C-15/70

JUDGMENT OF THE COURT 18 NOVEMBER 1970<apnote>1</apnote>

Amedeo Chevalley v Commission of the European Communities

Case 15/70

In Case 15/70

Amedeo Chevalley, residing in Turin, assisted by G. G. Stendardi of the Milan Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 34 rue Philippe-II,

applicant

Registrar: A. Van Houtte

gives the following

1— Language of the Case: Italian.

JUDGMENT OF 18. 11. 1970 — Case 15/70

JUDGMENT

Issues of fact and of law

— to take a decision in respect of the — give a preliminary ruling, without dis­ applicant fixing the terms and detailed cussing the substance of the case, on rules to be followed in practice on the admissibility of the application concluding leases of his agricultural under Article 91 of the Rules of Pro­ property in the event of the said draft law cedure: becoming an effective law of the Italian Republic. — declare the application to be inad­ missible and consequently dismiss it; By letter of 16 February 1970 the President of the Commission informed the applicant's — order the applicant to pay the costs. lawyer that the Commission 'is not obliged in this case to adopt any measure whatever In a document lodged at the Registry on with regard to your client' and that by virtue 22 June 1970 under Article 91 (2) of the of the third paragraph of Article 175 of the Rules of Procedure the applicant states Treaty' it will not be possible for your that: client to bring an action for failure to act If the Court were to consider the conclusions based on the requests submitted by you'. advanced by Mr Chevalley in the applica­ tion of 13 April 1970 capable of leading to 3. On 13 April 1970 the applicant intro­ a finding that it is inadmissible, the duced this application. applicant amends his conclusions as follows :

CHEVALLEY v COMMISSION

— Moreover, the measure critized, namely IV— Submissions and arguments the refusal to adopt the measure sought, of the parties is illegal as it lacks any statement of reasons capable of justifying it.

The submissions and arguments of the The defendant, in its statement in connexion parties may be summarized as follows: with the procedural issue, puts forward the In his application the applicant makes the following considerations in particular: following points in particular: A declaration of the non-observance 'by a He is the owner of agricultural land Member State of its Community obligations situated in the province of Cuneo, which may only be made at the request of the is leased. Commission or of another Member State. This application is 'for a declaration that Individuals do not have the capacity to the measure adopted by the Commission ... seek such a declaration, even by means of on 16 February 1970 is illegal and for its an action for failure to act. The only remedy annulment'. open to them for opposing the illegal The application is admissible. In fact, by measures of States is to raise such illegality his letter of 9 December 1969 the applicant before the national court, on condition of requested the Commission to take a course that the Community provisions concrete decision in respect of him, which alleged to have been infringed are directly was met with an express refusal from the applicable within the meaning attributed Commission, certainly without a statement to those words in the case-law of the Court. of reasons 'but unequivocal in substance'. The applicant himself recognizes that the The application is also well founded, for defendant effectively stated its position in the following reasons in particular: its letter of 16 February 1970. He has stated

that his application is directed against the Treaty and restricts his request to asking measures contained in that letter and the Court to find that the Commission has requests that it be annulled. Such an infringed the third indent of Article 155 application is not envisaged in the context of the EEC Treaty ... by reason of the fact of Article 175, which is a provision pre­ that it has refused to adopt the decision supposing the institution's failure to act. requested or, alternatively, that the Court Moreover, it is obviously contradictory to find that Article :173 of the EEC Treaty claim simultaneously that a measure exists has been contravened by reason of the which must be annulled and that that adoption of an illegal measure in that it measure does not exist. infringes essential procedural requirements.' There is no Community provision obliging There is no contradiction as alleged by the the defendant to take the individual defendant. Within the context of an action decision sought in respect of the applicant. for failure to act, as provided for by Article Finally, it is impossible at present to be 175, the express refusal to adopt the aware of all the amendments which might measure sought is equivalent in law — as be made to the draft law or to, know how also in fact — to silence pure and simple.. and when it will be promulgated. If the Court were not to accept this reason­ In his statement lodged oh 22 June 1970, ing, the fact would remain that by virtue the applicant replies in particular as follows : of Article 173 an individual may institute He had supposed that in order to be able proceedings against an individual measure. to assess the defendant's conduct in The terms of and detailed rules for such refusing to adopt the individual measure proceedings are identical to those laid down sought the Court would logically be led to for an action for failure to act, so that the examine first of all whether or not the Court may perfectly well examine the disputed draft law conformed to the Treaty. present request from the viewpoint of 'However, if the Court were not to consider Article 173. that such a preventive and preliminary The defendant's duty to adopt the individual finding was necessary to its decision and, decision sought arises from Article 155 on the contrary, were to think that this of the Treaty, which charges the Com­ request was capable of leading to a decision mission with the task of watching over the that the application is inadmissible, the conduct of all those subject to Community applicant amends his conclusions: he law, both States and individuals, and, where withdraws his request for a preventive and appropriate, of informing them how they preliminary finding that the Italian State must conduct themselves in order to avoid has failed to fulfil its obligations under the contravening Community rules.

The designation of the application

5 The preliminary objection of inadmissibility is based essentially on the ground that no measure exists capable of forming the subject-matter of an action under Article 175.

6 The concept of a measure capable of giving rise to an action is identical in Articles 173 and 175, as both provisions merely prescribe one and the same method of recourse.

7 It appears unnecessary therefore, for the purposes of a decision on the preliminary objection of inadmissibility, to designate the application in relation to the two provisions cited by the applicant.

The admissibility of the application

8 The applicant requested the Commission to give a ruling on the conduct to be followed by him in the face of possible conflict between the national legislation and certain provisions of Community law when the draft law referred to by him became an effective law of the Italian Republic.

13 Such a definition of position cannot be considered as a measure capable of forming the subject-matter of an action under the third paragraph of Article 175.

14 Consequently, the express refusal by the Commission to define its position as requested cannot form the subject-matter of proceedings under Article 173 either.

15 The application must therefore be dismissed as inadmissible.

16 Under the terms of Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. The applicant has failed in his submissions.

On those grounds,

Upon reading the pleadings ; Úpon 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 Articles 173 and 175; 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, especially Articles 69 and 91,

Pescatore Mertens de Wilmars

Delivered in open court in Luxembourg on 18 November 1970.

A. Van Houtte R. Lecourt

Registrar President

OPINION OF MR ADVOCATE-GENERAL DUTHEILLET DE LAMOTHE DELIVERED ON 21 OCTOBER 1970<apnote>1</apnote>

Mr President, to a certain extent on a flat-rate basis, by Members of the Court, multiplying, in respect of each piece of land, the basic land tax by a co-efficient laid As the Court knows, Mr Chevalley's down by regional commissions. application shows, with some slight differ­ It seems that the legislative provision en­ ences which I shall emphasize in a moment, visaged did not favour the financial interests great similarity with that made to the Court of the Borromeos and Mr Chevalley. Thus, by the Borromeos and upon which the in order to attempt to block it, they decided Court gave judgment on 15 July last. to 'appeal' for a ruling from the European Like the Borromeos Mr Chevalley is an institutions. Italian proprietor of agricultural land which To this end, they sent letters to the Com­ he leases. Again like the Borromeos, mission requesting it in exactly the same Mr Chevalley felt himself affected by the terms :