C-50/84
ECLI:EU:C:1984:365
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J U D G M E N T OF T H E C O U R T (FIFTH CHAMBER) 27 NOVEMBER 1984 '
Sri Bensider and Others ν Commission of the European Communities
(Steel — Production certificate and accompanying document)
Case 50/84
'" ^£fa°n¿rírVe a '"TT" declareÍ™id - action by a company in formation again t an ECSC general deemon - Capaeity to bring an action-Conditions - Legal personality —Assessment thereof under national law (ECSC Treaty, Art. 33, second para.)
2. Procedure — Admissibility of actions - Assessment by reference to the situation prevailing when the application is lodged - Rectification- Conditions
1. In order to be able to institute pro- 2. The admissibility of an action must be ceedings against a general decision, judged by reference to the situation acting as an undertaking pursuant to prcvailling when the application is the second paragraph of Article 33 of lodged. If at that time the conditions the ECSC Treaty, a company in for an action to be brought are not formation must have acquired legal fulfilled, the action is inadmissible, personality and fulfilment of that unless the defect is rectified within the condition must necessarily be period prescribed for proceedings to established in accordance with be instituted. national law.
In Case 50/84
SRL BENSIDER, Roveredo in Piano (Italy),
SA SIPROTOLE, Neupre (Belgium),
I — Language of the Case: French.
JUDGMENT OF 27. 11. 1984 — CASE 50/84
SA VIELLEVOYE-INTERTOL, Alleur (Belgium), SPRL HAIDON ET HUBIN, Tihange-lez-Huy (Belgium), JEAN MORSA, Embourg-Chaudfontaine (Belgium), SOCIÉTÉ COOPÉRATIVE D Y METAL, Brussels, SA CHARLEMETAL, Brussels,
represented by R. Swennen, of th Liège Bar, with an address for service in Luxembourg at the Chambers of J. Wagener, 10 A Boulevard de la Foire, applicants, v
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, E. Lasnet, acting as Agent, with an address for service in Luxembourg at the office of M. Beschel, a member of its Legal Department, Jean Monnet Building, Kirchberg, defendant,
concerning, at this stage in the procedure, the admissibility of the action brought by the applicants under the second paragraph of Article 33 of the ECSC Treaty,
T H E C O U R T (Fifth Chamber)
composed of: O. Due, President of Chamber, C. Kakouris, U. Everling, Y. Galmot and R. Joliét, Judges,
Advocate General: G. F. Mancini Registrar: D. Louterman, Administrator
gives the following
BENSIDER ν COMMISSION
JUDGMENT
Facts and Issues
The facts of the case, the course of 4 April 1984, the company approved "all the procedure and the conclusions, sub steps taken by the sole director before missions and arguments of the parties the date of approval and entry in the may be summarized as follows: commercial register of the Tribunale di Pordenone [District Court, Pordenone], including in particular the company's decision to bring an action before the Court of Justice in Luxembourg by an I — F a c t s and w r i t t e n p r o c e d u r e application submitted on 25 February 1984 for a declaration that Decision No 3717/83/ECSC was void . . . and to assume responsibility for all obligations arising from the documents signed by the 1. By application lodged at the Court sole director, ratifying and confirming Registry on 25 February 1984, six the same in their entirety". Belgian undertakings and an Italian undertaking (Sri Bensider), which are all steel dealers, applied for a declaration that Commission Decision N o 3717/83/ 4. By application of 27 March 1984, ECSC of 23 December 1983 introducing for steel undertakings and steel dealers pursuant to Article 91 of the Rules of a production certificate and an ac Procedure of the Court, the Commission companying document for deliveries of lodged an objection of inadmissibility. certain products (Official Journal 1983, The objection is based, as regards the six L 373, p. 9) was void. That decision Belgian undertakings, on the submission appeared in the Official Journal of that the action was brought out of time 31 December 1983. and, in the case of Sri Bensider, on the alleged lack of capacity of that under taking to be a party to legal proceedings at the time in question. The Commission claims that the Court should: 2. By application lodged at the Court on 8 March 1984, the applicants also sought suspension of the operation of the contested decision. By order of 23 May Declare the application inadmissible; 1984, the President of the Court dis missed that application. Order the applicants to pay the costs.
