Judgment of the Court of 18 November 1970. - Amedeo Chevalley v Commission of the European Communities. - Case 15-70.



European Court reports 1970 Page 00975

Greek special edition Page 00527

Spanish special edition Page 00189

Swedish special edition Page 00497

Finnish special edition Page 00495



Parties

Subject of the case

Grounds

Operative part



Parties

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IN CASE 15/70

AMEDEO CHEVALLEY, RESIDING IN TURIN, ASSISTED BY G . G . STENDARDI OF THE MILAN BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 34 RUE PHILIPPE-II, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, BRUSSELS, REPRESENTED BY ITS LEGAL ADVISER, ARMANDO TOLEDANO-LAREDO, ACTING AS AGENT, 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 UNDER ARTICLE 175, OR ALTERNATIVELY UNDER ARTICLE 173, OF THE EEC TREATY FOR A RULING THAT THE DEFENDANT HAS CONTRAVENED THE TREATY BY FAILING TO TAKE A DECISION IN RESPECT OF THE APPLICANT WHICH HE HAD SOUGHT,

Grounds

1 BY APPLICATION LODGED ON 13 APRIL 1970, THE APPLICANT, WHO IS THE PROPRIETOR OF AGRICULTURAL LAND SITUATED IN ITALY, INSTITUTED AN ACTION BASED ON ARTICLE 175 OF THE EEC TREATY FOR A DECLARATION THAT THE DEFENDANT HAS INFRINGED THE TREATY BY FAILING TO ADDRESS TO HIM A DECISION WHICH HE HAD CALLED UPON IT TO TAKE .

2 THIS DECISION WOULD HAVE INVOLVED FIXING THE DETAILED RULES TO BE FOLLOWED BY THE APPLICANT FOR THE WORDING OF LEASES OF HIS AGRICULTURAL LAND WHEN A DRAFT LAW ON THE METHOD OF FIXING THE RENTS FOR AGRICULTURAL LAND WHICH HAD BEEN ADOPTED BY THE SENATE OF THE ITALIAN REPUBLIC HAD BECOME LAW .

3 THE DEFENDANT HAS REQUESTED THE COURT, UNDER ARTICLE 91 OF THE RULES OF PROCEDURE, TO DECIDE ON THE ADMISSIBILITY OF THE APPLICATION WITHOUT DISCUSSING THE SUBSTANCE OF THE CASE .

4 AS A RESULT OF THIS PRELIMINARY OBJECTION, THE APPLICANT HAS, IN THE ALTERNATIVE, INVITED THE COURT TO EXAMINE THE ADMISSIBILITY OF HIS APPLICATION FROM THE VIEWPOINT OF ARTICLE 173 OF THE TREATY, BY REASON OF THE FACT THAT THE COMMISSION INFORMED HIM IN RESPONSE TO HIS REQUEST TO IT " THAT IN THIS CASE NO MEASURE MUST BE TAKEN " IN RESPECT OF THE APPLICANT .

THE DESIGNATION OF THE APPLICATION

5 THE PRELIMINARY OBJECTION OF INADMISSIBILITY IS BASED ESSENTIALLY ON THE GROUND THAT NO MEASURE EXISTS CAPABLE OF FORMING THE SUBJECT-MATTER OF AN ACTION UNDER ARTICLE 175 .

6 THE CONCEPT OF A MEASURE CAPABLE OF GIVING RISE TO AN ACTION IS IDENTICAL IN ARTICLES 173 AND 175, AS BOTH PROVISIONS MERELY PRESCRIBE ONE AND THE SAME METHOD OF RECOURSE .

7 IT APPEARS UNNECESSARY THEREFORE, FOR THE PURPOSES OF A DECISION ON THE PRELIMINARY OBJECTION OF INADMISSIBILITY, TO DESIGNATE THE APPLICATION IN RELATION TO THE TWO PROVISIONS CITED BY THE APPLICANT .

THE ADMISSIBILITY OF THE APPLICATION

8 THE APPLICANT REQUESTED THE COMMISSION TO GIVE A RULING ON THE CONDUCT TO BE FOLLOWED BY HIM IN THE FACE OF POSSIBLE CONFLICT BETWEEN THE NATIONAL LEGISLATION AND CERTAIN PROVISIONS OF COMMUNITY LAW WHEN THE DRAFT LAW REFERRED TO BY HIM BECAME AN EFFECTIVE LAW OF THE ITALIAN REPUBLIC .

9 DURING THE PROCEEDINGS THE APPLICANT STATED THAT HE SOUGHT FROM THE COMMISSION NOT MERELY AN OPINION BUT AN " ORDER " WHICH WOULD BE MANDATORY FOR HIM, SO THAT THE MEASURE WHICH THE COMMISSION REFUSED TO ADOPT IN RESPECT OF HIM WOULD HAVE CONSTITUTED A DECISION WITHIN THE MEANING OF ARTICLE 189 .

10 THE NATURE OF THE DISPUTED MEASURE DEPENDS SOLELY ON ITS CONTENT AND SCOPE . BY REQUESTING THE COMMISSION TO ADOPT A DECISION FIXING THE TERMS AND DETAILED RULES TO BE FOLLOWED IN PRACTICE ON CONCLUDING LEASES, THE APPLICANT WAS ACTUALLY SEEKING FROM THE COMMISSION NOT A DECISION WITHIN THE MEANING OF ARTICLE 189 BUT ADVICE ON THE COURSE OF CONDUCT TO BE ADOPTED IN THE FACE OF POSSIBLE CONFLICT BETWEEN HIS NATIONAL LEGISLATION AND CERTAIN PROVISIONS OF COMMUNITY LAW .

11 SUCH A MEASURE WOULD BE EQUIVALENT NOT TO A DECISION BUT TO AN OPINION WITH THE MEANING OF THE LAST PARAGRAPH OF ARTICLE 189 OF THE TREATY .

12 MOREOVER, BY ADOPTING THE MEASURE SOUGHT THE DEFENDANT WOULD HAVE BEEN REQUIRED FIRST TO ASSESS WHETHER THE DRAFT LAW IN QUESTION CONFORMED WITH THE TREATY . THIS WOULD THEREFORE STILL HAVE RESULTED IN A MEASURE OTHER THAN THOSE REFERRED TO IN THE THIRD PARAGRAPH OF ARTICLE 175 .

13 SUCH A DEFINITION OF POSITION CANNOT BE CONSIDERED AS A MEASURE CAPABLE OF FORMING THE SUBJECT-MATTER OF AN ACTION UNDER THE THIRD PARAGRAPH OF ARTICLE 175 .

14 CONSEQUENTLY, THE EXPRESS REFUSAL BY THE COMMISSION TO DEFINE ITS POSITION AS REQUESTED CANNOT FORM THE SUBJECT-MATTER OF PROCEEDINGS UNDER ARTICLE 173 EITHER .

15 THE APPLICATION MUST THEREFORE BE DISMISSED AS INADMISSIBLE .

16 UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .

Operative part

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE;

2 . ORDERS THE APPLICANT TO PAY THE COSTS .