C-333/85

OPINION OF MR DA CRUZ VILAÇA — CASE 333/85

OPINION OF MR ADVOCATE GENERAL DA CRUZ VILAÇA delivered on 21 January 1987 *

Mr President, and steel products. 1 Those products did not Members of the Court, include steel pipes and tubes.

1. The applicants in these proceedings — 6. However, the arrangement was accom­ the German steel undertakings panied by an exchange of letters on the Mannesmann-Röhrenwerke AG and same date which was designed to prevent Paderwerk Gebrüder Benteler GmbH & Co. diversions of trade from products covered — seek the annulment of Council Regu­ by the arrangement towards steel pipes and lation (EEC) No 2355/85 of 6 August 1985 tubes, which at the time were not subject to supplementing Regulation (EEC) No 60/85 any restrictions. In that regard, the of 9 January 1985. Community considered that for the duration of the arrangement, that is to say until the end of 1985, its annual exports of steel pipes I — 2. Both undertakings manufacture and and tubes to the United States were unlikely market steel pipes and tubes, products to exceed the average percentage of which are not included in Annex I to the Community sales on the American market ECSC Treaty and which are therefore during the period from 1979 to 1981, with subject to the rules of the EEC Treaty. the result that there would not be any diversions of trade. However, in the event of problems arising in that market, a consul­ 3. Between them, the applicants account for tation procedure could be set in motion enabling the parties to discuss the trend in approximately 70 % of German exports of Community exports of pipes and tubes. those products to the United States.

10. the Community was to restrain exports III—16. That is the regulation contested to the United States of steel pipes and by the applicants; they seek its annulment tubes to a level of 7.6% of United on the ground that the manner in which it States apparent consumption for 1985 divides the Community export quota for and 1986; during that period, export OCTG tubes into national sub-quotas places licences would be required; the German steel industry at a disadvantage and is detrimental to its interests. 11. within that 7.6% limit, exports of OCTG tubes were not to exceed 10% IV— 17. The Council begins by challenging of United States apparent consumption the admissibility of the application, and that of such products. is undoubtedly the first question which needs to be resolved in the analysis of this 12. Pursuant to that arrangement, the case. Council adopted Regulation (EEC) No 60/85 of 9 January 1985 3 laying down various implementing measures. 18. The Council doubts whether the applicants have a genuine legal interest in 13. In Annex III to that regulation, the bringing an action, and finds no justification Commission allocated among the Member for the initiation of proceedings by them on States for all the products concerned the behalf of all the German pipe and tube quantities to which the Community had exporters, still less on. behalf of the Federal agreed to limit its exports, and left it to Republic of Germany which is the real those States to share out the quantities beneficiary of the quota allocated under Regulation No 2355/85. allocated to them among undertakings in accordance with Objective criteria' (third recital in the preamble to the regulation). 19. On the basis of an analysis of the requirements laid down by the second 14. As far as OCTG tubes were concerned, paragraph of Article 173 of the EEC Treaty however, Annex III to the regulation merely for an action for annulment brought by a left the allocation of the Community natural or legal person to be admissible, the sub-quota amongst the Member States to be Council comes to the conclusion that the decided on subsequently by the Council, action is inadmissible on the ground that, acting by a qualified majority on a proposal quite apart from the question whether from the Commission, before 31 January Regulation No 2355/85 is a genuine regu­ 1985. lation or a decision addressed to the Member States, the applicants cannot claim 15. There was a delay in the allocation of that it is of direct and individual concern to that sub-quota, which was carried out by them. Regulation (EEC) No 2355/85 of 6 August 1985. 4According to the scale for allocation 20. Hence, in the Council's view, the means 2 — Official Journal 1985, L 9, p. 1. of redress available to the applicants is not 3 — Official Journal 1985, L 9, p. 13. an action under Article 173 of the EEC 4 — Official Journal 1985, L 222, p. 1. Treaty but an action before a national court

