C-6/70

JUDGMENT OF THE COURT 15 JULY 1970<apnote>1</apnote>

Giberto Borromeo Arese and Others v Commission of the European Communities<apnote>2</apnote>

Case 6/70

In Case 6/70

GIBERTO BORROMEO Arese, CALRO BORROMEO, MARIA LUDOVICA FARIA DEL CORE BORROMEO and VITTORIO EMANUELE BORROMEO, all residing in Milan, assisted by G. G. Stendardi of the Milan Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 6 rue Willy-Goergen,

applicants, v

gives the following

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

JUDGMENT OF 15. 7. 1970 — CASE 6/70

JUDGMENT

Issues of fact and of law

I — Summary of the facts 22 December had clarified the attitude of the Commission as regards the applicants' 1. In November 1969 the Senate of the request, so that they could not expect any Italian Republic approved a draft law other reply from the defendant. providing in particular that the amount of rents for agricultural land should be cal­ culated by multiplying the basic land tax by II — Conclusions of the parties coefficients to be laid down by a technical commission. The applicants in their application claim 2. By letter of 5 November 1969 the appli­ that the Court should: cants requested the defendant, under Article 175 of the EEC Treaty, — after finding that Italy has infringed the rules contained in Articles 101 and 102 of — to take action under Article 155 of the the EEC Treaty and in the decision of the Treaty to ensure that the Italian State Council of the EEC of 4 December 1962, applied Articles 101 and 102 of the as regards the procedure followed in Treaty with regard to the procedure for drawing up the national law, and Article drawing up the law in question; 3 (d), the first paragraph of Article 31 and Articles 40 (2), 44, 46 and 92 of the EEC — to submit to the Council a draft directive Treaty in respect of the content of the in application of Articles 155, 145 and said law, declare that by failing to take 100 of the Treaty with a view to har­ the decision sought with regard to them monizing agricultural leases in the Mem­ the defendant Commission has infringed ber States of the Community; the third indent of Article 155 of the EEC Treaty; — to take a decision in respect of the appli­ cants fixing the terms and detailed rules — order the defendant to pay the costs. to be followed in practice on concluding leases of their agricultural property when The defendant, in a statement in connexion the said draft law becomes an effective with a procedural issue lodged on 26 April law of the Italian Republic. 1970, contends that the Court should:

locutory declaration [of the non-con cants in vain requested the Commission to formity to the Treaty of the draft law in take a concrete decision in respect of them. dispute] unnecessary for the purpose of its The application is also well founded, for the decision and on the contrary to consider following reasons in particular: that the request is capable of leading to the inadmissibility of the application, the — If the draft law in question were to attain applicants amend their conclusions by the force of law, the applicants would be withdrawing the request concerning the obliged to enter into contracts with their interlocutory declaration of an infringe tenants in terms taking into account not ment by the Italian State of its obligations the productivity of the agricultural land under the Treaty and restricting them leased or the actual income arising from selves to seeking a declaration that the it but 'values agreed for taxation pur Commission has infringed the third poses, reassessed on the basis of a fixed indent of Article 155 of the Treaty by coefficient'. Contrary to what the posi reason of the fact that it failed to issue the tion is in the other Member States, the decision sought in respect of the appli rules envisaged ignore 'the necessity for cants'. remunerating landed capital on the basis of its real nature in a free market system'. Because of this, the price of agricultural III — Procedure products obtained from the said proper ties is distorted, in defiance—as the ap plicants point out in detail—of a whole

2. After hearing the report of the Judge- national legislation and the Community Rapporteur and the views of the Advocate- rules. General, the Court decided not to make a preparatory inquiry but to open the. oral The defendant, in its statement in connexion procedure in connexion with the preliminary with the procedural issue, puts forward the objection of inadmissibility raised by the following considerations in particular: defendant. A declaration of the non-observance by a The parties presented oral argument at the Member State of its Community obligations hearing on 1 July 1970. may only be made at the request of the The Advocate-General delivered his opinion Commission or of another Member State. at the hearing on 7 July 1970.

JUDGMENT OF 15. 7. 1970 — CASE 6/70

the defendant to take the individual decision In the event of this line of reasoning being sought in respect of the applicants. erroneous, the applicants state that they Finally, it is impossible at present to be amend their conclusions as indicated above aware of all the amendments which might be under II at the end thereof. made to the draft law or to know how and The letter of 22 December 1969 does not when it will be promulgated. constitute a definition of the Commission's In their statement lodged on 21 May 1970, attitude, or even a decision, but merely an the applicants replied in particular as interim reply. This interpretation is con­ follows: firmed by the letter of 12 March 1970. They had supposed that in order to assess The defendant's duty to adopt the in­ whether or not the defendant was obliged to dividual decision sought arises from Article indicate the course of conduct to be follow­ 155 of the Treaty, which charges the Com­ ed by the applicants when entering into mission with the task of watching over the leases the Court would logically be led to conduct of all those subject to Community examine first of all whether or not the dis­ law, both States and individuals. puted draft law conformed to the Treaty.

Grounds of judgment

1 By application lodged on 27 February 1970, the applicants, who are the proprietors of agricultural land situated in Italy, instituted an action based on Article 175 of the EEC Treaty for a declaration that the defendant has infringed the Treaty by failing to address to them a decision which they had called upon it to take.

7 Such a measure would be equivalent not to a decision but to an opinion within the meaning of the last paragraph of Article 189 of the Treaty.

8 Moreover, by adopting the measure sought the defendant would have been required first to assess whether the draft law in question conformed with the Treaty. This would therefore still have resulted in a measure other than those referred to in the third paragraph of Article 175.

9 The application must therefore be dismissed as inadmissible.

10 Under the terms of Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. The applicants have failed in their submissions.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Article 175; Having regard to the Protocol on the Statute of the Court of Justice of the Euro­ pean Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69 and 91;

Pescatore Donner Trabucchi

Delivered in open court in Luxembourg on 15 July 1970.

A. Van Houtte R. Lecourt

Registrar President

OPINION OF MR ADVOCATE-GENERAL GAND DELIVERED ON 7 JULY 1970<apnote>1</apnote>

Mr President, — to take a decision in respect of the appli­ Members of the Court, cants fixing the terms and the detailed rules to be followed in practice on con­ You are called upon to give judgment under cluding leases of their agricultural Article 91 of the Rules of Procedure on the property at the time when the draft law preliminary objection of inadmissibility under discussion becomes law in the raised by the Commission of the European Italian Republic. Communities against the application made to you by the Borromeos, owners in Italy of By letter of 22 December 1969, signed by the agricultural land which they lease. Director-General for the Internal Market Following the adoption by the Senate of the and Approximation of Legislation and Italian Republic of a draft law on the restating the terms of these requests, it was method of fixing the rents on agricultural replied that the Commission's departments land, which seemed to them both to threaten were studying the content of the draft law in their interests as owners and to give rise to a question. It was further stated that this in­ conflict between the national law and the formation was being given without the Community rules, the applicants approach­ recognition of any legal obligation what­ ed the Commission on 5 November 1969 ever and that, under the third paragraph of under Article 175 of the EEC Treaty. They Article 175, the. possibility of bringing an called upon that institution, through their action based on the requests made remained counsel: out of the question.