C-222/83

(4) T H E MUNICIPALITY O F E S C H - S U R - A L Z E T T E ,

(5) T H E MUNICIPALITY O F S A N E M ,

all represented by A n d r é Elvinger, of t h e L u x e m b o u r g Bar, with an address for service in L u x e m b o u r g at t h e latter's C h a m b e r s , applicants,

v

COMMISSION OF T H E EUROPEAN COMMUNITIES, represented by Marie-José J o n c z y , a m e m b e r of its Legal D e p a r t m e n t , with an address for service in L u x e m b o u r g at t h e office of Manfred Beschel, a m e m b e r of t h e Commission's Legal D e p a r t m e n t , J e a n M o n n e t Building, Kirchberg, defendant,

O B J E C T I O N , at t h e present stage of t h e proceedings, that t h e application for a declaration of t h e nullity of Commission Decision 8 3 / 3 9 7 / E E C , E C S C of 29 J u n e 1983 concerning t h e aids that the L u x e m b o u r g G o v e r n m e n t proposes t o grant t o t h e steel industry (Official Journal L 2 2 7 , p . 2 9 ) , is inadmissible,

Facts and Issues

The facts of the case, the course of the 2. By ah application lodged at the procedure and the conclusions, sub- Court Registry on 3 October 1983, the missions and arguments of the parties applicants, five Luxembourg munici- may be summarized as follows: palities in whose territory the plants of the steel undertakings affected were located, instituted the present pro- ceedings under Article 173 of the EEC Treaty and, "to the extent necessary", I — Facts and written procedure under Article 31 of the ECSC Treaty for a declaration that the aforementioned Decision 83/397 was void. 1. On 29 June 1983 the Commission adopted Decision 83/397/EEC, ECSC concerning the aids that the Luxembourg 3. By ą document lodged at the Court Government proposes to grant to the Registry on 4 November 1983 the steel industry (Official Journal L 227, Commission raised an objection of p. 29). It thereby declared that certain inadmissibility under Article 91 (1) of the aids referred to therein which the Luxem- Rules of Procedure. bourg Government planned to grant to the steel undertakings Arbed and Métal- lurgique et Minière de Rodange-Athus Upon hearing the report of the Judge- (MMRA) were compatible with the Rapporteur and the views of the orderly functioning of the Common Advocate General, the Court decided, by Market to the extent to which the order of 14 March 1984, to assign the conditions and requirements also case to the Fifth Chamber pursuant to referred to therein were satisfied (Article Article 95 of the Rules of Procedure and 1)· to open the oral procedure with regard to the objection of inadmissibility without any preparatory inquiry. Those conditions include in particular the requirement that the recipient under- takings are to carry out net reductions in their production capacity in return for II — C o n c l u s i o n s of t h e p a r t i e s the aids (Article 2 (1)).

The applicants contend that the Court As the Court held in its judgment of 10 should: February 1983 (Case 230/81) Grand Duchy of Luxembourg v European Par- Reserve the decision concerning the liament [1983] ECR 255) where the objection of inadmissibility for the final contested measure relates simultaneously judgment and order the parties to to the spheres of more than one Treaty it proceed with the written procedure of is sufficient, as a foundation for the the substantive proceedings; Court's jurisdiction to consider the In any event, dismiss the objection of whole of the contested measure, if the inadmissibility as unfounded. action is admissible under one of the Treaties. In this case it suffices to refer to Article 173 of the EEC Treaty from I I I — Submissions and argu- which it is clear that the alleged inadmissibility is neither evident nor m e n t s of the p a r t i e s based on compelling grounds. 1. The Commission states in the first place that the applicants are not under- The applicants next examine the criteria takings or associations of undertakings of individual and direct concern laid within the meaning of Article 48 of the down by Article 173 of the Treaty. ECSC Treaty. They therefore have no right to institute proceedings under the second paragraph of Article 33 of that With regard to individual concern Treaty. Accordingly the action for a reference must be made to the judgment declaration of nullity is inadmissible to of 15 July 1963 (Case 25/62 Plaumann the extent to which it is based on the and Co v Commission of the European ECSC Treaty. Economic Community [1963] ECR 95) and to that of 1 July 1965 (Joined Cases Secondly the Commission contends that 106 and 107/63 Alfred Töpfer and in addition the applicants do not satisfy Getreide-Import Gesellschaft v Commis- the requirements of the second para- sion of the European Economic Commu- graph of Article 173 of the EEC Treaty. nity [1965] ECR 405 in which the Court The applicants, by arguing in that respect interpreted the expression "of . . . that the capacity reductions imposed by individual concern" as meaning that the the decision affect the undertakings and decision must affect the applicants "by plants located in their respective reason of certain attributes which are territories, show that the decision can be peculiar to them, or by reason of of direct and individual concern only to circumstances in which they are differen- the steel undertakings themselves and not tiated from all other persons, and by to the municipalities in whose territory virtue of these factors distinguishes them the undertakings are established. Ac- individually just as in the case of the cordingly the action is also inadmissible person addressed". In this case the to the extent to which it is based on the contested decision refers by name to the EEC Treaty. two steel undertakings concerned.

