C-69/69

JUDGMENT OF THE COURT 16 JUNE 19701

SA Alcan Aluminium Raeren and Others v Commission of the European Communities2

Case 69/69

Summary

Common Customs Tariff — Tariff quotas — Decision of the Commission — Decision addressed to a Member State — Right of action for individuals — Absence of such right (EEC Treaty, Article 173)

An authorization granted by the Commis­ the refusal of a tariff quota can therefore be sion to a Member State to open a tariff of direct concern to undertakings which quota merely creates a power in favour of might possibly have benefited from such a the State concerned. Neither the grant nor quota.

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

JUDGMENT OF 16. 6. 1960 — CASE 69/69

V

Commission of the European Communities, represented by its Legal Adviser, Jean Amphoux, acting as Agent, with an address for service in Luxembourg at the offices of its Legal Adviser Émile Reuter, 4 boulevard Royal,

defendant,

Application concerning, at the present state of proceedings, the admissibility of the application made by the applicant companies against the decision of the Commission of 12 May 1969 refusing to allow the Kingdom of Belgium and the Grand Duchy of Luxembourg to open for the year 1968 a tariff quota for unwrought aluminium under heading 76.01 A of the Common Customs Tariff,

Issues of fact and of law

I — Facts '(1) As regards unwrought aluminium (heading 76.01 A), as from the first According to the terms of Protocol No ХII alignment on the Common Customs concerning unwrought aluminium (heading Tariff, the Commission shall authorize 76.01 A), dated 2 March 1960, the Member the Federal Republic of Germany and States of the Community at the time of the the Benelux countries on their request signature of the agreement on the establish­ to open annual tariff quotas subject to a ment of a part of the Common Customs duty of 5 % to cover the import needs of Tariff relating to products in List G appear­ their processing industries, subject to ing in Annex I to the EEG Treaty, agreed to the condition that goods imported under the following provisions which are annexed the benefit of such quotas are processed to the agreement : within the importing Member State.

ALCAN ν COMMISSION

benefit of the Belgo-Luxembourg Economic In application of these provisions the Union. authorization to open national tariff quotas By letter of 24 December 1968, the perma for unwrought aluminium at the reduced nent representatives of Belgium, taking into duty of 5% was granted annually to the account further needs, increased the request Belgo-Luxembourg Economic Union as from 5 000 to 8 000 metric tons. from 1 January 1964—the date on which The Commission rejected the request Belgium and Luxembourg made the first —after the end of the financial year to which alignment on the Common Customs Tariff it referred—by a decision of 12 May 1969, as regards the. product in question—up to notified to the Belgian Government on 13

Belgium and to the Grand by the Community at the conference on the Duchy of Luxembourg a tariff quota for the commercial negotiations of 1964 to 1967 year 1968 for unwrought aluminium under known as 'the Kennedy Round', held under tariff heading 76.01 A of the Common the auspices of the parties subscribing to the Customs Tariff and to take note that they General Agreement on Tariffs and Trade reserved the right to claim compensation (GATT), the Council, by its decision of 29 for the damage caused by continuing the February 1968 (OJ L 61 of 8. 3. 1968, p. 7), proceedings or subsequently. opened for the year 1968 a Community By an application lodged on 24 December tariff quota of 130 000 metric tons at the 1969 the Commission requested the Court reduced duty of 5% for unwrought alumi

Member States which had exhausted their On hearing the report of the Judge-Rappor­ initial share. teur and the views of the Advocate-General, On the quota of the Belgo-Luxembourg the Court decided to open the oral pro­ Economic Union becoming exhausted cedure without a preparatory inquiry on the

JUDGMENT OF 16. 6. 1970 — CASE 69/69

Belgium dated 2 October 1969. As 7 October 1969 is to be regarded as the III — Submissions and arguments of starting point of the period laid down by the parties on the admissi Article 173, the objection concerning delay bility of the application cannot be upheld. Furthermore the applicants point out, on the one hand, that the principle of legal cer tainty relied upon by the Commission in The submissions and arguments put for support if its restrictive interpretation of the ward by the parties concerning the admissi third paragraph of Article 173 must be bility of the application may be summa reconciled with the principle of the right of

Treaty. The Commission does not ignore the fact The Commission states that the disputed that time does not begin to run in respect of decision is not addressed to the applicant that period in a case where, like the present, the contested decision—like all decisions of companies and that, in order to conform to the conditions of admissibility laid down refusal to grant a quota—has not been the by the second paragraph of Article 173 of subject of a publication, until the day when the Treaty, they must establish that it is of the applicant has been informed of it; how direct and individual concern to them. ever it doubts whether the applicant com Neither of these conditions is fulfilled in the panies only knew of the contested decision

ities information concerning a measure cern to the applicants? which they considered gave them ground for complaint. The Commission maintains that an appli­ Without formally pleading the inadmissi­ cant is concerned directly by a Community bility of the application, the Commission decision only to the extent to which he can

