C-15/71

In Case 15/71

C. Mackprang jr., having its registered office in Hamburg, represented by Fritz Modest and Walter Roll, Advocates at the Hamburg Bar, with an address for service in Luxembourg at the Chambers of Félicien Jansen, Huissier, 21 rue Aldringen,

applicant,

v

Commission of the European COMMUNITIES, represented by its Legal Adviser, Friedrich-Wilhelm Albrecht, acting as agent, assisted by Dieter Oldekop, member of the Legal Service of the Commission, with an address for service in Luxembourg at the Chambers of its Legal Adviser Emile Reuter, 4 boulevard Royal,

defendant,

Advocate-General: A. Dutheillet de Lamothe Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts There was attached to the import certi­ ficate a schedule in which the Einfuhr- On the basis of an invitation for tenders und Vorratsstelle für Getreide und issued by the Einfuhr- und Vorratsstelle Futtermittel specified that evidence that für Getreide und Futtermittel (Import the goods originated in Algeria had to and Supply Office for Cereals and Feed- be furnished by means of a movement stuffs), Frankfurt am Main, on 30 certificate on Form DD4. January 1963 and published in the In fact, under the Decision of the Com­ Bundesanzeiger of 30 January 1963, the mission of 17 July 1962 addressed to the undertaking C.A. Mackprang jr. im­ Member States and establishing special ported 513 796 kg of wheat bran from methods of administrative cooperation Algeria into the Federal Republic of for applying the intra-Community levies Germany during September and October introduced within the framework of the 1963. common agricultural policy (OJ 1962, The invitation for tenders mentioned p. 2140) and Regulation No 86 of the Algeria amongst the Member States of Commission of 25 July 1962 embody­ the EEC. ing provisions to prevent diversion of Consequently the import certificate trade in cereals (OJ 1962, p. 1894), the issued by the Einfuhr- und Vorratsstelle condition for the application of intra- für Getreide und Futtermittel necessi­ Community levies was the production of tated fixing in advance the intra-Com­ a movement certificate on Form DD4 to munity levy laid down by Article 2 of the competent authorities of the import­ Regulation No 19 of the Council of 4 ing Member State. April 1962 on the progressive estab­ Since cue Algerian customs authorities lishment of a common organization of refused to issue DD4 movement certi­ the market in cereals (OJ 1962, p. 933). ficates, the Mackprang undertaking was

unable to produce to the German cus States are empowered to make the bene toms authorities a document which they fits of the intra-Community movement considered sufficient to justify application system subject to the production of a of the system of intra-Community movement certificate on Form DD4 was agricultural levies. the subject-matter of a question which The Hamburg-Reiherstieg and Ham had been referred to the Court of Jus burg-Niederhafen customs offices there tice of the European Communities for a fore imposed not the intra-Community preliminary ruling (Case 12/70, Paul levy but the higher rate of levy applicable Craeynest and Michel Vandewalle v to imports from third countries. Belgian State; a question referred by the Mackprang appealed against these de Belgian Cour de Cassation for a pre cisions to the competent German tax liminary ruling) and that for this reason authorities. it did not seem appropriate to suggest Further, on 9 October 1963 it lodged to the Commission that it give any reply with the Einfuhr- und Vorratsstelle für whatsoever to the request which had Getreide und Futtermittel an objection been submitted to it. against the additional clause in the im Following the judgment of the Court in port certificate and asked for it to be Case 12/70 ([1970] ECR 905) delivered deleted. on 22 October 1970, by letter of 11 By the decision of 22 July 1964 the December 1970 Mackprang asked the Einfuhr- und Vorratsstelle für Getreide Commission on the basis of Article 175 und Futtermittel dismissed this ob of the EEC Treaty to fill in the lacuna jection. which existed in the system applying to By order of 12 May 1970 the Bundes

to be illegal and void. General for Industrial Affairs of the The Bundesfinanzhof ruled that only the Commission informed Mackprang that customs authorities and not the Einfuhr- the judgment of the Court in Case 12/70 und Vorratsstelle für Getreide und did not apply in the present case, that its Futtermittel are competent in the application on the ground of a failure to matter. act did not fulfil the conditions laid By letters of 11 and 14 August 1970, down by Article 175 (3) of the Treaty, Mackprang asked the Commission to that the Commission was under no duty make a decision empowering and re to address a binding measure to the questing the Federal Republic of Ger Federal Republic of Germany and that many to accept evidence other than the in any case it was under no duty to movement certificate on Form DD4 for adopt such a measure in relation to the application of the intra-Community Mackprang. levies to the wheat bran which it had

JUDGMENT OF 26. 10. 1971 — CASE 15/71

the EEC Treaty by failing to adopt in 16 March 1971 it drew the attention of implementation of the obligations im­ the government of the Federal Republic posed upon it by that provision and in of Germany to the fact that the question accordance with the applicant's request of the production of a movement certi­ of 11 December 1970 a decision which, ficate on Form DD4 in respect of the by supplementing its decision of 17 July imposition of the intra-Community levy 1962 and in application of Article 10 of on imports from Algeria does not come the EEC Treaty in conjunction with within Community law and that the Article 227 (2) of that Treaty, enables decision as to the documents which may and orders the Member States to impose be required is a matter for the Federal the lower intra-Community levy on pro­ government. ducts imported from Algeria during 1963 From a legal point of view it must be even in the absence of a movement held that the present application does certificate on Form DD4, if it is proved not fulfil the conditions of admissibility by means of sufficient other evidence that laid down by Article 175 (3) of the EEC the goods are of Algerian origin'. Treaty.

