C-134/73

A provision of a general regulatory an act addressed to a natural or legal character having the same legal scope as person within the meaning of the third a regulation cannot be described by paragraph of Article 175. reason either of its form or its nature as

In Case 134/73

HOLTZ & WILLEMSEN, GMBH, Krefeld-Uerdingen (Federal Republic of Germany), represented by its directors Helmut Reffelt and Manfred Leser, having as its agents ad litem Messrs. Modest and partners, of the Hamburg Bar, and having chosen its address for service in Luxembourg at the chambers of Mr Félicien Jansen, bailiff, 21, rue Aldringen, applicant, v

Council of the European COMMUNITIES, represented by its Legal Adviser Daniel Vignes and having chosen its address for service in Luxembourg at the offices of J. N. van den Houten, Director of the Legal Service of the European Investment Bank, 2 place de Metz, and

Commission of the European COMMUNITIES, represented by its Legal Adviser Peter Kalbe and having chosen its address for service in Luxembourg at the

1 — Language of the Case: German.

Advocate-General: G. Reischl

Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

The facts of the case, the subject matter established a common organization of of the request and the views of the the market in oils and fats which parties may be summarized as follows. applies inter alia to the products which are the subject of the present dispute, colza and rape seed and the oils produced from these products. I — Facts and procedure An additional subsidy was set up for 1. By its Regulation No 136/66/EEC of colza and rape seed processed in Italy by 22 September 1966 (OJ L 172 of 30 Regulation No 876/67/EEC of the September 1966, p. 3025), the Council Council of 20 November 1967 (OJ L 281

of 21 November 1967, p. 7), for the Article 1975 of the Treaty, to enact 'a 1967/69 marketing year. This subsidy regulation for an additional subsidy for was continued from that time on and, colza or rape seed processed in oil mills recently, extended to the 1972/73 far from the production areas'; a subsidy marketing year by Regulation No no longer intended solely for oil mills 1336/72 of the Council of 27 June 1972 situated in Italy but calculated on the (OJ L 147 of 29 June 1972, p. 7) a piece basis of the distance between the oil mill of legislation which the applicant and the production areas.

in conformity with the Treaty. in the Community (showed), account being taken of the development The appellant adduces several arguments prospects of the market in seeds, that the in support of its action. The Council, by additional subsidy should be maintained failing to enact a regulation by virtue of for the 1972/73 marketing year, but at a which the applicant would have different rate'. obtained, according to objective criteria and in the same manner as the Italian oil 2. The applicant, the firm of Holtz & mills, a subsidy for colza processed in Willemsen, GmbH, operates an oil mill regions far from the production areas, in Krefeld-Uerdingen, in the Land of and the Commission, by failing to North Rhine-Westphalia. One of its propose to the Council a regulation to activities consists of producing oil from that effect, have both violated the colza and rape seed. It considers that the principle prescribed by Article 7 of the grant of an additional subsidy to Italian EEC Treaty that discrimination shall be oil mills constitutes discrimination on prohibited.

from the same subsidy. by the applicant, only invokes 'certain For this reason, the applicant wrote on difficulties encountered in Italy in the oil 29 January 1973 to the Secretariat of the seed crushing industry', but does not Council of the European Communities indicate in any manner in its recitals calling upon it, in conformity with the what those difficulties are; however, it provisions of the second paragraph of appears that these difficulties exist

out moreover that the Commission has since put forward a system for additional 2. The Council of the European subsidies which discriminates in favour Communities, a defendant, (applicant of certain regions of Italy. with regard to the preliminary objection), contends that the Court 3. The Holtz firm commenced this should: action on 16 May 1973. (a) pronounce judgment on the various By statements lodged on 22 June and 9 preliminary objections relating to July 1973 the Commission and the inadmissibility which appear to it to Council of the European Communities vitiate the action, without dealing raised several preliminary objections with the substance of the case; relating to inadmissibility, in accordance with Article 91 of the Rules of Procedure (b) declare the action inadmissible; of the Court of Justice of the European (c) order the applicant to bear the costs. Communities. 3. The Commission of the European On 22 August 1973 the applicant lodged Communities, a defendant, (applicant its observations with regard to those preliminary objections. with regard to the preliminary objection), contends that the Court The Court, having herad the report of should: the Judge-Rapporteur and the opinion of the Advocate-General, decided to open (a) pronounce judgment on the the oral procedure in respect of the admissibility of the action on a claims as to inadmissibility without any preliminary basis and without preparatory inquiries. dealing with the substance of the case in pursuance of Article 91 of the Rules of Procedure; (b) declare the action inadmissible and II — Conclusions of the consequently dismiss it; parties (c) order the applicant to bear the costs. 1. The applicant claims that the Court 4. The applicant (defendant with should: regard to the preliminary objection) (a) declare that the Council, in claims that the Court should: infringement of the Treaty, has — dismiss the applications for a failed to enact a regulation for an preliminary decision relating to the additional subsidy for colza and admissibility of the action in rape seed processed in oil mills far pursuance of Article 91 of the Rules from the production areas and of Procedure. providing, inter alia, in the case of an oil mill situated in the Federal Republic of Germany in the Land of North Rhine-Westphalia, for the III — Submissions and argu­ payment on an additional subsidy of ments of the parties 0.60 u.a. per 100 kg of colza and on the admissiblity rape seed; of the action (b) declare that the Commission, in infringement of the Treaty, has failed 1. The Council, a defendant, (applicant to submit a proposal to the Council with regard to the preliminary objection) to this effect: points out that the action prescribed by