ALCAN ν COMMISSION

tion of individuals. The ability of the latter that respect. It would not thus have been of to benefit from the opening of a tariff quota direct concern to individuals, in respect of in respect of the product under considera whom its legal effects would necessarily tions always presupposes a measure by a have been the subject of intervening action Member State; the direct link of causality by a national legal measure. required by the second paragraph of Article 173 of the Treaty can therefore never exist (d) The fact that in the present case the between decisions taken by the Commission contested decision refuses the quota re on the basis of the aforementioned protocol quested does not lead to a different result in and the legal situation of individuals. respect of the decision on the criterion of a

Only the duty never constitutes a right for individuals national measures can have legal effects for at the time when the Commission comes to individuals ; consequently the latter are not a decision concerning the request of the directly concerned by the prior decision of the Commission. State, but merely a possible advantage, an uncertain possibility of a right, so that even in case of refusal individuals are not directly (c) The fact that the contested decision con concerned by the decision of the Commis cerned a state of affairs which had expired

power. concerned, and a decision by them would have continued to be necessary in order for the legal situation of individuals to be (e) It is not logical from the point of view of settled. litigation to treat decisions of refusal dif The effect of the grant of a. tariff quota could ferently according to whether they are only have been to authorize the Member express or implied. It is however to this States in question to. repay a part of the result that the argument accepting the pos-

sibility of a direct interest by individuals in ization which is granted to it not after it has the contested decision leads. been granted, but before, when it formulates In fact, even if the possibility of their being the request, so that the decision of the Com permitted to request the annulment of the mission, although it is a mere authorization Commission's express refusal of the request has direct effects upon the situation of for a quota were to be recognized, there individuals. would be no doubt that if the Commission The contested decision, considered merely had refrained from deciding upon that from the point of view of the implementa request the applicants would not have had tion of the power of authorization, thus any method of appealing to the Court directly concerns the applicants. against such abstention: the decisions of the Commission in application of Protocol (c) In the present case the contested deci No XII are clearly not numbered among sion is, furthermore, a decision of refusal those concerning which the third paragraph and not of authorization.

criterion of direct interest—the theoretical ly applicable to them. In fact an applicant are of discretion of the State addressed—a is directly concerned by a Community new criterion, that is to say, the right which decision if it has an effect on his situation individuals may or may not have to the and if that effect does not depend on the benefit of a tariff quota at a reduced duty; free appraisal of the Member State in exchanging one criterion for another just question. as the need arises cannot be justified. That argument has also the consequence of (b) The existence of an area of discretion making the infringement of a right a con left to the Member State must be regarded dition of the admissibility of applications by not in the abstract but in practical terms. individuals, whilst it is sufficient that there As it is a question of an authorization pre

The Mem the point of view of litigation, differently ber State concerned in fact uses the author- according to whether they are implied or

express, the applicants reply that an action garded as individually concerned by the for failure to act and an application for contested decision. annulment have different objects. Furthermore, the second paragraph of (b) It may without doubt be admitted that Article 173 authorizes private persons, at because of its date the contested decision least in certain cases, to make an applica could have had hardly any effect, if it had tion for annulment against decisions ad been positive, other than to authorize dressed to Member States, whilst an action Belgium and Luxembourg to make certain for failure to act against the Commission repayments of customs duties within the which has refrained from addressing a limit of the quota agreed to and to regard decision to a Member State may be ex persons concerned as being among those cluded by the third paragraph of Article who in 1968 made imports of unwrought 175; one cannot therefore use the latter aluminium into Belgium and Luxembourg provision to interpret the second paragraph from third countries with the intention of of Article 173. processing that aluminium in the importing Lastly, reasoning by analogy which would Member State after Belgium or Luxem have the effect of limiting the right of appeal bourg had exhausted their capacity to draw of those subject to Community law beyond upon the Community tariff quota opened what is clearly laid down by the wording of in 1968 for the same product by the decision the second paragraph of Article 173 cannot of the Council of 29 February 1968.