In that respect it is necessary to examine general competitiveness of the economy. the powers and purposes of munici- In those circumstances there is an palities which are legal persons governed obligation to effect the closures by public law having their own primary according to the timetable fixed by the and delegated powers in a given decision, that is to say 31 December territory. Accordingly under the law of 1985, and there is no need for any sup- several Member States, including that of plementary decision. France, the Netherlands and the Federal Republic of Germany, a municipality may seek the annulment of admin- istrative measures even if it cannot claim that its own powers have been affected. In particular the Netherlands Law of 20 Finally the applicants note that the June 1963 concerning administrative system of legal proceedings is based on actions provided that the interests with an equilibrium inasmuch as the restrictive which collective persons or authorities scope of Article 173 is counterbalanced governed by public law are vested are to by the possibility of instituting pro- be regarded as their own interests. The ceedings before a national court which, same must apply in Community law. in turn, may refer a question to the Court of Justice for a preliminary ruling under Article 177 of the Treaty. In fact in this case no remedy under national law is available to the applicants since the aformentioned statute is not open In this case, the applicants are some of to judicial review under Luxembourg the municipalities in which the under- law. Therefore, if the objection of takings affected are established and inadmissibility were accepted they would where the workers personally affected by be deprived of any legal redress, which is the closures reside. The applicants levy contrary to general principles of law and taxes on the undertakings and their to Article 6 of the European Convention employees residing in their territory and, on Human Rights. in exchange, provide public services of an administrative, economic, social and cultural nature. They are therefore vested with their own powers in relation to living and working conditions and employment so that a reduction in the production capacity of their principal industry is of direct concern to them at a human and financial level. IV — O r a l p r o c e d u r e

3 The Luxembourg Government made use of the authorization contained in the contested decision by the Law of 1 July 1983 concerning measures to assist the restructuring and modernization of the steel industry and the main- tenance of the general competitiveness of the economy (Memorial [Orticial Gazette of the Grand Duchy of Luxembourg] of 1. 7. 1983, p 1133). That Law inter alia authorizes the Luxembourg Government to grant Luxembourg steel undertakings an extraordinary aid for 1983 and 1984, to underwrite convertible debentures or stock and to acquire shares in Luxembourg steel undertakings.

4 The Commission has raised an objection of inadmissibility under Article 91 (1) of the Rules of Procedure claiming that the action is not admissible either under the ECSC Treaty or under the EEC Treaty. As the applicants are not

MUNICIPALITY OF DIFFERDANGE v COMMISSION

undertakings or associations of undertakings within the meaning of Article 48 of the ECSC Treaty the action is not admissible under that Treaty. The position is the same with regard to the EEC Treaty because the contested decision is not of direct and individual concern to the applicants within the meaning of the second paragraph of Article 173 of the EEC Treaty.

7 With regard, first, to the provisions of the ECSC Treaty conferring jurisdiction on the Court, it is sufficient to note that Article 33 of the Treaty provides that, in certain circumstances, actions for a declaration that a decision or recommendation of the High Authority is void may be brought by a Member State, the Council or undertakings: and associations of under- takings within the meaning of Article 48 of the ECSC Treaty.

JUDGMENT OF 11. 7. 1984 — CASE.222/83

s That article provides an exclusive enumeration of the persons entitled to bring an action for a declaration that a measure is void. Since local auth- orities such as municipalities are not referred to therein it follows that they may not validly institute such proceedings under the ECSC Treaty.

9 With regard, secondly, to the admissibility of the action under the EEC Treaty it must be recalled that the second paragraph of Article 173 ot the Treaty makes the admissibility of an action brought by a natural or legal person other than the person to whom a Council or Commission decision is addressed, for a declaration that the measure in question is void, subject to the requirement that the contested decision is of direct and individua concern to him. The purpose of that provision is to ensure that legal protection is also available to a person who, whilst not the person to whom the contested measure is addressed, is in fact affected by it in the same way as is the addressee.

,o In this case the contested measure, which is addressed to the Grand Duchy of Luxembourg, authorizes it to grant certain aids to the undertakings named therein provided that they reduce their production capacity by a specified amount. However, it neither identifies the establishments in which the production must be reduced or terminated nor the factories which must be closed as a result of the termination of production. In addition, the decision states that the Commission was to be notified of the closure dates only by 31 January 1984 so that the undertakings affected were free until that date to fix, where necessary with the agreement of the Luxembourg Government, the detailed rules for the restructuring necessary to comply with the conditions laid down in the decision.

On those grounds,

T H E C O U R T (Fifth Chamber)

hereby:

1. Dismisses the application as inadmissible;

2. Orders the applicants to pay the costs jointly and severally.

Galmot Due Everling Kakouris Joliét