the second paragraph of Article 175 is Regulation was extended to all the admissible only if the Community Community oil mills, it would have a institution, after having been called upon direct right to benefit from the subsidy to act, has not defined its position within and that it was individually concerned two months of being so called upon. by the particularly disadvantageous The Council, given notice to replace the situation which it shared with only six of existing system by 'a scheme of a the German oil mills. The Council points Community nature' replied within the out a paradox: the applicant calls upon time limit allowed that 'the existing the Council to adopt an act having a system was in conformity with the general scope in order to satisfy interests

On the other an action for failure to act against a hand, it has on many occassions given Community institution can only relate to judgment on the admissibility of an the adoption of an act which must be action for annulment (second paragraph addressed to the person bringing the of Article 173) with regard to a action. But, the regulation which the regulation whose general character was applicant called upon the Council to questioned. enact has not that character. This One would be justified in transposing question was dealt with in Case 15/71, this case law to the present case on the Mackprang v Commission (26 October footing that a natural or legal person

In Judgment 106 and 107/63 (Rec. 1965, The applicant's request to 'enact a p. 525-533), the Court had declared the action admissible because the number regulation' suffices to show that the act requested is not of the type envisaged in and the individuality of those concerned was determined ne varietur and could no the third paragraph of Article 175 of the Treaty, namely a measure ut singuli in longer be altered, but in the case of favour of the applicant, but a 'policy permanent legislation the Court did not decision' which would set up a 'scheme accept that it could be considered as of direct and individual concern to the of a Community character' from which all the oil mills in the Community would applicants if in the future new persons benefit 'according to their distance from could claim to join the initial the production areas.' beneficiaries of the legislation (Judgment 6/68, Rec. 1968, p. 596).

JUDGMENT OF 15.1. 1974 — CASE 134/73

decision. even if it was not in the direction desired The Council finally points out that the by the applicant. applicant, by indicating that its action Having regard to the provisions of the can be considered as one for annulment, third paragraph of Article 175 of the is rendering the object of its claim Treaty the terms of the action are not ambiguous. But as this new description conclusive. In no respect does the of the action does not appear in the applicant assert that the Commission has conclusions it is inadmissible. Moreover, failed to address to it a particular act. it applies to the Council's reply, which is Nor has it established what obligation, not an act having a legal effect but based on Community law, the whose sole aim is to confirm the validity Commission infringed by not complying of the regulations relating to the with its request. Not only do the Treaty

HOLTZ v COUNCIL

In against the admissibility of the action, no respect is there any question of a according to which the regulation decision within the meaning of Article postulated could not be addressed to the 189 of the Treaty. applicant, the latter points out that Within the framework of the new the above-cited Mackprang judgment legislation requested the number of those did not give a ruling on whether the to whom it is addressed could only be third paragraph of Article 175 imposed, determined in an abstract manner as the as regards the person to whom the number of oil mills in operation in the decision is addressed, stricter conditions region may vary. than those for actions for annulment Moreover, the extension of partial under Article 173.

The applicant (defendant with The letter sent to the Council on 29 regard to the preliminary objection) January 1973 must be understood in the submits its observations on the claims in light of the application to the Court, in respect of the preliminary objections which the request for the enactment of relating to inadmissibility raised by the a non-discriminatory regulation has been Council and the Commission. put in a more complete and concrete form. The decision solicited thus does (a) Council's claim not have the same general character as The applicant claims that by asserting the decision whose adoption, according to the Mackprang decision, could not be that 'the regulations referred to are in obtained by the action for failure to act. harmony with the EEC Treaty', the Council did not define its position, since The applicant's argument that there it had ignored the request made by the exists only one suitable measure to

eliminate the discriminatory effect of the applying to persons whose identity may additional subsidy granted to Italian oil change in the future, there is a mills, namely the adoption of a non misunderstanding of the application, discriminatory regulation, may be whose only aim is to obtain a questioned by the defendants. But the declaration of failure to act contrary to latter thereby invoke an issue concerning the Treaty and which does not the substance of the matter and not the contemplate any factor subsequent to admissibility of the application, which this action. It is on the basis of criteria cannot be cleared up by a decision made existing at the present time that it must in pursuance of Article 91 of the Rules be considered who is affected by the of Procedure. One cannot, when scheme whose establishment is requested. examining admissibility, raise the If in the future other oil mills were to objection that one is not concerned with be set up in the Land of North an ut singuli measure but with a policy Rhine-Westphalia, that would in no way decision. affect the decision requested. The real question in the examination of The Council points out with justification admissibility is whether the scheme of additional subsidies is of direct and that the Court of Justice has never decided on the admissibility of an action individual concern to the applicant.

