the sixteenth amendment to the law on turnover tax (Umsatzsteuergesetz) of 26 March 1965 (BGBl. I, p. 156), the principal effect of which was to lower, as from 1 April 1965, the rate of the turnover equalization tax on powdered milk from 4% to 3%, the Federal Republic of Germany put an end to the infringement of the first paragraph of Article 95 of the Treaty, which the EEC Commission had noted and criticized. The Commission has therefore ceased to insist that the Federal Republic of Germany reduce the rate of the tax in question retroactively to 1 January 1962, in particular as this rate has clearly been taken into consideration in fixing the countervailing charge provided for in Article 46 of the EEC Treaty on the importation of powdered milk other than skimmed milk and, in addition,—since the implementation of Regulation No 13/64 of the Council on the progressive establishment of a common organization of the markets in milk and dairy products (1 November 1964)—in fixing the levies provided for in Article 2 of Regulation No 13/64 of 5 February 1964 (Official Journal p. 549/64).

The Commission is unable to share your opinion that the turnover equalization tax imposed by the Federal Republic of Germany on powdered milk constitutes an infringe­ ment of Article 95 of the EEC Treaty and that the Commission must therefore require its withdrawal in toto. The Commission is of the opinion that the Federal Republic has just adapted the rate of the turnover equalization tax on powdered milk to the tax burden on turnover borne indirectly by powdered milk from the domestic market. The Commis­ sion considers therefore that further intervention is unnecessary.

On 12 July 1965 the applicants lodged the Article 91 of the Rules of Procedure; present application at the Court Registry. — in the alternative, give no ruling on the admissibility of the application until the II — Conclusions of the parties main action be ready for hearing; — in the further alternative, declare that In their application, the applicants claim the application is admissible'. that the Court should: During the oral procedure the applicants '1. Annul the decision of 14 May 1965 claimed that, even if their application be addressed to the applicants (and notified declared inadmissible, the defendant should on 17 May 1965); be ordered to pay the costs since they had 2. In the alternative, declare that the failure been misled by the equivocal nature of the of the Commission of the EEC to act letter of the defendant of 14 May 1965. regarding the imposition by the Federal Republic of Germany of a turnover III — Submissions and arguments of equalization tax on the importation of the parties with regard to the powdered milk products (tariff heading objection of inadmissibility 0402 of the Common Customs Tariff) after 1 January 1962 and its failure to act following the request made by the The defendant considers that both the prin­ applicants on 15 March 1965, constitute cipal conclusions and those in the alter­ native are inadmissible. an infringement of the Treaty; 3. Order the Commission of the EEC to pay the costs'. A — The principal conclusions

signed by the Director-General concerned the defendant's argument totally disregards in his own name; it bears a reference from Article 27, according to which the Com Directorate-General IV and, opposite the mission may authorize officials, on an date, the initials of the draftsman and individual basis, to take such measures as typist, from which it emerges that it was are necessary to implement its decisions. drafted in a department of the Directorate- The argument as to form is thus insufficient General for Competititon. to challenge the fact that the letter of 14 Moreover, the letter was signed by an May 1965 constitutes a decision. official of the Commission in his own name Moreover, the nature of a measure is not and not, as required by the third paragraph determined by the intentions of its author of Article 12 of the rules of procedure of the and it is thus necessary to examine the con Commission, by the President or another sequences of the communication from the member of that body empowered to do so Commission for its addressee. under Article 24 of those rules. The Commission takes its decisions, in The content of the letter of 14 May 1965 accordance with the Treaty, by the majority laid down in Article 163. The decisions are The defendant maintains that it is impos binding in their entirety on the addressees sible to conclude from the content of the

information. Article 169 has no legal consequences as The fact that the departments of the Com regards its addressee. It is neither binding mission sent the letter 'express', in order to on the addressee nor does it authorize it to respect the period of two months provided act in a specific manner and it contains no for in the second paragraph of Article 175 binding statement as to the existence or of the Treaty, does not enable any conclu nonexistence of a subjective right. What

Article 169. This was not the case in this The applicants maintain that the Directora instance. Article 169 provides that the te-General for Competition was in fact Commission shall deliver a reasoned acting in the name of the Commission, as opinion if it considers that a Member State it was moreover obliged to do. In legal is failing to fulfil an obligation under the terms it is unimportant whether the Treaty. Director-General for Competition, to whom Moreover, the letter of 14 May 1965 could the task was clearly delegated by the Com in no way be regarded as a decision, as in mission, did or did not use the words 'for any case a measure by which the Commis the Commission'. sion complied with the demands of the It is undisputed, in particular in academic applicants would itself have been incapable writing on German public law, that the of constituting a decision. internal rules of procedure of the highest According to the established case-law of executive bodies or of the legislature are the Court an express or implied decision of not to be regarded as legislation. The refusal can only form the subject of an defendant is thus wrong to refer to the application if the positive measure which procedural requirements of Articles 12 and the authority fails to take can itself be con 24 of its rules of procedure. Furthermore, tested in legal proceedings. In consequence,

as the reasoned opinion claimed by the request the Commission of the EEC to take applicants constitutes a measure having no a decision. The only important factor is binding force and being incapable of giving whether the Commission did in fact take a rise to an application before the Court, this decision. principle also applies to a declaration by The applicants further maintain that the which the Commission lets it be known that statement by the defendant that it alone is it does not intend to deliver such an entitled to decide whether or not to set in

