Judgment of the Court (Fifth Chamber) of 6 May 1986. - Nuovo Campsider v Commission of the European Communities. - Action for failure to act pursuant to Article 35 of the ECSC Treaty - Failure to take measures to ensure the maintenance of supplies of ferrous scrap for electric furnace steelmakers. - Case 25/85.



European Court reports 1986 Page 01531



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

ACTION FOR FAILURE TO ACT - FORMAL NOTICE CALLING UPON THE INSTITUTION TO ACT - CONDITIONS - CLEAR AND EXPRESS REQUEST .

( ECSC TREATY , ART . 35 )

Summary

ACCORDING TO THE SCHEME OF ARTICLE 35 OF THE ECSC TREATY AN ACTION FOR FAILURE TO ACT MUST BE PRECEDED BY FORMAL NOTICE CALLING UPON THE COMMISSION TO ACT , AND THE SUBJECT-MATTER OF THAT NOTICE MUST BE SET OUT IN SUCH A MANNER AS TO MAKE CLEAR WHAT DECISION THE COMMISSION SHOULD HAVE TAKEN UNDER COMMUNITY LAW . THOSE REQUIREMENTS ARE NOT MET WHERE THE COMMISSION IS INFORMED BY TELEX OF DIFFICULTIES IN OBTAINING SUPPLIES IN A PARTICULAR SECTOR AND IS ASKED ' TO TAKE INTO SERIOUS CONSIDERATION THE VERY URGENT NEED TO ADOPT MEASURES TO STABILIZE THE MARKET ' IN QUESTION , SINCE SUCH A COMMUNICATION DOES NOT ENABLE THE COMMISSION TO DETERMINE WHAT MEASURES IT IS ACTUALLY BEING ASKED TO TAKE .

Parties

NUOVO CAMPSIDER , AN ASSOCIATION OF UNDERTAKINGS WITHIN THE MEANING OF ARTICLE 48 OF THE ECSC TREATY COMPOSED OF ITALIAN ELECTRIC FURNACE STEELMAKERS USING FERROUS SCRAP AS A RAW MATERIAL , WHOSE HEAD OFFICE IS AT 8 PIAZZA VELASCA , 20122 MILAN ( ITALY ), REPRESENTED BY M . WAELBROECK AND A . VANDENCASTEELE , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT , 34 RUE PHILIPPE-II ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISERS , R . WAGENBAUR AND M.-J . JONCZY , ACTING AS AGENTS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION PURSUANT TO ARTICLE 35 OF THE ECSC TREATY FOR A DECLARATION THAT BY FAILING TO GIVE EFFECT TO THE APPLICANT ' S FORMAL REQUEST MADE ON 16 NOVEMBER 1984 THE COMMISSION FAILED TO FULFIL ITS OBLIGATIONS UNDER THE ECSC TREATY AND WAS GUILTY OF A MISUSE OF POWERS ,

Subject of the case

THE COURT ( FIFTH CHAMBER )

Grounds

2 BY A TELEX MESSAGE OF 16 NOVEMBER 1984 THE APPLICANT INFORMED THE COMMISSION OF THE DIFFICULTIES ENCOUNTERED BY ITS MEMBERS IN OBTAINING SUPPLIES OF SCRAP AND ASKED IT ' TO TAKE INTO SERIOUS CONSIDERATION THE VERY URGENT NEED TO ADOPT MEASURES TO STABILIZE THE MARKET FOR SCRAP ' .

3 SINCE THE COMMISSION TOOK NO ACTION IN RESPONSE TO THAT TELEX , THE APPLICANT BROUGHT THIS ACTION ON 29 JANUARY 1985 AND AT THE SAME TIME APPLIED TO THE COURT FOR THE ADOPTION OF INTERIM MEASURES ; THAT APPLICATION WAS DISMISSED BY AN ORDER OF THE PRESIDENT OF THE COURT OF 6 MARCH 1985 .

4 THE COMMISSION DISPUTES BOTH THE ADMISSIBILITY AND THE FOUNDATION OF THE ACTION . ALTHOUGH NO OBJECTION OF INADMISSIBILITY WAS RAISED , THE COURT DECIDED TO HEAR ARGUMENT ONLY ON THE ISSUE OF ADMISSIBILITY .

