C-123/77

JUDGMENT OF THE COURT OF 16 MARCH 1978 <apnote>1</apnote>

Unione Nazionale Importatori е Commercianti Motoveicoli Esteri (UNICME) and Others ν Council of the European Communities

Case 123/77

Application for annulment — Natural or legal persons — Measures of individual concern to them — Criteria (EEC Treaty, second para. ofArt 173)

The possibility of determining more or applicants might possibly be refused an less precisely the number or even the import authorization pursuant to Regu­ identity of the persons to whom a lation No 1692/77 does not provide a measure applies by no means implies sufficient basis for regarding the regu­ that it must be regarded as being of lation as being of individual concern to individual concern to them. them in the same way as if a decision In the present case the fact that all the had been addressed to them.

In Case 123/77

applicants,

1 — Language of the Cue: ltalian.

JUDGMENT OF 16. 3. 1978 — CASE 123/77

V

Council of the European Communities, represented by its Legal Adviser, Franco Giuffrida, with an address for service in Luxembourg at the office of J. N. van den Houten, Director of the Legal Department of the European Investment Bank, 2 Place de Metz, defendant,

APPLICATIONco regarding, at the present stage of the procedure, the admissibility of the application for the annulment of Regulation No 1692/77 of the Commission of 25 July 1977 (Official Journal L 188, p. 11) concerning protective measures on imports of certain motor-cycles orig­ inating in Japan,

On 25 July 1977 since the Council of I — Facts the European Communities considered that "in these circumstances it seems

(1) Following a communication from necessary to adopt protective measures the Italian Government the Commission on imports of certain motor-cycles orig­ entered into discussions in the course of inating in Japan; ... since the export of 1977 with the Japanese authorities in ski boots to Japan principally concerns order to establish the actual conditions the Italian industry these protective for the importation into Japan of certain measures should be limited to imports products (ski boots) originating in the into Italy"; the Council therefore Community. adopted Regulation No 1692/77.

UNICME ν COUNCIL

(2) The products in question are applicants should bear the costs. covered by Council Decision No In their application on the procedural 72/455/EEC of 19 December 1972 issue, lodged on 11 January 1978, the (Official Journal, English Special applicants requested the Court to "find Edition 1972 (30 and 31 December), p. that the legal conditions laid down in 101) since the system for the impor­ subparagraph (c) of the second tation of such products varies from one paragraph (sic) of Article 173 of the Member State to another. Treaty have been fulfilled ... and With regard in particular to Italy the consequently dedare that the objection products in question were regulated of inadmissibility submitted by the until 26 May 1977 by the system Council is unfounded and consequently provided for in Article 2 of the dismiss it so that consideration of the Ministerial Decree of 6 May 1976 substance of the case is not thereby (Ordinary Supplement to the Gazzetta precluded. Moreover they maintain the Ufficiale No 157 of 16 June 1976), that daims set out in the application". is to say they were "products which Having heard the repon of the Judge- may be imported freely without Rapporteur and the Advocate General, quantitative restrictions". the Court decided to open the oral The importation of such products was procedure concerning the objection of subject to a system of impon inadmissibility without any preparatory declarations. inquiry. Pursuant to the Ministerial Decree of 26 May 1977 (Gazzetta Ufficiale No III — Submission and argu­ 143 of 27 May 1977), the system of ments of the parties importation of the relevant products concerning the admissi­ was modified and importation was bility of the application made subject to the rules provided for in Anide 3 of the above-mentioned In their application the applicants claim Ministerial Decree of 6 May 1976. The that Regulation No 1692/77 is of direct rules cover products which require an and individual concern to them within authorization from the Minister as a the meaning of the second paragraph of condition of their importation. Article 173 since that regulation was

adopted after the date of the initiation The Council states that after Italy had of procedures concerning the import informed the Community authorities of declarations with the Italian Ministry its intention to adopt retaliatory for Foreign Trade which in many cases measures to counter the behaviour of had already issued the declarations at the Japanese authorities the Commission the time when the Ministerial Decree of entered into discussions with Japan. 26 May 1977 was issued. These discussions confirmed that Italy's In the proceedings in question the anxieties were well founded.

