C-231/82

JUDGMENT OF 14. 7. 1983 — CASE 231/82

2. A measure does not cease to be a is established that such application regulation because it is possible to takes effect by virtue of an objective determine the number or even the legal or factual situation defined by identity of the persons to whom it the measure in relation to its purpose. applies at any given time as long as it

In Case 231/82

SPIJKER KWASTEN BV, a company having its registered office at Beverwijk, The Netherlands, represented by A. F. Savomin Lohman of the Rotterdam Bar, and I. G. F. Cath of the Rotterdam Bar, with an address for service in Luxembourg at the Chambers of Lambert H. Dupong, 14a Rue des Bains, applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Peter Gilsdorf, acting as Agent, assisted by Pieter Jan Kuyper, a member of its Legal Department, with an address for service in Luxembourg at the office of Oreste Montako, a member of its Legal Department, Jean Monnet Building, Kirchberg, defendant,

concerning, at the present stage of the proceedings, the admissibility of an action brought under the second paragraph of Article 173 of the EEC Treaty for a declaration that the Commission's decision of 7 July 1982 authorizing the Kingdom of the Netherlands not to apply Community treatment to brushes falling within subheading 96.01 of the Common Customs Tariff orig- inating in the People's Republic of China and in free circulation in the other Member States (Official Journal 1982, C 171, p. 12) is void,

Facts and Issues

The facts of the case, the course of the 2. The importation of the goods in procedure and the conclusions, sub- question from the People's Republic of missions and arguments of the parties, China was governed, at the relevant may be summarized as follows: time, in particular by the following provisions :

JUDGMENT OF 14. 7. 1983 — CASE 231/82

Journal 1982, C 171, p. 12) pursuant to order of 23 February 1983, to assign the Article 115 of the Treaty and in case to the Third Chamber pursuant to accordance with Article 3 of Commission Article 95 of the Rules of Procedure and Decision 80/47/EEC of 20 December to open the oral procedure with regard 1979 on surveillance and protective to the objection of inadmissibility measures which Member States may be without any preparatory inquiry. authorized to take in respect of imports of certain products originating in third countries and put into free circulation in another Member State (Official Journal II — C o n c l u s i o n s of t h e p a r t i e s 1980, L 16, p. 14). The decision of 7 July 1982 authorizes the Kingdom of The Commission claims that the Court Belgium, the Grand Duchy of Luxem- should: bourg and the Kingdom of the Netherlands not to apply Community Declare the application inadmissible; treatment until 31 December 1982 to brushes falling within subheading ex Order the applicant to pay the costs. 96.01 of the Common Customs Tariff, originating in the People's Republic of The applicant contends that the objection China and put into free circulation in other Member States, in respect of which should be dismissed. import licences were applied for after 25 June 1982. III — Submissions and argu- Thus, the contested decision does not m e n t s of t h e p a r t i e s w i t h relate to the application for an import regard to the admissibility licence with which the present case is of t h e a p p l i c a t i o n concerned. It is apparent from the documents before the Court that the competent Netherlands authorities 1. The Commission claims that the granted the applicant the import licence contested decision is addressed to the for which it applied. However the Benelux States. Consequently the action applicant considers itself to be adversely is not admissible under the second affected by the decision in so far as it paragraph of Article 173 of the Treaty affects future imports. unless the decision is of direct and individual concern to the applicant.

application for an import licence and, on 2. Spijker Kwasten B V states in the first the other hand, that, as regards any place that Article 173 of the Treaty is future applications, the decision is merely intended to provide effective legal in the nature of an authorization. protection for interests affected, by any specific measure adopted by the Commission which is illegal. Therefore the provision is not to be interpreted Secondly, the Commission maintains that restrictively. the decision is not of individual concern to the applicant. In its judgment of 15 July 1963 in Case 25/62 Plaumann Spijker Kwasten goes on to refute the [1963] ECR 95 the Court stated that Commission's argument that it is not persons other than those to whom a directly and individually concerned. decision is addressed may claim to be individually concerned only "if that decision affects them by reason of In that connection it contends in the first certain attributes which are peculiar to place that the decision is of individual them or by reason of circumstances in concern to it. On the one hand, the which they are differentiated from all request for authorization made by the other persons and by virtue of these Netherlands was made in connection factors distinguishes them individually with a consignment imported by Spijker just as in the case of the person Kwasten. On the other hand, the addressed." In the present case the decision affects only the applicant's contested decision is of concern to position as it is the sole trader-importer Spijker Kwasten in the same way as to established in the Benelux States which all other importers of brushes originating regularly imports into the Netherlands in China during the period of validity of from the People's Republic of China. the decision.