25. the measure in question must be a 35. On other occasions, the Court has decision; preferred not to state its views on the question whether or not the contested 26. it must have the appearance or be in the measure is a genuine regulation and has form of a regulation (or a decision merely held that the measure was not of addressed to another person); direct and individual concern to the 7 applicant. 27. it must be of direct concern to the applicant; and 5 — See, for instance, the judgment of 14 December 1962 in Joined Cases 16 and 17/62 Confédération nationale des 28. it must be of individual concern to him. producteurs de fruits et légumes v Council [1962] ECR 471 at p. 478. See also the Opinion of Mr Advocate General Lagrange in that case, ECR 481 at p. 484 et seq., and of Mr 29. As those requirements are cumulative Advocate General Warner in Case 113/77 Toyo Bearing Company v Council [1979] ECR 1212 at p. 1243 and in the application will not be admissible unless Joined Cases 789 and 790/79 Calpak v Commission [1980] they are all satisfied. ECR 1963 at pp. 1970 and 1971. 6 — See the judgment of 13 March 1968 in Case 30/67 Imolese v Council [1968] ECR 115 at p. 121; the judgment of 11 30. However, the applicants do not July 1968 in Case 6/68 Zuckerfabrik Watenstedt v Council [1968] ECR 409 at p. 414; the judgments of 16 April 1970 consider it necessary to determine whether in Case 63/69 Compagnie française commerciale v Commission [1970] ECR 205 at p. 211 and in Case 64/69 or not the contested Community measure Compagnie fiançasse commerciale v Commission [1970] ECR constitutes a 'genuine' regulation since in 221 at p. 227; and the judgment of 20 November 1979 in Case 162/78 Wagner v Commission [1979] ECR 3467 at p. their view it is sufficient to demonstrate that 3487. the measure is of direct and individual 7 — See, for instance, the judgment of I April 1965 in Case concern to them for the application to be 40/65 Sgarlata v Commission [1965] ECR 215 at p. 226; and the judgment of 16 March 1978 in Case 123/77 admissible. UNICME v Council [1978] ECR 845 at pp. 851 to 853.

42. It is indisputable that Regulation No 60/85 contains essentially provisions of a 38. I propose therefore to begin my exam­ legislative nature whose purpose is to ination of the issue of admissibility by deter­ regulate the conditions for the application mining the nature of the measure in of the arrangement on voluntary restraint question. concluded with the United States of America in January 1985. VI — 39. The aim of the second paragraph of Article 173, so far as it concerns us here, 43. It remains to be seen, however, whether is to prevent a Community institution, by those combined legislative measures include choosing the form of a regulation, from provisions which are of individual concern concealing a decision addressed to an indi­ to the applicants and thus, by their very vidual, thereby precluding the latter from nature, fall outside the overall classification exercising the right of action available to of those measures. him under the first part of the second paragraph of Article 173. The choice of 10 form cannot change the nature of the 44. The Court has already acknowledged 8 measure. that a measure which is considered a regu­ lation in its entirety may contain provisions which are of individual concern to certain 40. Hence it is not the 'official title of a persons and are not therefore in the nature measure' that matters, but rather its purpose of a regulation.

8 — See the judgment of 5 May 1977 in Case 101/76 Konin- 9 — Sec the judgment of 14 December 1962 in Joined Cases 16 klijke Scholten-Honig v Council and Commission [1977] and 17/62 Confédération nationale des producteurs de fruits ECR 797 at p. 805; the judgment of 20 November 1979 in et legumes v Council [1962] ECR 471 at p. 479; and the Case 162/78 Wagner vCommission [1979] ECR 3467 at judgment of 11 July 1968 in Case 6/68 Zuckerfabrik pp. 3486 and 3487; and the judgment of 17 June 1980 in Walenstedt v COUNCIL [1968] ECR 409 at p. 415. joined Cases 789 and 790/79 Calpak v Commission [19801 ECR 1949 at p. 1961. 10 — See the judgment of 14 December 1962 in Producteurs de fruits, supra, at p. 479.

53. In my view, however, the context in 48. In any event, the applicants maintain which those tables are set is unequivocal. that Regulation No 2355/85 is not of a The general rules for implementing the legislative nature but is rather in the nature voluntary-restraint arrangement on the of a decision addressed to the six under­ exportation of pipes and tubes to the United takings which are the sole exporters of States were laid down by Regulation No OCTG tubes in Germany and whose names 60/85 and the tables in question constitute a were known from the outset. natural complement to Article 3 (1) thereof for the implementation of which they are

11 — Judgment of 11 July 1968 in Case 6/68 Zuckerfabrik Watenstedt [1968] ECR 409 at p. 415; judgment of 5 May 49. In my view, however, that fact is not, in 1977 in Case 101/76 Koninklijke Scholten-Honig v Council and Commission [1977] ECR 797 at p. 808; and judgment itself, sufficient to deprive the measure in of 17 June 1980 in Joined Cases 789 and 790/79 Calpak question of its status as a regulation. [1980] ECR 1949.