porters which could have benefited from a well as in law, binds the State to which it is repayment of customs duties if its decision addressed and deprives it of any discretion had been positive: it was open to the ary power. Member States concerned to refrain from making such repayments or to do so only partially; but even if they had made full use 2 — Is the contested decision of individual of the authorization granted, it was possible concern to the applicants? that the amount of imports or unwrought aluminium actually made beyond the quota in 1968 would have been greater than the

concerned. stances in which they are differentiated from all other persons, and by virtue of these (c) The applicants could not have found factors distinguishes them individually just themselves in circumstances in which they as in the case of the person addressed. were differentiated from all other persons and distinguished individually just as in the (a) The fact that they are aluminium im case of the person addressed; the contested porting and processing industries does not decision is not therefore of individual con suffice to allow the applicants to be re- cern to them within the meaning of the

second paragraph of Article 173 of the objectively determined situation. It is thus Treaty. pointless to try to discover what would have The applicants state that, according to the happened if the decision had been other opinion of the Commission itself, in order than it was. to establish that they are individually con­ Even if it is admitted that importers finding cerned by the contested decision, it suffices themselves in the position of the applicants for them to show that in their capacity as would in case of a positive decision have had importers they have actually imported un­ only a possibility of obtaining repayment of wrought aluminium from third countries, overpaid duties, nevertheless the said im­ for the purpose of the processing of that porters, and they alone to the exclusion of aluminium in Belgium or Luxembourg, all others, were deprived of that possibility during the fourth quarter of 1968 (Belgium by the Commission's decision of refusal. and Luxembourg having at that time ex­ hausted their capacity to draw upon the (c) The views of the Commission are not, Community tariff quota). The importers furthermore, founded on fact. fulfilling these conditions are in fact the only In the event of a positive decision by the persons concerned by the contested decision Commission the Belgian State would have to the exclusion of all other persons. had the power to repay overpaid duties; that is, moreover, a normal procedure, as numerous tariff quotas are granted only (a) According to the applicants, because of the date of the contested decision and of its after considerable delay and their effects are thus limited to repayment of duties. exclusively retroactive effects, the number Further, the Belgian State was not, contrary and identity of those importers, including to the presumption of the Commission, the applicants, were clearly determined and confronted with a problem of distribution. capable of verification before the date on In fact the quantities of imports of un­ which the Commission adopted its decision. wrought aluminium actually made over and Those importers were affected by the con­ above the Community quota in 1968 were tested decision because of a particular com­ not greater than the national quota provid­ pleted activity which at the time when the decision was taken could not have been ed for once temporary imports free of duty are deducted from it, as they must be. If the carried out by another person. Commission had granted the national tariff quota requested, all imports from third (b) The argument put forward by the Com­ countries liable to pay a duty on entry mission with regard to the determination of would have been covered by the quota persons capable of benefiting from a repay­ granted and no question of distribution of ment of customs duties on the supposition repayment would have been raised, the that its decision had been positive is super­ overpaid duties being capable of complete fluous and irrelevant. repayment to all. In fact the present case concerns not a positive decision, but a decision of refusal (d) The applicants therefore consider them­ which affects all the importers including the selves to be individually concerned by the applicants who found themselves in an contested decision.

5 In these circumstances, it is necessary to consider whether the decision of 12 May 1969, which is the subject-matter of the present case, is of direct and individual concern to the applicants, although it is addressed to the Kingdom of Belgium and the Grand Duchy of Luxembourg.

6 The contested decision was taken within the framework of the powers conferred on the Commission by Protocol No XII on unwrought aluminium, annexed to the Agreement of 2 March 1960 on the establishment of a part of the Common Customs Tariff relating to products in 'List G'.

7 Under this protocol and subject to the conditions therein prescribed, 'the Com­ mission shall authorize... the Benelux countries on their request to open annual tariff quotas subject to a duty of 5 % to cover the import needs of their processing industries...'.

8 A decision taken by the Commission, in pursuance of the provision quoted above, has thus no effect other than to create a power in favour of the Member States concerned, and does not confer any rights on possible beneficiaries of any measures to be taken subsequently by the said States.

9 It appears consequently that the grant, under Protocol No XII, of a tariff quota carrying a reduced rate of duty in favour of the Kingdom of Belgium and the Grand Duchy of Luxembourg would not have the effect of directly concerning under­ takings which might have benefited from the award thus made.

JUDGMENT OF 16. 6. 1970 — CASE 69/69

16 It follows that the application must be dismissed as inadmissible, as the applicants have been unable to establish that they are concerned within the meaning of the second paragraph of Article 173.

17 In these circumstances, there is no need to consider the question whether the application has been brought within the prescribed period.

Costs

18 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

19 The application has been held to be inadmissible.

20 The applicants must therefore be ordered to pay the costs.

2. Orders the applicants to pay the costs.

Lecourt Monaco Pescatore

Donner Trabucchi Strauß Mertens de Wilmars

Delivered in open court in Luxembourg on 16 June 1970.

A. Van Houtte R. Lecourt

Registrar President