1.

There is no need for me to re-read the main conclusion in the application. It is concerned with the decision of the Commission of 16 June 1971 in which it informed the applicant that there was no occasion to supplement the list of products in Regulation No 1014/71. In considering whether its annulment may be demanded we must, since the application was submitted by a private undertaking, first of all consider, whether the decision in question is actionable at all under Article 173 of the EEC Treaty. This is open to doubt: it was not in fact signed, as required by Article 12 of the Commission's Rules of Procedure, either by the President or by any other member of the Commission but only by the Deputy Director-General. The Court will be aware that, in such circumstances, the precedents which it has established in regard to the ECSC rule out the possibility that the decision is actionable (see for example Joined Cases 35/62 and 16/63 [1963] ECR 197 at p. 204). Nevertheless, during the oral procedure, the representative of the Commission assured the Court that the Deputy Director-General referred to acted on the instructions of the Commission and that the formula used in the telex ‘the Commission is well aware’ must imply that it was the Commission's opinion which was communicated to the applicant. Again, the impression can be gained from study of the case-law that the principles, referred to above, developed in relation to legislation dealing with the ECSC do not automatically apply in the case of the EEC. This conclusion is based on the judgment of the Court in Case 48/65 [1966] ECR 19 at p. 27, in which it was called upon to review a letter sent by a department of the Commission and signed by a Director-General in his own name; the application was held to be inadmissible, though without any reference to this circumstance. I am therefore in agreement with the argument developed by my former colleague, Mr Advocate-General Gand, in that case and reported in [1966] ECR 19 at p. 31. In the present case, too, the fact that the decision in question was drawn up by a department óf the Directorate-General for Agriculture and that it was signed in his own name by a Deputy Director-General cannot be regarded as decisive. On the contrary the decisive factor is that it is clear from the wording of the letter that ‘its signatory is expressing the point of view of the Commission’. The decisive issue of admissibility must, therefore, be put in different terms. In the case of the rejection of a request, as in the present case, attention should not be concentrated mainly on the fact that the individual who made the request personally received a negative reply but, if the limitations on the right to seek redress contained in Article 173 of the EEC Treaty are not to be ignored, it must be recognized that a decision rejecting the request may be impugned only if the positive measure which the request sought to obtain, but which has been refused. was actionable. This is the argument urged convincingly by the Commission. In my view, the conclusion can be drawn from the indications given in the judgment delivered in Case 15/70 [1970] ECR 975 at pp. 979 and 980 that this contention is consonant with the basic concepts of the Court. To apply this test to the present case, it is at once apparent that the conclusion in the application which is based on the request of 26 May 1971 and which vests it with a certain formal validity seeks to supplement two regulations. This invites the conclusion that the rejection of the request does not constitute an individual act but amounts to confirmation of regulations which, according to the applicant, should be supplemented. This view is confirmed on a closer study of the legal nature of the system of rules involved. As I said at the beginning, these rules are, owing to the floating of the Deutschmark rate of exchange, concerned with fixing compensatory amounts to be applied to both imports and exports in external trade in certain products. There can be no doubt that these rules possess the attributes which under the case-law of this Court, they must have if, they are to constitute regulations within the meaning of the EEC Treaty. The system of rules is of a legislative nature, is applicable not to a limited number of persons, defined or identifiable, but to categories of persons viewed abstractly, it applies to objectively determined situations and involves legal consequences for categories of persons viewed in a general and abstract manner (as was held in, for example, the judgment delivered in Cases 16 and 17/62 [1962] ECR 471 at pp. 478 and 479. As the Commission emphasized, the essential factor is that the category of persons affected by the rules is not identifiable and is not determined by reference to the time at which the measure was adopted; when the rules are adopted, no one can identify the producers and traders which they cover and, depending on the scheme of the rules (which recalls the dicta in the judgment of the Court in Case 38/64 [1965] ECR 203 at p. 208), this applies not only to exports but also to imports of the products concerned. Furthermore, the fact that the applicant was concerned with only two specific products and that the group of undertakings producing these goods in the Federal Republic of Germany is small, has no relevance. On this point, too, the caselaw of the Court has for some time past made the position clear along lines which, in fact, contradict the applicant's argument. On this I need only refer to the judgment of the Court in Case 6/68 [1968] ECR 409 at pp. 414 and 415, and to what it held perhaps even more clearly in Case 1/64 [1964] ECR 413 at pp. 416 and 417. Finally it also appears impossible to distinguish the disputed measure and to class it differently according as it involves rules intended to be applied in the past (it is a declaration to this effect which the applicant is endeavouring to obtain and it is certainly impossible to deny that such rules affect specific persons) involves a measure to take effect in the future. In my opinion in Case 63/69 [1970] ECR 205 at p. 217 I said that for legal purposes such a distinction would be artificial and therefore invalid, and the Court clearly adopted my view (at pp. 211 and 212). In common with the Commission I have, accordingly, reached the conclusion that the application for annulment submitted by the applicant is inadmissible on account of the legal nature of the contested measure. There is, consequently, no need to go into the other questions which regularly arise under Article 173 and, in particular, to ascertain whether the applicant is directly and individually concerned. To the extent that the first conclusion refers to the determination of certain legal consequences it must be remembered that, in the case of an application for annulment the Treaty provides only for the annulment of a contested act (Article 174). After the annulment the defendant institution shall, in accordance with Article 176, take the necessary measures, and in so doing it enjoys some discretion. But the Court may not, in giving judgment, indicate what form these measures should take. In any event, this part of the application must also be declared inadmissible.