MANNESMANN-RÖHRENWERKE v COUNCIL

61. In those circumstances, it is even ques­ tionable whether this is a case of genuine 55. It must be recognized that this will retroactivity. The situation is similar to that make examination of the problem more in which a tax measure is adopted by complicated. altering, midway through the year, either the rate of tax or the relief available in respect of any income received during that 56. The number and identity of the under­ year. takings exporting OCTG tubes to the United States in the first seven months of 1985 were definitively established and could 62. Even so, it may be argued that, as have been ascertained by the Council. regards the past, the manner in which the regulation applies to the applicants differs from that in which it will affect, in the future, any undertakings already in 57. Therefore the same reasoning could be existence or yet to be set up. applied to those undertakings as that which formed the basis of the Court's judgment in 63. However, as the Court has already 12 — That interpretation is supported by, for instance, the judgment of 16 April 1970 in Case 64/69 Companie held, 14 'the fact that a general provision française commerciale [1970] ECR 1979 at p. 227, paragraph 12 of the decision; the judgment of 18 January 1979 in Joined Cases 103 to 109/78 Société usines de Beauport v 13 — Judgment of 6 October 1982 in Case 307/81 Alusuisse v Council[1979] ECR 17 at pp. 24 and 25; and the Opinion Council and Commission [1982] ECR 3463 at p. 3473. of Mr Advocate General Warner in Joined Cases 789 and 14 — See the judgment of 16 April 1970 in Case 63/69 790/79 Calpak [1980] ECR 1949 at p. 1971. Compagnie française commerciale [1970] ECR 205 at p. 211.

68. Should a different view be taken, the 73. As we have seen, the applicants take the measure in question would be a 'decision view that the Council measure at issue is of addressed to another person', adopted in individual concern to them inasmuch as it the form of a regulation, to which the represents ultimately a collective decision second paragraph of Article 173 of the EEC addressed to six undertakings whose names Treaty would, in my view, be applicable, were known from the outset and it is not a thereby enabling any natural or legal person measure couched in general and abstract to whom that decision is of direct and indi­ terms which, in accordance with objective vidual concern to bring an action. criteria, restricts exports effected by all the undertakings operating in a certain sector within the Community. 69. Undeniably, the Court has already 15 held that the expression 'a decision 16 — Judgment of 15 July 1963 in Plaumann at p. 107. 17 — See, for instance, the judgment of 2 July 1964 in Case 1/64 15 — Judgment of 15 July 1963 in Case 25/62 Plaumann v Glticoseries réunies v Commission [1964] ECR 413 at p. 417; Commission [1963] ECR 95 at p. 106. and the judgments in Bock and CAM, cited in footnote 19.

MANNESMANN-RÖHRENWERKE v COUNCIL

76. In those circumstances, the regulation in question applies not only to existing under 83. Is that view tenable? takings engaged in exportation at the time of its adoption, but also to all undertakings 84. Support for that view may be found in a which might be set up in the future and, in line of decisions in which the Court has any event, might apply for the issue of based the admissibility of an application in export licences. particular on the fact that the contested measure applies to past or present events, in

78. The applicants contend that new the substance of the case can be considered, producers would encounter difficulties in notwithstanding the fact that the alternative commencing operations and in gaining claim expressly put forward by the access to that market, which rules out the applicants in their reply was made out of possibility of new undertakings entering the time? German market. 86. I doubt whether that is the best 79. However, Regulation No 2355/85 solution. applies to all specialized producers throughout the Community and its nature is 87. I would refer to the view I expressed not affected by the unlikely possibility of earlier that the contested measure was in the new German undertakings being set up and nature of a regulation, even as regards the engaging in the production and export of period prior to its publication. OCTG tubes. 88.