3. Sri Bensider was constituted by 5. The applicants, and in particular notarial act on 9 February 1984, but was Bensider, submitted their observations on not entered in the commercial register the objection of inadmissibility on 4 May of the Tribunale di Pordenone until 1984. In their submissions in reply, the 13 March 1984. At its general meeting of applicants claim that the Court should:
JUDGMENT OF 27. 11. 1984 — CASE 50/84
Declare their application to be ad regards those six applicants, the action is missible; inadmissible.
Request the Commission to submit 4. As regards Sri Bensider, the observations on the substance of the Commission considers that although the case. action was not brought out of time, since the application was lodged within the 6. By order of 20 June 1984, the Court period prescribed in Article 33 of the assigned the case to the Fifth Chamber ECSC Treaty, as extended on account of for consideration of the admissibility of distance by virtue of Article 1 of Annex the application. II to the Rules of Procedure, the action is also inadmissible in that case. "When the application was lodged, namely on 7. Upon hearing the report of the 25 February 1984 (which was also the Judge Rapporteur and the views of the last day of the prescribed period), Sri Advocate General the Court decided to Bensider was not yet entered in the open the oral procedure on the objection commercial register, and therefore on of inadmissibility without any pre that date it had not acquired legal per paratory inquiry. sonality under Italian law, which is applicable to this case. Consequently it was not entitled on that date to be a II — Submissions and arguments party to legal proceedings.. That is the of t h e p a r t i e s as t o t h e effect of the provisions of the Italian a d m i s s i b i l i t y of t h e a c t i o n Civil Code and in particular of Articles 2331 and 2475 which expressly provide that a company acquires legal personality 1. The Commission considers that the only by being entered in the commercial action brought by the six applicants who register. are resident in Belgium is inadmissible since the application was lodged out of time. 5. The applicants are of the opinion that, as far as the six Belgian under 2. The period within which proceedings takings are concerned, the action was must be instituted, pursuant to the third not brought out of time. They point out paragraph of Article 33 of the ECSC that the action was brought by under Treaty in conjunction with Articles 80 takings whose object in all cases is the and 81 of the Rules of Procedure of the marketing of second steel products. Court and Article 1 of Annex II thereto, Thus, the applicants are justified in expired in this case, as far as the six instituting proceedings by means of a Belgian applicants are concerned, on single application because their common 17 February 1984. rights of action are connected and are even indivisible. In those circumstances it is proper to apply to all the applicants 3. The Commission points out that in the longest extension on account of its decisions the Court has emphasized distance, namely that which applies in that the period within which proceedings the case of Bensider. may be initiated must be strictly observed. In that connection it refers to the judgment delivered on 9 February 6. Moreover, the applicants consider 1984 in Case 284/82, Acciaierie e Ferriere the allegation that Bensider did not exist Bussent SpA ν Commission, [1984] ECR on 25 February 1984 to be incorrect. It is 557. It therefore considers that, as apparent from the documents submitted
BENSIDER ν COMMISSION
to the Court that the company was consequences attaching to that formality constituted by notarial act on 9 February vary from one legal system to another 1984. In order to acquire legal perso (annulment, subsequent ratification and nality the company had to be entered in so forth). A provision might have been the commercial register. That was done included in the Rules of Procedure of immediately. It was merely because of the Court adopting one system rather the formalities inherent in registration of than another, but in fact there is no that kind that the company was not provision of that kind. It must therefore actually registered until 13 March. be concluded that the rule upon which the Commission seeks to rely is 7. In accordance with the usual practice enforceable only before Italian courts in Italy, on 4 April 1984 the steps taken and cannot be validly relied upon before by the sole director of the company the Court of Justice of the European before it was entered in the commercial Communities. register were approved and ratified at a general meeting. That ratification is 9. That position is further confirmed by retroactive. The applicants therefore the fact that the contested decision is maintain that, as from 9 February 1984, likely adversely to affect Sri Bensider, the date of the instrument constituting since it specializes in the marketing of the company, the company could validly second steel products. be a party to legal proceedings.
8. In the second place, it is to be noted Ill — Oral procedure that the Commission seeks to rely before the Court of Justice upon rule of Italian municipal law which does not appear- Oral argument was presented by the either in the ECSC Treaty or in the applicants, represented by R. Swenncn, Rules of Procedure of the Court. The and the Commission, represented by E. requirement of prior registration in a Lasnet, at the sitting on 25 September commercial register before a company 1984. may be a party to legal proceedings The Advocate General delivered his exists in the law of various States, par opinion at the sitting on 23 October ticularly in Belgian law, but the 1984.
