1.

As regards the action against the Council it must in the first place, having regard to certain terminology used in the application, be made clear that this is an application based purely upon failure to act and not an action to set aside, directed against the reply of the Council of 23 March 1973. The applicant itself expressly drew attention to this in the course of the oral proceedings. Questions of admissibility therefore fall to be examined only in the light of Article 175 of the EEC Treaty. In this connexion, the Council's main objection is directed against the applicant's complaint that there has been an omission to amplify a Community Regulation, i.e. that there has not been the promulgation of a legislative act. In its opinion this does not correspond to the conditions applying to actions for failure to act brought by natural or legal persons under Article 175, third paragraph, of the EEC Treaty, since such interested parties can only submit that a Community institution has failed to address any act other than a recommendation or an opinion to a person who has previously made an appropriate request to that effect. This means that natural or legal persons can only complain of the failure to take a measure of specific concern to them. In relation to this argument various points have been established by this existing case law. According to the case law of this Court one must proceed from the fact that Article 173 of the EEC Treaty, i.e. the provision concerning actions to set aside, and Article 175 of the Treaty, i.e. the provision on actions for failure to act, constitute provisions relating to the same legal remedy. This means that it could be appropriate to give a similar interpretation to acts that can be made the subject of legal proceedings by private individuals whether by way of an action for annulment of an act actually promulgated or by way of complaint that a Community institution has failed to promulgate an act. In this respect I refer to the judgment in Case 15/70 (Chevally v Commission, (Rec. 1970, p. 979). Moreover, as regards Article 173, second paragraph, pursuant to which any natural or legal person may institute proceedings against a decision which, though in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former, it has been made clear that real regulations cannot be impugned under this provision. In this connexion, the term ‘regulations’ must be understood as legislative acts the provisions of which are applicable not to a limited circle of defined or definable persons, but to categories referred to in an abstract manner (Vide Case16 and 17/62 — Confédération nationale des producteurs de fruits et legumes, and others v Council, (Rec. 1962, p. 979) or — as it is stated in judgment 6/68 — Zuckerfabriek Watenstedt GmbH v Council, (Rec. 1968, p. 619) — which has legal effects on classes of persons defined in a general and abstract manner. (Cf. also in this context the judgment in Case 30/67 (— AG Industria Molitoria Imolese v Council (Rec. 1968, p. 183). Accordingly private persons can proceed only against decisions and against such regulations as have the appearance only of a regulation but which as regards their legal character must be treated as decisions — and this only subject to certain further conditions that are not of interest in the present context. This emerges clearly from Judgment 16 and 17/62 (and indeed this was really the situation in Cases 41 to 44/70 — International Fruit Company and others v Commission (Rec. 1971, p. 422). Since for the purpose of capacity to sue under Article 175, third paragraph, the important factor is the legal nature of the decision which is asked for (vide in this context the judgment in Case 30/59 De Gezamenlijke Steenkolenmijnen in Limburg v High Authority (Rec. 1958-1959, p. 37) it follows both from the conclusions referred to, as well as from the terminology used in Article 175, third paragraph — ‘to address to that person any act…’ — that this provision also exludes the possibility of admitting complaints by private individuals to the effect that there had been an omission to make a regulation. This was expressly underlined in relation to ‘general provisions’ in Case 15/71 — Mackprang v Commission (Rec. 1971, p. 803); as regards actual regulations the question was clearly decided in Case 42/71 — Nordgetreide v Commission (Rec. 1972, p. 110). If one applies this case law to the present proceedings, then the decisive question is whether what the applicants seek to bring about, i.e. extending the subsidy regulation to oil mills in North Rhine-Westphalia, actually amounts to a real regulation within the meaning of the Treaty. I can give you my conclusions at the outset — there cannot in my view be the slightest doubt that this is the case. Admittedly, the applicant argues that the measure it wishes to see taken applies only to an area in which, apart from the applicant, there are only six other interested parties; that furthermore, it cannot be disputed that this circle of parties affected was definable at the time when the regulation should have been made. However, it is crucial that the measure desired would have to be a provision having a permanent character, valid for at least a year. In the case of such measures one cannot for the purpose of defining their legal character refer to the point of time when they were promulgated or to some other point of time and ask who, looking at the matter in this way, is affected by them. This was expressly underlined in Judgment 6/68. Rather must one ask what range of parties is, during the complete period of validity of such a provision, brought within its ambit. In the present case it is clear that the circle of persons affected can change, that it does not seem capable of definition, that therefore the parties to whom the measure is addressed can only be delimited in an abstract sense, as it is said in the relevant case law. Beyond this and quite apart from the fact that there can be legislative acts — as is shown by Case 30/67 — which are intended to apply to a particular area only, one must not in this context overlook the fact to implement the principle which the applicant regards as crucial (a progressive system of special subsidies related to the distance from the production areas) would render necessary an extension of the provision to wider areas and would even — as the defendant has shown — involve a remodelling of the whole subsidy system, having regard to the inter-connexion between the provisions on the organization of the market. Accordingly, there can be no question that the measure sought is in the nature of a regulation, and according to the case law it would follow from this that there can indeed be no possibility of treating the action as admissible. However, as regards some of the applicant's arguments it still remains to be examined whether there is not nevertheless some way of avoiding this rather unsatisfactory result. As you know, the applicant regards it as important that the principles developed in relation to Article 173, second paragraph, should in relation to Article 175, third paragraph, only be applied in an analogous fashion. As regards Article 173, second paragraph, in the applicant's view it may be said that in that context there is no requirement of legal protection necessitating the admission of actions by private parties against regulations, since there are possibilities of contesting implementing acts based upon the regulations and for the legality of the regulations thus to be questioned. Since however, the applicant takes the view that there is no such possibility where a general measure only favours specific circles and when persons not included therein seek an extension of the measure, one feels bound in relation to Article 175 to favour a point of view — with the object of avoiding a gap in the system of legal protection — that results in real regulations being likewise eligible as the subject matter of an action — at any rate where the applicant is individually and directly affected by its nonpromulgation. On closer examination, however, it will be seen that a result favourable to the applicant cannot be achieved on this basis. Firstly, one can also think in terms of regulations that do not involve implementing acts, so that — excluding regulations as contestable acts — Article 173 also will occasionally leave gaps in the system of legal protection under the Treaty. Furthermore, even if one accepts the principle illustrated in the judgment in Case 25/62 (Plaumann v Commission, Rec. 1963, p. 237) of not interpreting Treaty provisions in the right to sue in too restrictive a fashion, yet one cannot go so far as to ignore a system that clearly emerges from the Treaty. The Court emphasized this point in Case 6/68. Since, however, the system of the EEC Treaty clearly excludes the right of individuals to sue in relation to Community regulations — this emerges particularly from its original history and from a comparison with the different system under the ECSC Treaty — it is not really justifiable to declare the action against the Council admissible on the basis of general considerations concerning the desirable delimitation of legal protection, though they might certainly de lege ferenda be worthy of attention. Accordingly, this only leaves us with the conclusion unfavourable to the applicant. Since moreover this result is in my view quite unambiguous it seems equally unnecessary to go into further objections raised by the Council.