They claim that it is clear that the regu the entry into force of the Community lation can relate only to the applications regulation and in accordance with the already submitted at that time by the system then in force with regard to the applicants and that accordingly the importation of the product in question number and identity of the traders can is not sufficient to permit the applicants be determined with certainty. to be considered as individually The applicants are accordingly marked concerned as though the regulation out by an interest peculiar to them were addressed to them. which differentiates them from all other It is not correct that the provisions persons and they were already introduced by the regulation may be of distinguished individually, at the time concern only to traders who have when the regulaton was adopted, just as in the case of a person to whom a already submitted an import declaration. The fact that at the date when the

The exports of ski boots. Council maintains that Regulation No

1692/77 applies to an abstract category The regulation in question was adopted of addressees. It introduces general with the sole purpose of obtaining extra rules applicable to any person, not only ordinary protection for a sector which the applicants, who proposes to import was unable to keep abreast of the relevant products from Japan. Furth developments by effecting technical ermore the Council observes that the adaptations. application fails to substantiate the The applicants dispute that Regulation existence of a causal connexion between No 1692/77 is a protective measure and the Council's knowledge of the situation observe that the regulation was adopted of the applicants and the measures two months after the issue of the Italian adopted, which, in the view of academic Ministerial Decree of 26 May 1977 writers, is clearly necessary. which, the applicants maintain, was then According to the Council the applicants already applicable. In practical terms the are affected by the regulation only in regulation ratified the unilateral their capacity as Italian importers of protective measure adopted by Italy. motor-cycles. The applicants maintain that the system The Council concludes by setting out established by the Ministerial Decree of general guide-lines which, in its 27 May 1977, which was to end on 31 opinion, are to be inferred from the December 1977, has already been relevant case-law of the Court of justice transformed into a system of unlimited and from the conditions attached under duration through the Ministerial Decree Article 173 to the admissibility of an of 4 August 1977 (Gazzetta Ufficiale application against a measure of a No 236 of 31 August 1977).

It legislative measures of a wide scope constitutes a measure which clarifies were to become general or in any and implements through administrative event to be granted to a large means legislative provisions already in number of persons; existence (namely Decision No 72/455/ (b) the extremely grave consequences EEC). Accordingly it is not in the which would follow in certain cases nature of a new legislative provision, in from even a partial annulment of respect either of its general character or measures adopted after protracted of the abstract nature of its provisions. negotiations. In fact the Council measure has a retro active scope since, by limiting to 18 000 The applicants note in their observations the number of items which could be that Regulation No 1692/77 does not imported in 1977, it runs counter to the come within the framework of reasonable expectations, which, in the purported guide-lines concerning the absence of prohibitions, were enter commercial policy of the Community tained by traders whose goods, when which ultimately has opted for attaining the regulation entered into force, were a balance in trade through an increase held by the customs, were in transit or in exports without recourse to formed the subject-matter of contr protectionist methods. actual obligations abroad.

2 That regulation, which was adopted on the proposal of the Commission, in accordance with the provisions of Council Decision No 72/455/EEC of 19 December 1972 laying down certain transitional measures for the progressive standardization of the impon terms of Member States as regards third countries (Official Journal, English Special Edition 1972 (30 and 31 December), p. 101) followed a notification from Italy that, because of the introduction of impediments to the importation into Japan of certain products, in particular ski boots, Italy intended to introduce impon authori­ zation arrangements for certain products originating in Japan, in particular for certain motor-cycles.

UNICME v COUNCIL

3 In the terms of Article 1 of the contested regulation: "Imports into Italy of motor-cycles having a cylinder capacity of 380 cc or more, falling within heading ex 87.09 of the Common Customs Tariff, originating in Japan, are hereby made subject to the production of an import authorization issued by the Italian authorities.

"The total quantity of the products for which import authorizations shall be issued for the period 1 January to 31 December 1977 shall not exceed 18 000 items".

4 The applicants maintain that that regulation adversely affects rights acquired under the previous Italian impon system and is thus of direct and individual concern to them.

> The Council, the defendant, has raised an objection of inadmissibility in a separate document, alleging that the contested regulation is neither of direct nor of individual concern to the applicants so that their application does not fulfil the conditions laid down by the second paragraph of Article 173 of the Treaty.

11 Consequently Regulation No 1692/77 would only be of concern to the applicants if, pursuant to that measure, they were refused an import authori­ zation.

12 In that case they will be able to raise the matter before the national court having jurisdiction, if necessary raising before that court their questions concerning the validity of the regulation, which the court will, if it thinks fit be able to deal with by means of the procedure under Article 177 of the Treaty.

13 In the present case the condition laid down in Article 173, to the effect that the contested measure must be of direct and individual concern to the applicants, is not fulfilled.

14 The applicants claim that, taken together, they represent all the importers affected by the impon system introduced for motor-cycles originating in Japan.

15 They state that even before Regulation No 1692/77 was adopted it could have been established that they were the only persons concerned and that they were all concerned.

16 The possibility of determining more or less precisely the number or even the identity of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them.

21 Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs if they have been asked for in the successful party's pleading.

22 In the present case the applicants have failed in their submissions.

23 They must accordingly be ordered to pay the costs.

On those grounds,

THE COURT

hereby:

Registrar President