Judgment of the Court of 10 February 1982. - Rudolf Flender KG and others v Commission of the European Communities. - ECSC - Action for a declaration of nullity brought by undertakings not subject to the Treaty. - Case 74/81.



European Court reports 1982 Page 00395



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

APPLICATION FOR DECLARATION OF NULLITY - ACTION HAVING LOST ITS PURPOSE - NO NEED TO GIVE A DECISION

( ECSC TREATY , ART . 33 , SECOND PARAGRAPH )

Summary

A DECLARATION THAT THERE IS NO NEED TO GIVE A DECISION MUST BE MADE IN RESPECT OF AN ACTION CONCERNING A DECISION WHICH HAS NOT HAD , AND CAN NO LONGER HAVE , ANY ADVERSE EFFECTS ON THE APPLICANTS AND WHICH HAS THEREFORE LOST ITS PURPOSE .

Parties

IN CASE 74/81

RUDOLF FLENDER KG , SIEGEN , FEDERAL REPUBLIC OF GERMANY ,

BERGROHR GMBH , SIEGEN ,

EISEN- UND METALLWERKE FERNDORF GEBR . BENDER GMBH , FERNDORF , FEDERAL REPUBLIC OF GERMANY ,

EISENBAU KRAMER MBH , HILCHENBACH , FEDERAL REPUBLIC OF GERMANY ,

REPRESENTED BY H . HELLMANN AND A . VON WINTERFELD , RECHTSANWALTE , COLOGNE , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J . C . WOLTER , 2 RUE GOETHE ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY GOTZ ZUR HAUSEN , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE AT THE OFFICE OF O . MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR A DECLARATION THAT COMMISSION DECISION 385/81/ECSC OF 13 FEBRUARY 1981 CONCERNING CERTAIN OBLIGATIONS TO BE FULFILLED BY COMMUNITY PRODUCERS OF STEEL TUBE ( OFFICIAL JOURNAL 1981 , L 42 , P . 17 ) IS VOID OR , IN THE ALTERNATIVE , THAT IT IS VOID AS REGARDS THE APPLICANTS ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 7 APRIL 1981 , FOUR UNDERTAKINGS , PRODUCERS OF STEEL TUBE , INSTITUTED PROCEEDINGS UNDER THE SECOND PARAGRAPH OF ARTICLE 33 OF THE ECSC TREATY TO HAVE COMMISSION DECISION 385/81/ECSC OF 13 FEBRUARY 1981 CONCERNING CERTAIN OBLIGATIONS TO BE FULFILLED BY COMMUNITY PRODUCERS OF STEEL TUBE ( OFFICIAL JOURNAL 1981 , L 42 , P . 17 ) DECLARED VOID .

2 THE CONTESTED DECISION WAS ADOPTED WITHIN THE FRAMEWORK OF A SYSTEM INSTITUTED BY COMMISSION DECISION 2794/80/ECSC OF 31 OCTOBER 1980 ESTABLISHING A SYSTEM OF STEEL PRODUCTION QUOTAS FOR UNDERTAKINGS IN THE IRON AND STEEL INDUSTRY ( OFFICIAL JOURNAL 1980 , L 291 , P . 1 ). UNDER THAT SYSTEM , MATERIAL FOR TUBE IS EXEMPTED FROM QUOTAS PROVIDED THAT IT IS ACTUALLY USED WITHIN THE COMMON MARKET FOR THE PRODUCTION OF TUBES . IN ADDITION , FOR SOME OF THAT MATERIAL , A SPECIAL SUPERVISORY REGIME WAS ESTABLISHED .

3 IN THE RECITALS IN THE PREAMBLE TO THE CONTESTED DECISION , THE COMMISSION STATES THAT THE EXEMPTION AND THE SPECIAL REGIME REQUIRE THE COMMISSION TO BE INFORMED OF , AND ENABLED TO CHECK , THE ACTUAL USE TO WHICH THE MATERIAL IN QUESTION IS PUT AND THAT SUCH A CHECK CAN BE CARRIED OUT ONLY AMONG TUBE PRODUCERS WHICH , IN THIS CAPACITY , ARE NOT UNDERTAKINGS WITHIN THE MEANING OF ARTICLE 80 OF THE TREATY . FOR THOSE REASONS , THE COMMISSION RESORTED TO ARTICLE 95 OF THE ECSC TREATY SO AS TO EXTEND , BY MEANS OF THE CONTESTED DECISION , THE APPLICATION OF THE PROVISIONS OF ARTICLE 47 OF THE TREATY TO TUBE PRODUCERS .

4 ARTICLE 1 OF THE CONTESTED DECISION REQUIRED TUBE PRODUCERS TO FURNISH TO THE COMMISSION , ON A MONTHLY BASIS , INFORMATION ABOUT THE PRODUCTION OF TUBE AND THE ORIGIN OF THE MATERIAL FOR SUCH TUBE . ARTICLE 2 PROVIDES THAT THE COMMISSION , ' ' IN THE EXERCISE OF THE POWERS CONFERRED ON IT BY ARTICLE 47 OF THE TREATY ' ' , IS TO VERIFY THE ACCURACY OF THE INFORMATION PROVIDED BY TUBE PRODUCERS , AND STATES THAT , IN THE EVENT OF NON-COMPLIANCE , THE FINES AND PENALTY PAYMENTS PROVIDED FOR IN ARTICLE 47 OF THE TREATY ARE TO APPLY .