Decision
ι By application lodged at the C o u r t Registry on 25 February 1984, Sri Bensider, whose registered office is at R o v e r e d o in P i a n o , Italy, and six o t h e r applicants resident in Belgium, namely SA Siprotole, SA Viellcvoye- Intertol, Sprl H a i d o n et H u b i n , J e a n M o r s a , Société Cooperative D y Metal and SA Charlemetal, b r o u g h t an action u n d e r the second paragraph of A r t i d e 33 of the E C S C T r e a t y for a declaration that Commission Decision N o 3 7 1 7 / 8 3 / E C C of 23 D e c e m b e r 1983 introducing for steel undertakings
JUDGMENT OF 27. 11. 1984 — CASE 50/84
and steel dealers a production certificate and an accompanying document for delivery of certain products (Official Journal 1983, L 373, p. 9) was void.
2 The Commission objected that the action was inadmissible and asked the Court to give a decision on that objection without considering the substance of the case. The Court referred the case to the Fifth Chamber for consideration of the admissibility of the action.
3 As regards the six applicants resident in Belgium, the Commission maintains that the period laid down in the third paragraph of Article 33 of the ECSC Treaty within which proceedings are to be instituted expired on 17 February 1984. As regards those applicants, therefore, the action is inadmissible as having been brought out of time.
4 Although Sri Bensider's action was brought on the last day of the prescribed period, which included the extension on account of distance granted to parties resident within the territory of the Italian Republic by virtue of Annex II to the Rules of Procedure, that action is, in the Commission's view, also inadmissible because on that date the company has not been entered in the commercial register. Under Italian law it had therefore not acquired legal personality and was not entitled to be a party to legal proceedings.
s The applicants do not dispute the correctness of those arguments. They claim however that Sri Bensider was entered in the commercial register on 13 March 1984 and that, in accordance with normal practice in Italy, the steps taken by the sole director of the company before it was thus registered were approved an ratified at a subsequent annual general meeting held on 4 April 1984. That ratifications was retroactive. Moreover, the Commission may not, in their view, validly have recourse to an internal rule of Italian law in order to prevent an action before the Court of Justice.
6 The applicants contend that, since the action is admissible as far as Sri Bensider in concerned, the same applies to the other applicants. All the applicants are engaged exclusively in the marketing of second steel products and they are therefore entitled to institute proceedings by means of a single application since their common rights of action are connected and are even indivisible.
BENSIDER ν COMMISSION
7 Under the second paragraph of Article 33 of the ECSC Treaty undertakings may institute proceedings for a declaration that general decisions which they consider to involve a misuse of powers affecting them are void. If the under taking is a company in formation, that company must, in order to institute proceedings, have acquired legal personality, and that fact must necessarily be established in accordance with national law.
s The admissibility of an action must be judged by reference to the situation prevailing when the application is lodged. If at that time the conditions for an action to be brought are not fulfilled, the action is inadmissible, unless the detect is rectified within the period prescribed for proceedings to be instituted.
9 The parties agree that when the application was lodged, on the last day of the prescribed period, Bensider had not yet acquired legal personality under its national law. It follows that in this case the action is inadmissible.
io As regards the six Belgian applicants, it need only be stated that the application was lodged after the expiiy of the period prescribed for proceedings to be instituted by undertakings resident within the territory of the Kingdom of Belgium.
n The application must therefore be dismissed as inadmissible in its entirety.
Costs
.2 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the applicants have failed in their submissions, they must be ordered to bear the costs jointly and severally.
OPINION OF MR MANCINI — CASE 50/84
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 bear the costs jointly and severally.
Due Kakouris
Everling Galmot Joliét
Delivered in open court in Luxembourg on 27 November 1984.
For the Registrar H. A. Rühi O. Due Principal Administrator President of the Fifth Chamber
O P I N I O N OF M R ADVOCATE GENERAL MANCINI DELIVERED O N 23 OCTOBER 1984 '
Mr President, preliminary consideration of the admis- Members of the Court, sibility of the originating application.
1. By order of 20 June 1984 the Court The background to that development assigned Case 50/84, Bensider and Others can be described in a few words. By v Commission, to the Fifth Chamber for application lodged at the Court Registry
l — Translated from the Italian.