5 THE COMMISSION ARGUES THAT THE APPLICATION IS INADMISSIBLE SINCE NO VALID REQUEST WAS MADE CALLING UPON IT TO ACT AND AN ASSOCIATION OF UNDERTAKINGS CANNOT REQUIRE THE IMPOSITION ON ALL MEMBER STATES OF STRICT MEASURES THAT ARE BINDING ON THEM FOR THE SOLE REASON THAT THE INDUSTRIAL SECTOR WHICH IT REPRESENTS IS ENCOUNTERING DIFFICULTIES IN OBTAINING SUPPLIES .

6 ACCORDING TO THE COMMISSION , THE REQUEST WAS INVALID FOR THREE REASONS : IT WAS NOT POSSIBLE , ON THE BASIS OF THE TELEX OF 16 NOVEMBER 1984 , TO ASCERTAIN WITH SUFFICIENT ACCURACY THE CONTENT OF THE DECISION WHICH THE COMMISSION WAS BEING ASKED TO ADOPT ; THE TELEX DID NOT STATE THAT PROCEEDINGS MIGHT BE BROUGHT AGAINST THE COMMISSION FOR FAILURE TO ACT AND THEREFORE DID NOT CONTAIN A THREAT OF FURTHER ACTION ; FINALLY , IT DID NOT STATE THAT IT CONSTITUTED THE STARTING POINT OF THE TWO MONTH PERIOD ON THE EXPIRY OF WHICH THE COMMISSION ' S SILENCE IS REGARDED AS AN IMPLIED DECISION OF REFUSAL .

7 IN REPLY TO THOSE ARGUMENTS , THE APPLICANT ASSOCIATION ARGUES FIRST OF ALL THAT THE TELEX REFERRED TO A SHORTAGE OF SUPPLIES AND IT WAS THUS POSSIBLE TO DETERMINE THE CONTENT OF THE MEASURES REQUESTED , SINCE SUCH A SITUATION IS ENVISAGED BY ARTICLE 59 OF THE ECSC TREATY AND THAT PROVISION REFERS TO ARTICLE 57 OF THE ECSC TREATY WHICH PROVIDES FOR INTERVENTION IN REGARD TO PRICES AND COMMERCIAL POLICY . IT GOES ON TO ARGUE THAT IT IS SUFFICIENT THAT THERE SHOULD BE A CLEAR AND FIRM REQUEST FOR ACTION OF A SPECIFIC KIND , AS THERE WAS IN THIS CASE . FINALLY , IT EMPHASIZES THAT THE ACTION TO BE TAKEN WAS SO URGENT THAT ANY REFERENCE TO THE TWO-MONTH PERIOD REFERRED TO IN ARTICLE 35 OF THE ECSC TREATY WOULD HAVE BEEN DEVOID OF PURPOSE .

8 IT MUST BE EMPHASIZED THAT ACCORDING TO THE SCHEME OF ARTICLE 35 OF THE ECSC TREATY AN ACTION FOR FAILURE TO ACT MUST BE PRECEDED BY FORMAL NOTICE CALLING UPON THE COMMISSION TO ACT AND THAT THE SUBJECT-MATTER OF THAT NOTICE MUST BE SET OUT IN SUCH A MANNER AS TO MAKE CLEAR WHAT DECISION THE COMMISSION SHOULD HAVE TAKEN UNDER COMMUNITY LAW . IN THIS CASE THE TELEX MESSAGE OF 16 NOVEMBER 1984 DID NOT INDICATE THAT IT CONSTITUTED A PRELIMINARY TO LEGAL PROCEEDINGS AND IT DID NOT ENABLE THE COMMISSION TO DETERMINE WHAT MEASURES IT WAS ACTUALLY BEING ASKED TO TAKE . THE REQUEST MADE IN THE TELEX CANNOT THEREFORE BE REGARDED AS FORMAL NOTICE GIVEN TO THE COMMISSION IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 35 OF THE TREATY .

9 THE ACTION MUST THEREFORE BE DECLARED INADMISSIBLE , AND THERE IS NO NEED TO EXAMINE THE OTHER ARGUMENTS PUT FORWARD BY THE COMMISSION WITH REGARD TO ITS ADMISSIBILITY .

COSTS

Decision on costs

10 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE APPLICANT HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

Operative part

THE COURT ( FIFTH CHAMBER )

HEREBY :

( 1 ) DECLARES THE APPLICATION INADMISSIBLE .

( 2 ) ORDERS THE APPLICANT TO PAY THE COSTS .

EVERLING JOLIET DUE GALMOT KAKOURIS DELIVERED IN OPEN COURT IN LUXEMBOURG ON 6 MAY 1986 .