protective measures fulfils the such that it is possible to determine with requirement that the applicant must be almost total certainty that the measure individually concerned, at least where will affect the interests and legal position the Commission might have known that of a specific person. the legal position of certain persons That proposition is particularly valid in forming part of a group which is defined the present case since the legal protection in general and abstract terms would be afforded to Spijker Kwasten within the particularly affected. Whilst admitting framework of an action in the national that the Netherlands authorities have in court is insufficient. In that connection fact issued an import licence to it in the applicant states that two questions respect of the consignment of brushes in are raised in the present case: one is question, the applicant contends that the whether the rules concerning national decision is expressly directed against it. commercial policy really are threatened and the other is whether less wide- ranging protective measures might With regard to the requirement that the suffice. Those questions cannot be decision must be of direct concern to it, referred to the Court for a preliminary the applicant states that the Court's ruling by the national court before which case-law has moved away from a purely an action has been brought against a formal approach and now places more emphasis on consideration of the decision refusing to grant an import material effect of the decision on the licence. legal position of the person concerned. According to the latter approach a IV — O r a l p r o c e d u r e Community measure is of direct and material concern to the person in The parties presented oral argument at question as soon as it has been adopted the sitting on 5 May 1983. — even if a national measure is still The Advocate General delivered her 'needed to implement it — circumstances opinion at the sitting on 9 June 1983.

3 The applicant instituted the present proceedings because it considered that the contested decision affected it adversely inasmuch as it affected its future imports.

4 The Commission raised an objection of inadmissibility under Article 91 ('l) of the Rules of Procedure and the Court decided to give a decision on the admissibility of the present action without considering the substance of the case.

5 The Commission objects that the contested decision is addressed to the Benelux States alone and that it is neither of direct nor of individual concern to the applicant within the meaning of the second paragraph of Article 173 of the Treaty.

6 On the other hand the applicant contends in support of the admissibility of the action that the said decision is of direct and individual concern to it with regard to its legal position since it is the only trader-importer established in the Benelux States which regularly imports into the Netherlands brushes originating in the People's Republic of China and since, moreover, the contested decision was adopted on account of the importation with which the present case is concerned.

7 Under the second paragraph of Article 173 of the Treaty the admissibility of an action for a declaration that a decsion is void brought by a natural or legal person to whom the decision was not addressed is subject to the requirement that the decision must be of direct and individual concern to the

JUDGMENT OF 14. 7. 1983 — CASE 231/82

io That conclusion is not invalidated by the fact that the applicant, according to its statement which was not disputed by the Commission, is the only trader- importer established in the Benelux States regularly importing into the Netherlands brushes originating in the People's Republic of China and that it was one of its imports which led to the adoption of the contested decision. As the Court stated in its judgment of 6 October 1982 in Case 307/81 Alusuisse [1982] ECR 3463, a measure does not cease to be a regulation because it is possible to determine the number or even the identity of the persons to whom it applies at any given time as long as it is established that such application takes effect by virtue of an objective legal or factual situation defined by the measure in relation to its purpose.

SPIJKER v COMMISSION

ii In those circumstances the contested decision cannot be challenged by the applicant under the second paragraph of Article 173 of the Treaty. Furthermore, that conclusion is consistent with the scheme of remedies provided for by Community law since the importers in question have the right to challenge before the national courts the refusal on the part of the national authorities, based on the application of Community law, to grant an import licence.

12 For all those reasons the application must be declared inadmissible.

Costs

1 3 Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. As the applicant has failed in its submissions it must be ordered to pay the costs.

Delivered in open court in Luxembourg on 14 July 1983.

For the Registrar H. A. Rühi U. Everling Principal Administrator President of the Third Chamber