2.

The defendant argues first that there is no failure to act within the meaning of Article 175 of the Treaty, for it had ‘defined its position’ before the expiry of the two months' period. In fact — and here I quote—‘the letter of 22 December 1969 and, in particular, the exclusion of any possibility of bringing an action for failure to act based on the request made constituted a reply implying a refusal to act in compliance with the request and amounts to a clarification of attitude which excludes the bringing of an action for failure to act’. On this I have the most serious doubts. As I have just said, the letter to which the Commission is referring merely informs the applicants that the draft law is being studied by its departments; it is, in that light, an interim reply which does not involve any definition of position. On the precise point of the decision to be addressed to the applicants there is no reply of any sort; the Commission does not say that it will communicate its decision after examining the position, or that it refuses to address one to the applicants. As for pointing out that there is no possibility of bring an action on the basis of the requests presented, that is merely the statement of an opinion on the admissibility of any subsequent action, and not a definition of the Commission's position in response to the request (which sought a decision to be addressed to the applicants and not the recognition of their right to bring legal actions). It should also be noted that, according to the defendant, the wording used in the letter in question implied a refusal to act in the manner requested; but an implied refusal does not constitute the defining of the institution's position within the meaning of Article 175 of The Treaty, indeed it is the archetypal case for which the action instituted by that article was provided. The Commission, it is true, cites your judgment of 1 March 1966 in Alfons Lütticke GmbH and others v Commission of the EEC (Case 48/65 [1966] ECR 19), but in my opinion mistakenly. In that case, the applicants had requested the Comimssion to declare that the conditions for the imposition by the Federal Republic of the turnover equalization tax on imported powdered milk products were improper, to decide to initiate proceedings under Article 169 and to inform them of the decisions adopted. Following the letter in which the Commission told them that it did not share their opinion that the equalization tax constituted an infringement of Article 95 and did not consider it necessary to intervene, they brought an action for failure to act. You dismissed the action as inadmissible, because you held that the institution had defined its position; but, as opposed to the present case, the defining of its position related to the subject-matter of the request and to the substance of the case. It must lastly be noted that on 12 March 1970 a Vice-President of the Commission informed the applicants, in order to avoid any misunderstanding, that the letter of 22 December 1969 defined exactly the position adopted by the institution following the request and that no further reply was to be expected. That letter, which moreover was subsequent to the lodging of the application, does not seem to me to constitute the defining of a position either; it is irrelevant to the determination of the admissibility of the Borromeos' conclusions and cannot lead you to consider that judgment should not be given (see, for a different situation, the judgment of 2 July 1964 in Rhenania Schiffahrts- und Speditions- Gesellschaft mbH and Others v Commission of the EEC, Case 103/63 [1964] E.C.R. 425).