This means that in order to asks the Court to examine once more determine whether the condition required the question of admissibility in the light for the commencement of an action is of the special characteristics of actions fulfilled, one must undertake an for failure to act, since the case law on examination of the contents of the annulment can only be applied by scheme the institution of which is analogy. challenged or requested. The applicant In the case of an action for annulment only desires that an additional subsidy there is less need for a citizen of the be granted to it in accordance with the Community to see the protection of his same principles which apply to the grant rights guaranteed, since regulations serve of a subsidy to oil mills situated in Italy. as a basis for the adoption of It could ask for a direct and individual administrative actions which the citizen decision on its own account, but does can contest either before national not do so because in addition to itself several other oil mills, which can also be tribunals or before the Court of Justice. particularized, are in the same position In the case of failure to act by the as itself, and the applicant does not institutions of the Community the want, for its part, to request a position is completely different, as no nondiscriminatory scheme for its sole administrative act has been carried out. advantage.

HOLTZ v COUNCIL

(b) Commission's claim adoption of the regulation whose The Commission's letter of 8 March enactment it requests — concern not the 1973 does not constitute the definition of admissibility but the merits of this claim. a position, for the same reasons as those Furthermore, as to the claim for mentioned above in respect of the damages lodged on 23 July 1973 by the Council (Judgment 6/70, Borromeo, Rec. applicant, the latter points out that a 1970, p. 815). preliminary decision on the admissibility of the action for failure to act would not Moreover, a proposal by the Commission is not a mere 'internal spare the Court the task of having to examine the facts or the issues of phenomenon'. In fact, since the Council enacts its regulations in accordance with substance relating to the claim for the third subparagraph of Article 43 (2) compensation. 'on a proposal from the Commission', The oral argument took place on 21 infringement of the Treaty by the November 1973. The applicant was Council implies at the same time represented by Dr Jürgen Gündisch, of infringement of the Treaty by the the Hamburg Bar, the Council of the Commission. European Communities by its Legal In conclusion, the applicant considers Adviser, Daniel Vignes, acting as agent, that the question of its legal title to assisted by Hans-Jürgen Rabe, of the claim the scheme requested relates to the Hamburg Bar, and the Commission of merits and not the admissibility of the the European Communities by its Legal claim. Several of the objections raised by Adviser Peter Kalbe, acting as agent. the defendants in their statements — The Advocate-General delivered his including the one which asserts that the opinion at the hearing on 5 December applicant has no right to demand the 1973.

1967/68 marketing year, an additional subsidy whose purpose was to lessen certain difficulties encountered by Italian oil mills and which was renewed for the 1972/73 marketing year by Regulation No 1336/72 of 27 June 1972 (OJ L 147 of 29 June 1972, p. 7).

Contending that this additional subsidy constitutes a discrimination prohibited by Article 7 of the EEC Treaty, the applicant, by a letter of 29 January 1973, called upon the Council 'in accordance with the second paragraph of Article 175 of the EEC Treaty to enact a regulation concerning an additional subsidy for colza and rape seed processed in oil mills far from the production areas'.

The applicant added that 'this regulation should no longer take account of the fact that an oil mill is situated on the territory of a particular Member State' but 'instead should grant this additional subsidy in progressive slices according to the distance between the oil mill and the production areas'.

By letter of the same date the applicant informed the Commission of the contents of the one it sent to the Council and it begged the Commission 'to make use of its right of initiative and to submit an appropriate proposal to the Council'.

3 By a letter of 23 March 1973 the Council replied to the applicant that it was of the opinion that the Regulations establishing an additional subsidy for colza and rape seed processed in Italy were in conformity with the EEC Treaty.

By a letter of 8 March 1973 the Commission replied to the applicant that its application was being examined closely by its departments.

The same applies in respect of that part of the action directed against the Commission, as the proposal demanded from the latter is an intrinsic part of the procedure for preparation of the regulation and is thus not capable of falling in the category of acts which by the third paragraph of Article 175 can be addressed to the applicant.

6 The action must therefore be dismissed as inadmissible.

Costs

7 By Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

The action has been declared inadmissible.

The applicant must therefore be ordered to pay the costs of the proceedings.

1. Dismisses the action as inadmissible.

2. Orders the applicant to pay the costs of the proceedings.

Lecourt Donner Sørensen Monaco Mertens de Wilmars

Pescatore Kutscher Ó Dálaigh Mackenzie Stuart

Delivered in open court in Luxembourg on 15 January 1974.

A. Van Houtte R. Lecourt