3.

The applicants, whilst noting the lack of any provision similar to that of the repealed Article 16 of the EAEC Protocol, maintain that a direct action may be brought by an individual against a Member State for infringement of the single Protocol on Privileges and Immunities now in force by virtue of Article 30 of the Brussels Treaty of 1965 on the merger of the Community institutions. That provision states: “The provisions of the Treaties establishing the European Economic Community and the European Atomic Energy Community relating to the jurisdiction of the Court of Justice and to the exercise of that jurisdiction shall be applicable to the provisions of this Treaty and of the Protocol annexed thereto, with the exception of those which represent amendments to Articles of the Treaty establishing the European Coal and Steel Community, in respect of which the provisions of the Treaty establishing the European Coal and Steel Community shall remain applicable.” The applicants appear to think that, since the provisions of the EEC Treaty relating to the jurisdiction of the Court are applicable to the Protocol on the Privileges and Immunities, they may deduce from Article 164 of that Treaty the principle that the Court has “general jurisdiction” and rely upon it to exercise a right of action against the Member State which they charge with infringement of the Protocol. That view is without foundation. It is clear that the first part of Article 30 is intended solely to extend to the Merger Treaty and to the Protocol annexed thereto the provisions governing the jurisdiction of the Court contained in the EEC and EAEC Treaties. In other words, the rules governing the jurisdiction of the Court laid down in those provisions apply also — in their entirety and without amendment — to disputes concerning the interpretation and application of the Brussels Treaty of 1965 and of the Protocol on the Privileges and immunities of the European Communities. However, those provisions do not state that an individual may bring a Member State before the Court for infringement of a Community provision. Therefore, the applicants were obliged to rely (in particular in their oral submission) on Article 164 of the EEC Treaty, endeavouring to infer from that the existence of a principle that the Court has general jurisdiction. The attempt is a vain one, however. It is a well-known fact that Article 164 concerns the function attributed to the Court, which is to ensure observance of the law in the interpretation and application of the Treaty, whilst its jurisdiction is governed by Article 169 et seq., and there is no doubt that the exercise of the Court's function is confined within the limits laid down by the rules governing its jurisdiction. It is appropriate at this stage to clarify the scope of the exception contained in the second part of Article 30 of the Merger Treaty. It applies to the provisions of the Merger Treaty itself and to those of the Protocol annexed thereto which “represent amendments” to articles of the ECSC Treaty; the rules on jurisdiction in the ECSC Treaty remain applicable to such provisions. In order to understand that exception, it should be borne in mind that inter alia the Merger Treaty supplemented and replaced certain provisions of the ECSC Treaty (and of the Statute of the Court of Justice annexed thereto) : consider, for example, Article 8 (2) and (3), Article 21 and Articles 26 and 27. They were drafted as amendments to the ECSC Treaty and therefore became part of the text of that Treaty. That is why in disputes on the interpretation and application of those provisions of the Merger Treaty questions as to the Court's jurisdiction must be resolved by applying the rules on jurisdiction in the ECSC Treaty. None of the foregoing in any way affects the solution of the problem with which the Court is concerned. The removal of Article 16 of the Protocol on the Privileges and Immunities of the ECSC was not brought about by means of a specific provision in the new sole Protocol, nor did it represent an amendment to the ECSC Treaty; the latter merely provided, in Article 76, that the European Communities were to enjoy privileges and immunities “under the conditions laid down in the Protocol” annexed to the Treaty, and Article 28 of the Merger Treaty repealed both Article 76 and the Protocol annexed to the ECSC Treaty. The repeal of Article 16 of the latter treaty was the consequence of the entry into force of the new sole Protocol, but the content of that Protocol was not in fact incorporated into the ECSC Treaty (as the Commission rightly pointed out in its observations). On the other hand, we have seen that where the exception introduced by the last part of Article 30 of the Merger Treaty applies, the rules on jurisdiction in the ECSC Treaty are applicable. Among those rules there can certainly not be included Article 16 of the ECSC Protocol on Privileges and Immunities, which formed part of a legal instrument repealed by the Merger Treaty (in that respect my opinion coincides with that expressed by Mr Advocate General Gand in his Opinion of 29 January in Case 23/68 Klomp, [1969] ECR 43, at p. 52). The conclusion must therefore be that no rule on jurisdiction contained in the ECSC Threaty enables an individual to bring an action against a Member State when be considers that he has suffered by reason of an infringement of the Treaty. In fact, the result is no different from that which would be arrived at by application of the rules on jurisdiction contained in the EEC and EAEC Treaties as regards the Court's lack of jurisdiction to adjudicate in disputes of the kind described earlier between individuals and Member States.