20.

There is no doubt that a measure which the applicants request should be adopted for the purpose of having the full import levies on ducks and geese re-established must, hypothetically, be adopted in the form of a regulation. That is the result of several factors. First, such re-establishment would presuppose an amendment to Regulation No 3899/89 and thus a measure of the same legal status. Secondly, there would be no point in addressing an individual decision to the applicants since the import levies are not payable by the applicants, but by the importers of ducks and geese. Thirdly, Article 5(1) of Regulation No 3899/99 expressly provides that if the levies are re-established it should be done by regulation. The applicants do not, moreover, appear to dispute the fact that in their action they are seeking to obtain the adoption of a regulation. The question is whether that finding per se must lead to a dismissal of the action for failure to act as inadmissible. It might be claimed that by definition the condition for bringing an action under the third paragraph of Article 175 could never be satisfied when the measure which the applicants claim should be adopted must necessarily be adopted in the form of a regulation. It is clear from the Court's case-law that the purpose of giving a private individual the opportunity of bringing an action for annulment not simply against decisions properly so-called, but also against measures which are issued in the form of regulations, is to prevent the Community institutions from being able, merely by choosing the form of a regulation, to exclude an application by an individual and thus to make clear that the choice of form may not alter the nature of a measure. ( 21 ) It can be deduced from that case-law that an individual cannot bring an action for annulment against ‘true’ regulations, but only against regulations which, because of their true legal nature constitute decisions. It could, therefore, be maintained that since the measure sought by the applicants cannot be issued as a decision the applicants' action for failure to act must be held inadmissible on that ground alone. It would not, however, be right to hold the applicants' action inadmissible on that basis. That is because, in its case-law, the Court has allowed actions for annulment against measures even though they had necessarily to be issued in the form of regulations. The Court has accepted that measures which, taken in their entirety, are in the nature of a regulation can contain provisions which constitute decisions of direct and individual concern to the applicants. ( 22 ) In the area of anti-dumping the Court has gone a step further by accepting that regulations which, as regards their nature and their scope, are of a legislative character, inasmuch as they apply to particular natural and legal persons can constitute decisions of direct and individual concern to them. An anti-dumping regulation as such may, in other words, be in the nature of a decision in relation to certain natural and legal persons, regardless of the fact that it is not disputed that an anti-dumping duty must be imposed by regulation. ( 23 ) In the light of that case-law I believe that it is rational to interpret the conditions for bringing an action under the third paragraph of Article 175 to the effect that the Court should examine the question whether the measure sought by the applicants is in fact a decision which, although it must be issued in the form of a regulation, is of direct and individual concern to the applicants.