C-247/87
ECLI:EU:C:1988:544
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OPINION OF MR LENZ —CASE 247/87
OPINION OF MR ADVOCATE GENERAL LENZ delivered on 14 December 1988 *
Mr President, managed to obtain licences from the French Members of the Court, authorities since these have been systemat ically allocated to the groupement d'intérêt économique bananier (which also figured prominently in Case 206/87) since this body has undertaken to observe a particular price discipline. 1. The case on which I deliver my opinion today essentially concerns the question whether traders may bring proceedings against the Commission if, in spite of requests to do so, it has not commenced 4. Consequently, on 17 April 1987, the proceedings against a Member State for applicant approached the Commission and failure to fulfil its obligations. reported the conditions on the French banana market (already described in detail in Case 206/87). In the applicant's view, the conduct of the French Republic is contrary to both Article 30 of the EEC Treaty and A — Facts Article 2 of the Lomé Convention of 28 February 1975 and it is therefore obliged to compensate it for loss of business in the period from October 1986 to October 1987. It formally requested the Commission to bring proceedings under Article 169 of the 2. This case also concerns the importation EEC Treaty for the purpose of: into France of bananas in free circulation in a Member State. The applicant is a company having its registered office in Brussels whose business is inter alia trading in fruit (and which incidentally must be the main supplier (i) having it declared that the French of the applicant in Case 206/87). Republic had failed to fulfil its obli gations under Article 30 et seq. of the EEC Treaty and Article 2 and Protocol 6 of the Lomé Convention;
3. The applicant maintains that it has repeatedly received orders from French customers but has not been able to export the required goods to France. Its lorries (ii) requiring the French Republic to have been repeatedly turned back at the abolish the quotas which it applies to frontier (only twice was it possible to effect bananas originating in or coming from imports in this way) and in import allo the European Economic Community or cations its French customers have not Associated States and to bananas orig-
* Original language: German.
STAR FRUIT v COMMISSION
mating in non-member countries in free 8. 1. It is quite clear to me that the circulation in the Community; reference in the application to Article 173 of the EEC Treaty is irrelevant. There is no ground for an action for annulment in this case since the applicant has not specified (iii) requiring the French Republic to any act of the Commission which could compensate the applicant for losses possibly be annulled. After this was pointed amounting to BFR 87 451 400 incurred out it appears that even the applicant in respect of certain non-deliveries. realized this fact since it responded simply by saying that it was leaving the question of the admissibility of its application under Article 173 for the Court to determine. 5. In response the applicant received only a letter from a Head of Division in the Commission dated 4 May 1987, notifying it that the competent departments of the Commission would take the necessary measures and inform the applicant thereof; 9. Consequently, the admissibility of the consequently, the applicant brought this application has to be considered only with action by application lodged at the Court reference to the third paragraph of Article Registry on 14 August 1987. 175, according to which any natural or legal person may, under the conditions laid down in the first and second paragraphs of that 6. In its application, which is based on article, complain to the Court of Justice that Articles 173 and 175 of the EEC Treaty, the an institution of the Community has failed applicant seeks a declaration that the to address to that person any act other than Commission failed to reach a decision a recommendation or an opinion. against the French State in respect of the applicant's request of 17 April 1987 (which it repeats verbatim in the application).
10. 2. Following objections made by the 7. The Commission and the French Commission to the third and fourth points of Republic, the intervener, consider that this the application, that is to say the claims that application is also inadmissible. The the French Republic be required to abolish Commission's response was therefore the quotas and to indemnify the applicant, it merely to raise an objection of inadmissi was made clear that these were not inde bility under Article 91 of the Rules of pendent claims but were to be regarded as Procedure. linked to the first heads of claim and examined in the same way.
B — Analysis
11. We do not therefore need to dwell on My views on the question of the admissi the Commission's view that such bility of this application, which is the only applications are not admissible because they matter to be considered today, are as are not provided for in the system of legal follows: protection established by the Treaty, which
OPINION OF MR LENZ —CASE 247/87
is undoubtedly true. Rather, the question is only purpose which actions for failure to act whether natural and legal persons may bring may have is to obtain the adoption of proceedings under Article 175 of the EEC administrative acts favourable to the Treaty with the aim of causing the applicant, not of certain specific acts Commission to commence proceedings detrimental to a third party, in which an under Article 169 of the Treaty for breach interest might obviously exist. of obligations.
