4.

The decisive provision is that of Article 69 (5) of the Rules of Procedure which leaves to the discretion of the Court the decision as to costs (the French text reads: ‘La Cour règle librement les dépens’). That certainly means that the Court is not obliged, merely for the purpose of a proper decision on costs, to consider the questions raised in the case exactly and in detail. On the other hand it is possible to contemplate the decision on costs being taken having regard to the actual state of the case; that is what, for example, German law lays down in such case (cf. paragraph 161 (2) of the Verwaltungsgerichtsordnung). The Court should in this case, to a certain extent, undertake a summary examination of the chances of success of an application, that is to say, to estimate the probabilities of success of the two parties. That is how I am going to proceed. For this I will begin from the latest state of the conclusions because, to the extent that one must speak of a limitation or discontinuance, the costs must in any case be borne by the applicants, because the second sentence of Article 69 (3) cannot apply in this case. In respect of the first head of the conclusions, directed towards obtaining an answer from the Commission, that is to say, the information that an examination procedure has commenced, I consider that it is unimportant whether or not there is a right to obtain such an act, and whether this must be regarded as an ‘act’, in the sense of Article 175 and in consequence capable of being the subject of an application for failure to act. In tact every public administration should consider that it is ‘nobile officium’ for them to reply to serious representations made by those concerned, and which refer to an act coming within the competence of the administration. In the present case, if the administration had discharged this duty within a reasonable time and not after more than four months and after receiving the telegraphic reminder, the applicants would probably have refrained from including the first head of their conclusions. In consequence the Commission's unsatisfactory conduct has to this extent caused them to incur costs and may be taken into account in any event in the decision on costs. Nevertheless, in respect of the second head of the conclusions, a brief examination of the prospects of success does not appear favourable to the applicants. If one begins with the statement by the applicants at the hearing, they wished to make the Commission commence the procedure under Article 169 of the Treaty against the Federal Republic of Germany with a view in this way to obtaining a change in legislative provisions. In this respect it is necessary particularly to refer to two factors: the final objective and the measure which is the object of the application (commencement of the coercive procedure of Article 169). If one considers primarily the final objective it is necessary to state that private persons cannot seek to achieve aims of this kind by means of an application for annulment. It was in reliance on the fact that measures adopted by Community institutions must individually concern private undertakings that the Court of Justice has dismissed applications against decisions of the Commission which, in the last analysis, produced effects equivalent to a law, in the sense that they forbade the amendment of national legislation (by way of a suspension of customs duties). There are many arguments in favour of considering that it is necessary to impose requirements in relation to applications for failure to act, if a breach is not to be opened in the legal system of protection of the Treaty. That would thus exclude the application for failure to act which, in the final analysis, seeks to bring about an amendment of national legislation. But this short examination leads once more to another consideration which is detrimental to the applicants' case. I do not see for the moment how they were intending to fulfil the conditions described in Article 175 ‘… to address to that person any act’. That can only mean this: the essential aim of the application for failure to act must be to secure the adoption of an act which by its nature and its purpose must be addressed to the person making the request. When the applicants ask the Commission to commence the procedure under Article 169 against a Member State, the adoption of a purely internal measure is foremost required for this request to be satisfied, in this case a decision to take action against a Member State. Any later action taken to carry out and put into effect this decision necessarily involves, under the legal system of the Treaty, measures (the legal nature of which does not matter) which must be taken in respect of the Member State concerned: request to the latter to submit its observations on particular problems; opinion of the Commission, that is to say, an explanation of its point of view with regard to the Member State; action brought by the Commission against the Member State. The notification of acts of this type to those concerned is only an ancillary matter, a reflexion of the measure itself, without legal content of its own, that is to say, of acts derived from the measure itself. In consequence, and starting from the very essence of the measure which the applicants have requested, I am obliged to state that the act concerned in the present case is not one which must be taken in respect of the applicants. Thus, even according to the wording of Article 175 which one cannot ignore in one's interpretation without giving up an essential method of interpretation there is no right of action such as that conceived by the applicants. A decision as to costs in relation to the second head of the conclusions could not in view of the foregoing be given in favour of the applicants. Nevertheless, one further point remains: We know that this was the first case to give rise to an examination of Article 175, albeit in a very summary manner and with all necessary reservations. The discussions between the parties have shown us what delicate problems are involved in the interpretation of this provision. Taking into account the legal problems raised in this case, we should thus decide, as in Cases 2 and 3/60, to rely upon Article 69 (3) of the Rules of Procedure which allows each party to be ordered to bear its own costs fully or partially when there are exceptional reasons for this. As the Commission obviously has not incurred special costs it thus might appear equitable in the last analysis to order it to pay a part of the costs of the applicants (perhaps as much as half).