OPINION OF MR DA CRUZ VILAÇA — CASE 333/85

date prior to its publication is an objectively 94. the purpose attributed to the second unavoidable practical consequence of the paragraph of Article 173, namely to belated agreement reached by the Council prevent individuals from being deprived concerning OCTG tubes and that conse­ of their means of redress against a quence naturally arises as from 1 January decision which is of direct and indi­ 1985, the date of the entry into force of the vidual concern to them but which arrangement with the United States, which appears to be disguised in the form of a had already determined the duration of the regulation (or hidden behind a decision period fixed in Article 1 of Regulation No addressed to another person) ; 60/85 as regards the export of tubes other than OCTG tubes. 95. the reference to a misuse of powers as a concept involving recognition of the fact that a provision which appears to 89. Hence the 'retroactivity' of Regulation be of general concern is in fact of indi­ No 2355/85 seems to be objectively uncon­ vidual concern. 21

MANNESMANN-RÖHRENWERKE v COUNCIL

102. It is true that, as the third recital in the 105. In their view, that consequence would preamble states, the quota must be allocated follow automatically even if a discretion were conferred on national governments for 22 — See, for instance, the judgment of 1 July 1965 in Joined the purpose of sharing out their quotas. Cases 106 and 107/63 Totpfir v Commission [1965] ECR 405 at p. 411; judgment of 10 December 1969 in Joined That discretion would always have to be Cases 10 and 18/68 Eriiknia v Commision [1969] ECR exercised in accordance with the criteria laid 459 at pp. 480-483; judgment of 16 June 1970 in Case 69/69 Alean v Commision [1970] ECR 385 at p. 394; down in Article 5 (2) of Regulation No judgment of 13 May 1971 in Joined Cases 41 to 44/70 International Fruit Company v Commission [1971] ECR 411 60/85 and in compliance with the principle at pp. 422 and 423; judgment of 16 March 1978 in Case of equal treatment, which would rule out 123/77 UNICME [1978] ECR 845 at p. 852. See also the pioneering Opinions of Mr Advocate General Roemer in the possibility, in the event of a reduction of Case 25/62 Plaumann [1963] ECR 95 and of Mr Advocate General Gand in Case 38/64 Getreide-Import Gisellschaft the national quota and if other factors [1965] ECR 203 at pp. 211 and 212. remained constant, of placing a given

OPINION OF MR DA CRUZ VILAÇA — CASE 333/85

111. A decision by a Member State is sarily have an adverse effect on the needed for the legal interests of the under applicants' export quota. takings concerned to be affected. An analogy may therefore be drawn to some extent with a situation in which a Member 106. In my view that consideration does not State is granted authorization to open a provide a sufficient reason for regarding the tariff quota. contested measure as being of direct concern to the applicants, for the purposes 112. In the latter case, authorization of the second paragraph of Article 173. I granted to the Member States normally would recall that, as the Court held in its involves (as was pointed out by the Court in

113. That, at least, is the applicants' point of existence of specific circumstances' is view. necessary in addition to the contention that the measure affects the applicant's position on the market. 114. In my view, which is consistent with the interpretation given by the Council in the reply, that point of view is not neces 107. Mutatis mutandis the same consider sarily correct. ations are applicable in this case. 115. By providing in Article 4 of Regulation No 60/85 for the transfer to a Community

. which are listed exhaustively' and the applicants relied on that consideration in 116. It might be argued that Article 4 is support of the view that 'accordingly the intended only to ensure that the best use is Member States have no discretion in sharing made of the system when the export out the quotas'. capacity of the undertakings of each State proves to be insufficient to fill the national quota, a matter which is not in itself within 23 — Judgment of 10 December 1969 in Joined Cases 10 and 18/68 Eridania [1969] ECR 459 at p. 481. the discretion of the Member States.