MACKPRANG v COMMISSION

the applicant. the case where, in infringement of the Treaty, the Council or the Commission In any case the absence of the decision fails to act. Article 176 refers to a failure requested in the present case is not of to act which has been 'declared con individual concern to the applicant. Assuming thatthe Decision of the trary to this Treaty'. Since the applica Assuming that the Decision of the Com tion on the ground of a failure to act mission of 17 July 1962 did not allow seeks a declaration that there has been an the customs authorities of Member illegal failure to act it is therefore sub

The absence of the Article 169. decision requested does not therefore The restrictions thus placed on bringing affect the applicant by reason of certain an application on the ground of a failure attributes which are peculiar to it by to act do not affect the observance of reason of circumstances in which it is Community law or the rights which in differentiated from all other persons. dividuals derive therefrom. Thus the Mackprang, the applicant in the main applicant can have referred to the Court action and defendant in the procedural of Justice under Article 177 the question issue considers for its part that its of the interpretation of the Community application is admissible. provisions in question, in particular the (a) The conditions for admissibility laid Decision of the Commission of 17 July down by the second paragraph of Article 1962 within the framework of the pro

JUDGMENT OF 26. 10. 1971 — CASE 15/71

Since it was and where it is only the default of the aware that it is in fact impossible to ob Community organ which deprives it of tain a DD4 certificate in respect of goods the exercise of that right. From the from Algeria, the Commission was under time when it imported wheat bran from an obligation to issue special rules with Algeria the applicant undertaking has regard to evidence of the origin of Alger been in that situation. ian goods. It ought to have done so by This finding cannot be countered by the means of a decision addressed to all the argument that it is not only the appli Member States so as to ensure equality cant undertaking which is affected by of treatment for Algerian products in all the Commission's failure to act: just as

They pur ure to act has identical results in a sue the same aim of legal protection and number of cases which have been ob have the same effects. The application jectively limited. under Article 175 is therefore subject to (d) Besides the admissibility of an ap the same general conditions of admissibil plication on the ground of a failure to ity as the application under Article 173. act ought not to be appraised too re The Commission's failure to act in the strictively particularly in cases where a present case is of direct and individual private individual has no other way of concern to the applicant undertaking. asserting his rights. The failure of a Community organ to act Within the framework of the proceed is of direct concern to a private individ ings which it has brought before the ual when only that organ's illegal failure Finanzgericht against the legality of the to act prevents the actual exercise of a decisions on the imposition of the levy right defined in the abstract. by the customs authorities, the appli This is the case here: by virtue or Regu cant can no longer request the Court of lation No 19/62 an importer has a sub Justice under Article 177 to give a pre jective right to the application of the liminary ruling on the interpretation of intra-Community levy which is lower the applicable provisions of Community than the levy applied to third countries. law. In fact the Decision of the Com-

Article 173 (2), it must be admitted on of 17 July 1962 gave rise to rights and the other hand that it is sufficient for obligations for the individual, a decis­ the applicant to be the quasi-addressee ion which it adopts in order to complete within the framework of the applica­ it with regard to the system of evid­ tion laid down in Article 175 (3): the ence of the origin of Algerian goods applicant is the quasi-addressee of the also gives rise to rights and obligations decision which it asked the Commis­ for the individual. Since the applicant sion to take, for, within the meaning imports cereal-based products from of the judgment of the Court of 6 Algeria, the Commission's failure to act October 1970 in Case 9/70 (Franz directly and individually violates its Grad v Finanzamt Traunstein; a re­ rights. quest for a preliminary ruling by the It must therefore be possible for it to Finanzgericht München, [1970] ECR bring an application against the Com­ 825) it had an interest in the execution mission based on the latter's failure to of that decision. act for the purpose of making a com­ It is in no way contrary to the legal plaint that it had refrained from taking system established by the EEC Treaty a further decision which, by completing to acknowledge that a decision of the its first decision would put an end to Commission addressed to the Member an intolerable legal situation.

Grounds of judgment

1 By application lodged on 26 March 1971 under Article 175 of the EEC Treaty, the applicant complains that the Commission, in breach of its obliga­ tion under Article 155, has failed to address to the Member States a measure which, by completing its Decision of 17 July 1962 on methods of administra­ tive cooperation for the application of intra-Community agricultural levies (OJ 1962, p. 2140), empowered or ordered them to impose the intra-Com­ munity levy on goods from Algeria imported in 1963 even where a movement certificate on Form DD4 which is prescribed by the abovementioned pro­ vision is not produced, if it is established by means of sufficient other evi­ dence that the goods are in fact of Algerian origin. At this request of the

4 Under Article 175 (3), any natural or legal person may, under the conditions laid down in paragraphs (1) and (2) of that article, complain to the Court of Justice that the Commission, in breach of the Treaty, 'has failed to address to that person any act other than a recommendation or an opinion'. The sum­ mary given above shows that the application lodged by the applicant requests the Commission to issue a general provision which would have the same legal scope as the Decision of 17 July 1962. Such a decision cannot, either because of its form or its legal nature, be described as an act which could be addressed to the applicant within the meaning of Article 175 (3).

5 Moreover, in view of the distribution of powers between the Community and the Member States, as results from the agricultural rules in force at the time of the imports in question, an application requesting that the field of application of the Decision of 17 July 1962 be defined with regard to imports which were from a third state, even if they should have received the benefit of the intra-Community system could only be lodged with national courts.

mackprang v commission

The Court of Justice could only give a ruling within the context of such proceedings if its jurisdiction was invoked under Article 177 of the Treaty.

6 The application must therefore be dismissed as inadmissible.

Costs

2. Orders the applicant to bear the costs of the action.

Lecourt Mertens de Wilmars Kutscher

Donner Trabucchi Monaco Pescatore

Delivered in open court in Luxembourg on 26 October 1971.

A. Van Houtte R. Lecourt

Registrar President