14. (b) However, I see considerable 12. 3. That proposition raises serious objections in two other respects. doubts.
(a) In saying that I am not thinking so 15. Under the system of judicial protection much of arguments that might be obvious instituted by the Treaty private individuals having regard to the wording of Article 175 clearly have no general right of action but of the Treaty ('address to that person any only a limited right depending on their indi act') on which great stress was laid by the vidual interests. As regards actions for Commission which observed that the annulment, Article 173 expresses this procedure under Article 169 concerns only principle by the requirement of direct and acts to be addressed to the Member State individual concern. The criterion 'address to concerned (and not therefore acts which by that person any act' in Article 175 should be their nature and purpose are addressed to a understood in that sense, that is to say it private applicant) and does not concern may only involve acts in which the applicant binding acts in the nature of decisions has a particular interest but in no case acts (which Mr Advocate General Gand, in his with a general scope. (As Daig states on p. Opinion in Case 48/65, regarded as 239 of his book Nichtigkeits- und essential for the purposes of Article 175). 1 Untätigkeitsklagen im Recht der europäischen Gemeinschaften, it is not sufficient that an applicant is collectively concerned together with other persons belonging to a group identified by general characteristics. The measures concerned must be measures 13. In reply it might, however, be pointed which relate specifically to the person or to out that under Article 169 (which is the key the position of the applicant). provision) the Commission may certainly take actions which produce legal effects, since the procedure often ends in an action being brought before the Court in order to obtain a binding ruling. It might also be pointed out that militating against a narrow interpretation relying heavily on the 16. In the final analysis, Article 169 wording ('address to that person any act') is proceedings, which is what the applicant the fact that, according to that view, the envisages when seeking a declaration that France has acted in breach of Article 30 et seq. of the EEC Treaty and the Lomé 1 — Judgment of 1 March 1966 in Case 48/65 Alfons Lütticke GmbH and Others v Commission [1966] ECR 19. Convention, undoubtedly involve (if we
STAR FRUIT v COMMISSION
bear in mind the consequences which the vidual to require the Commission to French Republic would have to draw instigate proceedings for failure to fulfil following the judgment sought by the obligations and, in the event of its refusal, applicant) an act of general scope, namely a to bring the matter before the Court. An modification of the current import system important condition laid down in Article which restricts intra-Community trade. As 175 of the EEC Treaty — failure to reach a Mr Advocate General Römer pointed out in decision in breach of the Treaty — is not his Opinion in Case 103/63, 2private indi met precisely because the Commission is not viduals can hardly be allowed to pursue obliged to instigate such a procedure but such a goal. has a discretion in this regard. Furthermore, if the Commission did not see any reason 17. Perhaps still more compelling points are for commencing proceedings, the disputed that, under the system instituted by the conduct of the Member State would in a Treaty as discernible from Articles 169 and way directly become the subject-matter of 170, only the Commission and the Member judicial scrutiny (in an action brought so as States have the power to bring the matter of to compel the Commission to bring a breach of the Treaty by a Member State proceedings in which action the question before the Court, that discretionary power whether there was sufficient evidence of a plays an important part in this regard (as breach of the Treaty would at least be Mr Advocate General Gand emphasized in considered). That means that the Member his Opinion in Case 48/65) and that it is State concerned would not have the oppor also necessary to observe a pre-litigation tunity provided for in Article 169 to submit procedure which allows the Member State its views beforehand and to remedy the to bring its law and practice into conformity alleged breach of obligations. In his Opinion with the Treaty without the institution of in Case 48/85 Mr Advocate General Gand legal proceedings. made the same point and, as Daig points 18. It would scarcely be compatible with out at p. 240 op. cit., this is the predominant those requirements to allow a private indi view.
C — Conclusion
19. 4. In the light of the foregoing considerations, it can only be concluded that the Star Fruit Company's application must be dismissed with an order for it to pay the costs, except for those of the intervener, which have not been asked for.
2 — Judgment of 2 July 1964 in Case 103/63 Rhenama, Schiff. fahrts- und SpeditionsgesellschaftmbH and Others v Commission [1964] ECR 425, atp.433.433