117. Clearly, however, the aforesaid 121. In those circumstances, there is no provision does not distinguish between the guarantee that the annulment of the various possible reasons for withholding contested measure would give the applicants licences and refers merely to the 'fraction of the desired advantage and place them in the the allocation for which they did not issue position to which they consider themselves licences', without indicating that certain entitled. The aim they pursue could be reasons are lawful and others are unlawful. attained only if the Member State concerned shared out the national quota and issued the corresponding export licences. 118. That interpretation is supported by the fact that unissued licences are transferred to the Community reserve each quarter, with 122. Those licences could place the the result that it is up to the Member States applicants in a less advantageous position (which are instructed by Article 5 of the than that which would result from the regulation to spread exports over the whole application of the criteria for which they year) to avoid that consequence by judi­ contend. In that case, the only course of ciously timing the issue of licences. action open to them would be to challenge the decision of the national authorities in the national courts. 119. In addition, the third subparagraph of Article 5 (1) provides that, within broad 123. In my view, therefore, the disputed limits, 'Member States may ... issue further measure does not have direct effect in licences in 1985 and 1986 respectively, in relation to individuals and may not for that respect of the unused part of licences issued reason be contested before the Court of which have been returned to their Justice. competent authorities in 1985 or in 1986'. The wording used by the legislature ('may issue') clearly indicates that the Member 124. Should the contested measure not be States are empowered not to issue new considered a true regulation, the inescapable licences to replace those which have not conclusion will be that it is a decision been used. addressed to the Member States which is of direct and individual concern to the applicants, for the purposes of the second paragraph of Article 173. 120. The correctness of that view, which I share with the Council, can be verified by 24 analogy with the Alean judgment, if we 125. That conclusion is not altered by the consider the hypothesis of the contested fact that the discretion conferred on the measure being declared void. In accordance Member States for the purpose of sharing with the Court's judgment, the Council out the national quotas is subject to certain would amend the annulled regulation by limitations. Any discretionary power is adopting a new scale for allocation on the restricted, whether by the applicable general basis of which the Commission would principles or by the criteria specifically laid calculate the quantities making up the down by the legislature. Article 5 merely national quotas. Those quotas would be lays down criteria or parameters governing shared out by the Member States in the exercise of the discretion, but does not accordance with Article 5 of Regulation No abolish it altogether. 60/85.

acknowledged that the Member States enjoy what I said in connection with the and must enjoy a degree of discretion, but requirement of individual concern. that the Council did not restrict the exercise thereof to a sufficient extent since it did not 132. One thing is certain in my view: the provide the Member States with sufficiently nature of the Member States' action (always objective criteria for their decisions. in connection with Regulation No 60/85) did not vary according to whether it was 127. It cannot be stated, either simulta­ taken before or after the date on which neously or in succession, first that the Regulation No 2355/85 was adopted. Member States merely apply the objective and restrictive criteria listed in Article 5 and IX — 133. In the light of the foregoing secondly that those criteria are not suffi­ considerations, I have come to the ciently objective or restrictive, without one conclusion that the application for the of those statements being incorrect. annulment of Regulation No 2355/85 is inadmissible and, consequently, I suggest 128. The conclusion which I have reached that the Court should dismiss it as such. certainly seems to me to be applicable to the period following the adoption of the 134. Hence I propose to consider the contested regulation and I do not believe substance of the case only as an alternative that it should be any different as regards the proposition. period in respect of which the regulation has retroactive effect. X —135. The applicants rely on two sets of submissions in support of their application. 129. The provisional licences which the export undertakings were able to use during that period, on the basis of the 136. In the first place, they allege that Commission's authorization and with Regulation No 2355/85 infringes essential reference to the percentages specified in procedural requirements as it does not them, were issued by the competent auth­ contain a statement of reasons regarding the orities of the Member States and were, of allocation of national quotas, contrary to course, governed by the criteria laid down Article 190 of the EEC Treaty. in Article 5 of Regulation No 60/85, which was already in force. 137. In the second place, the applicants allege a breach of the general principles of non-discrimination, proportionality and equal 130. The Commission merely fixed in treatment, amounting to a misuse of powers. advance, on a provisional basis, the percentages which it was the responsibility of the Council to fix definitively. 138. I propose to deal briefly with each of those submissions.