5 BY VIRTUE OF ARTICLE 3 THE DECISION WAS TO CEASE TO APPLY AT THE SAME TIME AS THE SYSTEM OF PRODUCTION QUOTAS AND NOT LATER THAN 30 JUNE 1981 . WHILST THE SYSTEM OF PRODUCTION QUOTAS , WHICH UNDER DECISION 2794/80/ECSC WAS TO CEASE TO APPLY AS FROM THE AFOREMENTIONED DATE , WAS EXTENDED SUBJECT TO ESSENTIALLY THE SAME EXCEPTIONS , THE CONTESTED DECISION WAS NOT RENEWED OR REPLACED BY OTHER VERIFICATION MEASURES IMPOSED UPON TUBE PRODUCERS .

6 IT IS CLEAR FROM THE DOCUMENTS IN THE CASE THAT , DURING THE PERIOD OF VALIDITY OF THE CONTESTED DECISION , THE APPLICANTS DID NOT FURNISH ANY INFORMATION AND THAT THE COMMISSION CONFINED ITSELF TO SENDING THEM A LETTER OF REMINDER . THE COMMISSION DID NOT CARRY OUT ANY VERIFICATION OR CHECKS IN THE CASE OF THE APPLICANTS . NOR DID IT IMPOSE ANY FINE OR PERIODIC PENALTY PAYMENT UPON THEM .

7 IN THE WRITTEN PROCEDURE , THE APPLICANTS CLAIMED THAT THE DECISION SHOULD BE DECLARED VOID , SUBMITTING THAT THERE HAD BEEN A MISUSE OF POWERS AFFECTING THEM , THAT THE COMMISSION HAD NO COMPETENCE IN REGARD TO THEM AND THAT THE DECISION WAS INCOMPATIBLE WITH THE TREATY . THE COMMISSION CONTENDED THAT THE APPLICATION SHOULD BE DISMISSED AS INADMISSIBLE ON THE GROUND THAT THE APPLICANTS , WHICH ARE NOT UNDERTAKINGS WITHIN THE MEANING OF THE TREATY , MAY ONLY CONTEST INDIVIDUAL DECISIONS AND IN ANY EVENT HAVE NOT MADE OUT A PRIMA FACIE CASE THAT THE GENERAL DECISION , WHICH THEY CLAIM SHOULD BE DECLARED VOID , CONSTITUTED A MISUSE OF POWERS AFFECTING THEM WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 33 OF THE TREATY .

8 IN THE COURSE OF THE ORAL PROCEDURE , THE COMMISSION EMPHASIZED THAT , IN ITS OPINION , THE WORDING OF THE DECISION DID NOT PERMIT THE MERE FAILURE TO FURNISH THE INFORMATION REQUIRED BY ARTICLE 1 OF THE DECISION TO BE PUNISHED BY THE IMPOSITION OF THE FINES AND PENALTY PAYMENTS PROVIDED FOR IN ARTICLE 47 OF THE ECSC TREATY . SINCE THE REFERENCE TO ARTICLE 47 OF THE ECSC TREATY APPEARS ONLY IN ARTICLE 2 OF THE DECISION , ONLY NON-COMPLIANCE WITH THE DUTY , IMPOSED BY THAT ARTICLE , TO ALLOW VERIFICATION WORK TO BE CARRIED OUT IN SITU , IS CAPABLE OF ATTRACTING A PENALTY . THE COMMISSION , MOREOVER , ACKNOWLEDGED THAT IT NO LONGER HAS THE POWER TO UNDERTAKE VERIFICATION WORK IN SITU UNDER THE DECISION . AS A RESULT , IT STATED THAT IT WOULD NO LONGER TAKE ACTION AGAINST THE APPLICANTS ON THE BASIS OF THE DECISION . THE APPLICANTS HAVE NOT RAISED ANY OBJECTION TO THAT STANDPOINT .

9 IT MUST THEREFORE BE CONCLUDED THAT THE ACTION CONCERNS A DECISION WHICH HAS NOT HAD , AND CAN NO LONGER HAVE , ANY ADVERSE EFFECTS ON THE APPLICANTS AND THAT ACCORDINGLY IT HAS CEASED TO HAVE ANY PURPOSE .

Decision on costs

COSTS

10 UNDER THE TERMS OF ARTICLE 69 ( 5 ) OF THE RULES OF PROCEDURE , WHERE A CASE DOES NOT PROCEED TO JUDGMENT THE COSTS ARE TO BE IN THE DISCRETION OF THE COURT . IN THE CIRCUMSTANCES OF THIS CASE THE PARTIES MUST BEAR THEIR OWN COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DECLARES THAT THERE IS NO NEED TO GIVE A DECISION ON THE APPLICATION ;

2.ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .