Judgment of the Court of 26 October 1971. - C. Mackprang jr. v Commission of the European Communities. - Case 15-71.



European Court reports 1971 Page 00797

Danish special edition Page 00187

Greek special edition Page 00929

Portuguese special edition Page 00283

Spanish special edition Page 00175



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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APPLICATION ON THE GROUND OF A FAILURE TO ACT - NATURAL OR LEGAL PERSONS - COMPLAINT TO THE COURT - ACTS OF A GENERAL NATURE - INADMISSIBILITY OF APPLICATION

( EEC TREATY, ARTICLE 175 )

Summary

A GENERAL PROVISION TAKING THE FORM OF A DECISION ADDRESSED TO THE MEMBER STATES CANNOT BE DESCRIBED AS AN ACT WHICH COULD BE ADDRESSED TO A NATURAL OR LEGAL PERSON WITHIN THE MEANING OF ARTICLE 175 ( 3 ).

A NATURAL OR LEGAL PERSON CANNOT BRING AN ACTION ON THE GROUND OF A FAILURE TO ACT AGAINST A COMMUNITY INSTITUTION ON THE GROUND THAT IT HAS FAILED TO ADOPT SUCH A PROVISION .

Parties

IN CASE 15/71

C . MACKPRANG JR ., HAVING ITS REGISTERED OFFICE IN HAMBURG, REPRESENTED BY FRITZ MODEST AND WALTER ROELL, ADVOCATES AT THE HAMBURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF FELICIEN JANSEN, HUISSIER, 21 RUE ALDRINGEN, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, FRIEDRICH-WILHELM ALBRECHT, ACTING AS AGENT, ASSISTED BY DIETER OLDEKOP, MEMBER OF THE LEGAL SERVICE OF THE COMMISSION, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ITS LEGAL ADVISER EMILE REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION AT THE PRESENT STAGE OF THE PROCEEDINGS FOR A DECLARATION ON THE ADMISSIBILITY OF AN APPLICATION ON THE GROUND OF A FAILURE TO ACT WHEREBY THE APPLICANT UNDERTAKING COMPLAINS THAT THE COMMISSION, IN CONTRAVENTION OF ARTICLE 155 OF THE EEC TREATY, FAILED TO COMPLETE ITS DECISION OF 17 JULY 1962 ESTABLISHING SPECIAL METHODS OF ADMINISTRATIVE COOPERATION FOR THE APPLICATION OF INTRA-COMMUNITY AGRICULTURAL LEVIES BY A DECISION ENABLING THE MEMBER STATES TO IMPOSE THE INTRA-COMMUNITY LEVY ON GOODS WHICH WERE IMPORTED FROM ALGERIA IN 1963 EVEN IN THE ABSENCE OF A MOVEMENT CERTIFICATE ON FORM DD4,

Grounds

1 BY APPLICATION LODGED ON 26 MARCH 1971 UNDER ARTICLE 175 OF THE EEC TREATY, THE APPLICANT COMPLAINS THAT THE COMMISSION, IN BREACH OF ITS OBLIGATION UNDER ARTICLE 155, HAS FAILED TO ADDRESS TO THE MEMBER STATES A MEASURE WHICH, BY COMPLETING ITS DECISION OF 17 JULY 1962 ON METHODS OF ADMINISTRATIVE COOPERATION FOR THE APPLICATION OF INTRA-COMMUNITY AGRICULTURAL LEVIES ( OJ 1962, P . 2140 ), EMPOWERED OR ORDERED THEM TO IMPOSE THE INTRA-COMMUNITY LEVY ON GOODS FROM ALGERIA IMPORTED IN 1963 EVEN WHERE A MOVEMENT CERTIFICATE ON FORM DD4 WHICH IS PRESCRIBED BY THE ABOVEMENTIONED PROVISION IS NOT PRODUCED, IF IT IS ESTABLISHED BY MEANS OF SUFFICIENT OTHER EVIDENCE THAT THE GOODS ARE IN FACT OF ALGERIAN ORIGIN . AT THIS REQUEST OF THE COMMISSION TO APPLY ARTICLE 91 OF THE RULES OF PROCEDURE, THE COURT HAS DECIDED TO GIVE A RULING ON THE ADMISSIBILITY OF THIS APPLICATION WITHOUT GOING INTO THE SUBSTANCE OF THE CASE .

2 IT IS NOT CONTESTED THAT THE APPLICANT IMPORTED CERTAIN QUANTITIES OF WHEAT BRAN FROM ALGERIA INTO THE FEDERAL REPUBLIC OF GERMANY IN 1963, FOLLOWING AN INVITATION TO TENDER ISSUED BY THE EINFUHR - UND VORRATSSTELLE FUER GETREIDE UND FUTTERMITTEL, FRANKFURT AM MAIN, IN WHICH ALGERIA WAS MENTIONED AMONG THE COUNTRIES BELONGING TO THE EEC . BECAUSE OF THE REFUSAL OF THE ALGERIAN AUTHORITIES TO ISSUE THE MOVEMENT CERTIFICATES ON FORM DD4 REFERRED TO IN THE DECISION OF 17 JULY 1962, THE APPLICANT FIRM WAS UNABLE TO PRODUCE ANY DOCUMENT TO THE GERMAN CUSTOMS AUTHORITIES WHICH IN THEIR OPINION JUSTIFIED THE APPLICATION OF THE INTRA-COMMUNITY AGRICULTURAL LEVIES . CONSEQUENTLY, THE HIGHER LEVY FIXED WITH REGARD TO IMPORTS FROM THIRD COUNTRIES WAS IMPOSED ON THE IMPORTS IN QUESTION .

3 AFTER THE APPLICANT HAD FAILED TO OBTAIN SATISFACTION FROM THE NATIONAL AUTHORITIES, IT ASKED THE COMMISSION TO ENSURE, BY MEANS OF AN ORDER ADDRESSED TO THE FEDERAL REPUBLIC OF GERMANY OR AN APPROPRIATE AMENDMENT OF THE DECISION OF 17 JULY 1962, THE APPLICATION OF THE INTRA-COMMUNITY LEVY TO THE APPLICANT' S CASE BY ALLOWING EVIDENCE OTHER THAN PRODUCTION OF THE CERTIFICATE ON FORM DD4 . IN ITS REQUEST ADDRESSED TO THE COMMISSION UNDER ARTICLE 175 ( 2 ) AND IN ITS ORIGINATING APPLICATION, THE APPLICANT SPECIFIED THE SUBJECT OF THE DISPUTE TO THE EFFECT THAT IT REQUESTS THE COMMISSION FOR A DECISION SUPPLEMENTING THE DECISION OF 17 JULY 1962 AND DIRECTED TO THE SAME ADDRESSEES .

4 UNDER ARTICLE 175 ( 3 ), ANY NATURAL OR LEGAL PERSON MAY, UNDER THE CONDITIONS LAID DOWN IN PARAGRAPHS ( 1 ) AND ( 2 ) OF THAT ARTICLE, COMPLAIN TO THE COURT OF JUSTICE THAT THE COMMISSION, IN BREACH OF THE TREATY, " HAS FAILED TO ADDRESS TO THAT PERSON ANY ACT OTHER THAN A RECOMMENDATION OR AN OPINION ". THE SUMMARY GIVEN ABOVE SHOWS THAT THE APPLICATION LODGED BY THE APPLICANT REQUESTS THE COMMISSION TO ISSUE A GENERAL PROVISION WHICH WOULD HAVE THE SAME LEGAL SCOPE AS THE DECISION OF 17 JULY 1962 . SUCH A DECISION CANNOT, EITHER BECAUSE OF ITS FORM OR ITS LEGAL NATURE, BE DESCRIBED AS AN ACT WHICH COULD BE ADDRESSED TO THE APPLICANT WITHIN THE MEANING OF ARTICLE 175 ( 3 ).

5 MOREOVER, IN VIEW OF THE DISTRIBUTION OF POWERS BETWEEN THE COMMUNITY AND THE MEMBER STATES, AS RESULTS FROM THE AGRICULTURAL RULES IN FORCE AT THE TIME OF THE IMPORTS IN QUESTION, AN APPLICATION REQUESTING THAT THE FIELD OF APPLICATION OF THE DECISION OF 17 JULY 1962 BE DEFINED WITH REGARD TO IMPORTS WHICH WERE FROM A THIRD STATE, EVEN IF THEY SHOULD HAVE RECEIVED THE BENEFIT OF THE INTRA-COMMUNITY SYSTEM COULD ONLY BE LODGED WITH NATIONAL COURTS . THE COURT OF JUSTICE COULD ONLY GIVE A RULING WITHIN THE CONTEXT OF SUCH PROCEEDINGS IF ITS JURISDICTION WAS INVOKED UNDER ARTICLE 177 OF THE TREATY .

6 THE APPLICATION MUST THEREFORE BE DISMISSED AS INADMISSIBLE .

Decision on costs

7 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . THE APPLICATION HAS BEEN DECLARED INADMISSIBLE . THE APPLICANT MUST THEREFORE BE ORDERED TO BEAR THE COSTS OF THE PROCEEDINGS .

Operative part

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE;

2 . ORDERS THE APPLICANT TO BEAR THE COSTS OF THE ACTION .