140. The various reasons on which the Member States which were involved in its provisions concerned are based are to be preparation and adoption. found in the recitals in the preamble to Regulation No 60/85: the voluntary- restraint arrangement concluded with the 143. The Court has also expressly accepted United States which forms the 'background' a statement of reasons which refers to a to the regulation (first recital); the reference 26 previous measure. to the practical reasons for allocating among the Member States the quantities allotted to the Community as a whole, in 144. The argument to the effect that there is keeping with the Community nature of the a duty to provide a statement of reasons limits imposed (third and fourth recitals); under the quota system established pursuant and the basic criterion used in determining to Article 58 of the ECSC Treaty is the allocation, namely that the latter 'should untenable, since that provision is concerned take account of traditional trade patterns' with production quotas and with a more (fifth recital). extensive and more far-reaching inter­ vention mechanism involving the exercise of a different set of powers by the competent Community institution. 25 141. As the Court has consistently held, the preamble to a regulation may be confined to explaining 'the nature of the XII— 145. The applicants also contend that measure in question' by indicating the the allocation of the Community export 'general situation' which led to its adoption quota among the Member States by Regu­ and the 'general objectives' which it is lation No 2355/85 reduced the percentage intended to achieve, but it is not required to allotted to the Federal Republic of Germany set out the numerous and complex facts on without justification, thereby placing the the basis of which the regulation was applicants at a disadvantage in relation to adopted or to provide a complete evaluation their competitors in other Member States. of those facts or, in particular, of all the technical choices which it envisages 'provided that those matters fall within the 146. In conformity with the arrangement in general scheme of the whole of which they the form of an exchange of letters with the form part'. United States, concluded in January 1985, Regulation No 60/85 fixed the Community export quota for steel pipes and tubes at 7.6% of United States apparent consumption and the export sub-quota for 142. A fortiori, that would also appear to be OCTG tubes at 10% of apparent the case where a decision is addressed to consumption in that country.

149. The applicants contend that in 1983 154. In addition, according to the there was a sharp increase in the volume of applicants, a part of Germany's quota for exports from other Member States, whereas OCTG tubes is reserved for one under­ German producers had maintained their taking, namely Hoesch AG, in order to share of the United States market in OCTG enable it to supply its Texan subsidiary, tubes at the same level as in 1979-81. HTP . The quantity has been fixed at 10 000 tonnes, to be deducted from the 4.38% share of the quota reserved for German 150. As a result of that conduct on the part producers, with the result that their real of the other Community producers, the share is reduced to 3.95%. Community's share of apparent consumption on the United States market in 155. Moreover, they maintain that the OCTG tubes rose to almost 20 % in contrast Council has not always adhered to its basic to the 8.76% share which it had held in the criterion and has departed to a greater or 1979-81 period, which prompted the iron lesser extent from the figures which would and steel industry in the United States to have been applicable if the 1979-83 react and the United States Congress to reference period had been adopted. adopt in October 1984 the Trade and Tariff Act imposing an absolute ban on imports of steel pipes and tubes from the Community. 156. In my view, the applicants' argument is not sufficiently strong to substantiate their claim. 151. During the 1979-81 period, the German undertakings' share of apparent 157. In the first place, it seems to me that consumption of OCTG tubes in the United the Council was under no obligation to take States amounted to 4.44%, corresponding 1979-81 as the reference period for the to 50.96% of the total Community quota. calculation of the national quotas.

161. Instead, it was a document designed to 165. In choosing 1979-83 as the reference allay the United States' concern by setting period, the Council exercised the discretion out the Communities' forecasts concerning conferred upon it under the common market trends and introducing a consul­ commercial policy. Moreover, Regulations tation procedure to be followed if there No 60/85 and No 2355/85, being measures should be an increase in Community exports which are essential for the implementation that was likely to cause disturbances in of the common commercial policy', and in trade between the two parties. particular the export policy, were adopted under Article 113 of the EEC Treaty.

OPINION OF MR DA CRUZ VILAÇA — CASE 333/85

decrease) and not of 11.9 percentage points 171. As for the other countries, the table as the applicants contend on the basis of the produced by the applicants shows a table set out in their application. The calcu­ maximum upward adjustment of lation of Germany's quota cannot exclude 4.2% — the percentage by which Italy any sub-quota which may have been increased its share of Community exports in reserved for a particular undertaking. The 1979-81. regulation makes no reference to it and it can only have come into existence, as a result of a political compromise, when the national quota was shared out by Germany; 172. In any event, whatever the significance consequently, it can be challenged only in of those adjustments, I believe that they the national courts. could be annulled only if they were arbitrary, which is not the case here because 170. In any event, the downward adjustment they were based on an objective reference of Germany's share of apparent period (export patterns in 1979-83) selected consumption in the United States in by the competent Community institution in 1979-81 —from 4.44 to 4.38%— was only the exercise of its discretion and not arbi­ 0.06%. trarily.

XIII — 173 . In the light of the foregoing considerations, I consider that this application must be dismissed as inadmissible.

174. Should the Court take a different view, I suggest that it dismiss the application as unfounded.

175. In accordance with Article 69 (2) of the Rules of Procedure, the applicants should be ordered to pay the costs since they have failed in their submissions.