The tive right'. The phrase 'the Commission Commission is therefore obliged to act in considers therefore that further intervention accordance with Article 169. It is clear from is unnecessary' showed that the Commis Article 155 read in conjunction with Article sion had decided to refrain from any action 169 that by failing to act the defendant is in a specific case and to refuse to exercise itself committing an infringement of the its power as requested. In this respect it is Treaty. This being so, the applicants are unnecessary to consider whether the letter unable to understand how the Commission lays down a specific course of conduct for can describe as a 'purely internal measure' the applicants. a decision concerning the initiation of a Consequently, in order to establish the procedure under Article 169 against the admissibility of the application, it is suffi Federal Republic and the measures which cient for the applicants to assert that the proceed from it. letter of 14 May 1965 constitutes a decision. Moreover, the applicants point out that B — The alternative conclusions there is no discrepancy between the terms 'information' and 'decision'; a letter of The defendant considers that the applicants' information can certainly constitute a alternative conclusions (proceedings for 'decision' (or, to use the German term a failure to act) are also inadmissible.

Even without accept take three separate measures. ing the general view that the acts referred By refusing to take the internal decision to in Article 175 constitute decisions, it is required in point 1 of the applicants' letter true that what the applicants requested in the defendant did not infringe the Treaty, point 3 of their application would still since it does not provide for such decisions do so. and, a fortiori, does not attach any legal Thus it is not necessary to know whether consequences to them. or not the applicants had the right to In point 2 of their letter the applicants re-

quested the Commission to set in motion provision creating a true legal obligation against the Federal Republic of Germany for the Commission. the procedure provided for in Article 169. The applicants consider that the defen Both on the basis of the wording of Article dant's declaration that 'the question 169 and in the light of the interpretation whether the applicants have the right to be given thereto, citizens of Member States informed of the measures taken or not have no right to require the Commission to taken may be set aside' confirms their view take such action. that the letter of 14 May 1965 does in fact The Commission is competent to initiate constitute a decision. this procedure, without being under any obligation towards individuals to do so. C — The general considerations put forward This being so, individuals who propose by the defendant recourse to the procedure in question cannot maintain that the refusal of the The defendant has put forward certain Commission to do so constitutes an in general considerations which, in its opinion, fringement of the Treaty. For there is in are further evidence of the inadmissibility any case no infringement of the Treaty as of the application. regards such persons. 1. To allow private persons to take ad The question whether the applicants were vantage of Articles 173 and 175 in order to entitled to request notification of the attack the steps taken by the Commission measures taken or otherwise (point 3 of the under Article 169 would in practice render applicants' request) is not important, since the whole body of Community law directly the Commission replied to their letter applicable ('self-executing') irrespective of within a reasonable time (letter from the the distinctions drawn in this respect by the Directorate-General for Competition of case-law of the Court.

The Court itself carry out an act which is obligatory, with has always distinguished clearly between out its being necessary to consider whether those provisions which are directly appli this implies other acts in addition to cable and capable of giving rise to subjective decisions. rights and those without this effect. For proceedings for failure to act to be The applicants dispute the allegation that admissible, the act in question must be 'by they are seeking to render the whole body its nature and its purpose addressed to the of Community law directly applicable ('self- applicants'. executing'). They are also of the opinion In this instance these two conditions are that, like all citizens of Member States, not fulfilled. they cannot claim any right to bring an The applicants dispute the fact that their application unless there has been infringe request of 15 March 1965 (point 1) and the ment of a genuine obligation, that is, in the application before the Court require an cases in which the Treaty provides in any 'internal measure' to be taken. They are of case for an application to be brought.

JUDGMENT OF 1. 3. 1966 — CASE 48/65

Grounds of judgment

In a letter dated 15 March 1965, the applicants made an application to the Com­ mission on the basis of Article 175 of the Treaty. The applicants requested that the Commission take a decision ('Beschluß') to the effect that, as from 1 January 1962, the imposition by the Federal Republic of Germany of a turnover equalization tax of 4 % on the importation of powdered milk and other dried milk products is an infringement of Article 95 of the Treaty and that it should decide ('beschließen') to initiate against the Federal Republic the procedure laid down in Article 169 and inform the applicants of the decisions ('Beschlüsse') adopted.

LÜTTICKE v COMMISSION

After considering this request, the Commission informed the applicants in a letter dated 14 May 1965 that it did not share their opinion that the said turnover equalization tax constituted an infringement of Article 95 of the Treaty.

The applicants then brought an application under Article 173 of the Treaty for the annulment of this definition of its position.

The defendant alleges that this application is inadmissible on the ground that an application for annulment cannot lie against the measure in question.

The defendant claims that the alternative application is also inadmissible.

Under the terms of the second paragraph of Article 175, proceedings for failure to act may only be brought if at the end of a period of two months from being called upon to act the institution has not defined its position.

It is established that the Commission has defined its position and has notified this position to the applicants within the prescribed period.

OPINION OF MR GAND — CASE 48/65

The plea of inadmissibility is therefore well founded.

Costs

1. Dismisses Application 48/65 as inadmissible;

2. Orders the applicants to pay the costs of the action.

Hammes Donner Trabucchi Lecourt Monaco

Delivered in open court in Luxembourg on 1 March 1966.

A. Van Houtte Ch. L. Hammes

Registrar President