5.

Let us now proceed to the other problem of a general nature which must be considered: the interpretation of Article 175 of the EEC Treaty. As the Court is aware, that article provides that ‘should the Council or the Commission, in infringement of this Treaty, fail to act, the Member States and the other institutions of the Community may bring an action before the Court of Justice to have the infringement established’. The last paragraph of that article extends that right to bring an action to any natural or legal person who wishes ‘to complain … that an institution of the Community has failed to address to that person any act other than a recommendation or an opinion’. It is a condition for the admissibility of such an action either by the States, the institutions or by private persons, that the institution concerned should first have been called upon to act, and have failed to define its position within two months thereof. Two points appear to me of particular importance for the outcome of this case: to establish whether the words ‘any act other than a recommendation or an opinion’ refer by implication only to the category of acts binding on the persons to whom they are addressed which are given in the first paragraph of Article 189 (decisions); and to clarify the meaning of ‘definition of the institution's position’ which may preclude the bringing of proceedings for failure to act. With regard to the first point I consider that the most reasonable and justifiable course, on both lexicographical and logical grounds, is to interpret the word ‘act’ widely. From the literal point of view it is significant that the Treaty prefers this word to the technical expression ‘decision’ which has a clear position in the system of sources of law. It is indeed reasonable to suppose that, if the Community legislature had wished to permit individuals to institute proceedings on grounds of failure to act in relation to decisions only it would have used the appropriate technical expression and not a word like ‘act’ bearing a number of meanings. From a logical point of view, then, it appears to me important to note that in the first paragraph of Article 175 the omission of the Council or of the Commission is described in words having a wide meaning (‘should the Council or the Commission, in infringement of this Treaty, fail to act . . .’). In its turn the request which, pursuant to the second paragraph, must be addressed to the institution in question is described as a request ‘to act’, not ‘to decide’. I am therefore of the view that it is possible to bring proceedings in the form of an application for failure to act against an omission to adopt measures which cannot be identified with the formal structure of a decision, in particular the measures which I have previously mentioned with reference to the procedure under Regulation No 17, inter alia the information to be given under Article 6 of Regulation No 99/63 of the Commission. Logically, that view also affects the reply to be given to the second question in view of the even more general nature of the words ‘definition of position’. If the measure envisaged in the third paragraph of Article 175 required in all cases to be a decision the same argument could be put forward concerning the nature of the ‘definition of position’ mentioned a the second paragraph; however, a wide interpretation of the word ‘act’ indicates a fortiori that a wide interpretation must also be given to the words ‘definition of position’. In fact I consider that the institution in question can also define its position (and thereby rebut the charge of failure to act) by an act which is not in the nature of a decision and therefore by an act which does not terminate the procedure. With regard to this case the conclusion which must be drawn is that the classification of the letter of the Commission of 22 March 1979 is ultimately irrelevant. Whether that letter is considered as information pure and simple or even if it is viewed as an implied decision to shelve the matter (as I have already indicated is my view) the Commission has nevertheless ‘defined its position’ for the purposes of Article 175 and accordingly cannot be charged with having failed to act. The decisions of the Court of Justice confirm the interpretation which I have placed upon the words ‘definition of position’. The judgment of 13 July 1971 in Case 8/71, Komponistenverband v Commission, [1971] ECR 705 in fact established that a letter whereby the Commission wrote to an undertaking against which proceedings under Regulation No 17 had been initiated giving it the opportunity of submitting its observations within a certain period pursuant to Article 5 of Regulation No 99/63 constituted ‘defining its position’ for the purposes of the second paragraph of Article 175; accordingly the Commission had not ‘refrained from acting when called upon by the applicant to do so’ and consequently since ‘the conditions laid down by Article 175’ were ‘lacking’ the application must ‘be dismissed as inadmissible’. There is a further aspect of Article 175 which appears to me to call for comment. We have seen that the purpose of empowering private persons to institute proceedings for failure to act is to make it possible to complain that one of the institutions has failed to address to the applicant an act other than a recommendation or an opinion. In my view this means that the failure must arise in relation to an act which should have been addressed to the applicant. On this view there is a clear difference between the third paragraph of Article 175 and the second paragraph of Article 173 concerning applications for annulment. The latter provision in fact provides that ‘any natural or legal person may … institute proceedings against a decision addressed to that person’ but immediately afterwards provision is also made for that person to institute proceedings ‘against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former’. The fact that this latter phrase from the second paragraph of Article 173 was not repeated in Article 175 makes it possible to state that the right to institute proceedings for failure to act was conferred on natural or legal persons in a narrower range of cases than for proceedings for annulment; in particular power was withheld from such persons to institute proceedings for failure to act against acts which, whilst of direct and individual concern to them, are not addressed to them. The difference in scope between the rights to bring actions under the second paragraph of Article 173 and under Article 175 has a comprehensible logic and does not display contradictory aspects. The purpose of the application for failure to act is to obtain a finding from the Court of Justice that the Council or the Commission has failed to act and to oblige the latter, through the authoritative intervention of the Court, to define its position. The application for annulment on the other hand is intended to obtain a judgment affecting an existing act and annulling it. It is accordingly reasonable that the only persons who can bring proceedings for failure to act are the persons to whom the act should have been addressed: these persons have an interest that the Commission should not remain inactive and that interest is sufficiently strong and worthy of protection only in so far as the interested party is also the person to whom the contested act should have been addressed. it is not reasonable to extend that instrument — which in substance is intended to avoid the clogging of the machinery of justice — to persons who are affected by an act which is nevertheless not addressed to them. If a decision is adopted such persons may institute proceedings against it under the last part of the second paragraph of Article 173: it is in fact appropriate that, in this latter case, where the institution takes positive steps, the applicant should be permitted to challenge them and thereby obtain a review by the Court of the choices made by the Commission. It is impossible to arrive at different conclusions by referring to the application for failure to act envisaged by Article 35 of the ECSC Treaty. That procedure is in fact different from the application referred to in Article 175 since it is conceived of as a subsidiary aspect of the application for annulment. There are solid grounds for the view that a number of the doubts which arise in the interpretation of Article 175 stem from carrying over into this sphere concepts developed with regard to Article 35 of the ECSC Treaty.