5.

It remains to be considered whether the application can be declared admissible as far as the Italian undertaking is concerned. As regards the observance of the time-limit, the Commission acknowledges that in this case the action against Decision No 3713/83 was brought in due time and is therefore in order. Being granted a longer period within which to lodge its application, Bensider had to do so by 25 February 1984 at the latest, and that is what it in fact did. The application is, however, vitiated in another respect. Bensider describes itself as a “società a responsabilità limitata” [private limited company] governed by Italian law. However, on 25 February 1984 it was not yet entered in the commercial register in the city in which its princiapl office is located. Since, under Italian law and in particular pursuant to Article 2331 and 2475 of the Civil Code, it is “by entiy in the commercial register [that] a company acquires legal personality” (Article 2331), it seems obvious — the Commission claims — that on the date of lodgment of the application Bensider had no entitlement to institute proceedings before this Court. “Pas d'action sans personnalité” is the premise upon which the defendant relies; and in the result the application must be declared inadmissible by reason of the applicant's lack of capacity to be a party to legal proceedings. I do not believe that it is necessary here, because the facts are clearly set out in the Report for the Hearing, to describe in detail the complications attending the birth of the applicant, or to recall how it entered the world of the law. I would note however that the first argument upon which Bensider relies is based on the practice, which is widespread both in Italy and elsewhere, whereby a general meeting of a company may ratify, with retroactive effect, the steps taken by the sole director before entry of the company in the commercial register. In the present case, thanks to this fictio iuris, Bensider is said to have had capacity to be a party in legal proceedings as from 9 February, the date of the instrument constituting it, and therefore it also had that capacity on 25 February 1984, when the application in these proceedings was lodged at the Registry. The applicant contests the Commission's objection from a second viewpoint. The Commission relies on an Italian provision — by virtue of which the capacity to be a party to legal proceedings is conditional upon entry in the commercial register — which is unknown to the Community system. That provision — it is argued — cannot therefore be relied upon in the proceedings before this court. Like the Commission, I consider the application inadmissible; but, in my opinion, in order to reach that conclusion it is unnecessary to follow the path suggested by the lawyer representing the Commission. Admittedly, in principle, anyone wishing to check whether a natural or legal person is entitled to be a party to legal proceedings will ask whether that person has capacity to act under his national law. However, it is not always necessary to carry out such a check as a preliminary measure. Let me take an example as close as possible to the presente case: the legal personality acquired by an undertaking (for example, a steel dealer) under the law of the State in which it operates does not in itself mean that it is also entitled to act under the second paragraph of Article 33 of the ECSC Treaty. Naturally, the converse is also true: thus, the fact that an undertaking has no legal personality does not automatically prevent it from relying upon that article. What is suggested by this example? It seems to me to be possible to derive from it a rule of conduct: in the Community context the admissibility of an application for a declaration that a measure is void may certainly be considered on the basis of the conditions specifically imposed by the Community procedural system; there is, however, no inescapable obligation to establish, as a matter of priority, whether the conditions laid down by national law for such actions have been satisfied. There are many decisions of this Court to that effect. I would add that, where it is necessary to decide as to the capacity of a person to be a party to proceedings before this Court, the Court has always adopted a realistic approach and dealt with the specific aspects of each case so as not to attach excessive importance to the formal requirements of the laws of the various Member States (cf. recent judgment of 28 October 1982 in Case 135/81, Groupement des Agences de Voyages, Asblv Commission, [1982] ECR 3799). In the last analysis, it seems to me that for locus standi to be validly established for the purposes of Community procedure, the Court attaches particular importance to one requirement: that the party should be capable from the outset of lawfully exercising its rights as a party to proceedings. In other words, it must have the locus standi appropriate to the right which it intends exercising in the specific proceedings in question. I shall now consider the present case. It too concerns locus standi to be a party to Community proceedings: as I have just observed, therefore, the solution is to be sought in the relevant law. The question which then arises is whether, upon expiry of the period for an action to be brought (25 February 1984), Bensider was lawfully empowered to exercise its right of action, as provided for in the second paragraph of Article 33 of the ECSC Treaty. I do not think so. I shall first mention the conditions laid down in that provision. It provides that “Undertakings ... may ... institute proceedings ... against general decisions or recommendations which they consider to involve a misuse of powers affecting them. In the first place, therefore, the action must be taken by an undertaking. The undertaking therefore may challenge the general decisions or recommendations, but only on one ground: the misuse of powers affecting them directly. I shall analyse these two conditions one after the other. Fulfilment of the first condition cannot, it seems to me, be ascertained otherwise than by reference to the definition of undertaking given in Article 80 of the ECSC Treaty. I have already stated in Section 2 of this Opinion that, with the clear intention of subjecting steel dealers to Community rules in the iron and steel market, Article 2 of Decision No 3717/83 identifies those dealers as “distributive undertakings ... which effect ... sales ... within the common market”. That provision therefore requires that the undertakings upon which it imposes certain obligations should fulfil the requirements laid down in the more general definition contained in Article 80: that is to say they must be undertakings which regularly engage in distribution. In that phrase the emphasis clearly falls upon the adverb, What does “regularly” mean? I can say unhesitatingly tha nowhere in the abundant case-law of th( Court have I found any precedent tc clarify the meaning and scope of the word. It is a fact, however, that in ai least two of the three cases in which il was referred to the undertakings in question had engaged in trade and sales frequently and for a long time (judgment of 20. 3. 1957 in Case 2/56 Mining Undertakings of the Ruhr Basin v High Authority of the European Coal and Steet Community [1957] and [1958], ECR 3; order of 4. 12. 1957 in Case 18/57 Nola v High Authority of the European Coal and Steel Community [1957] and [1958], ECR 121; judgment of 19. 3. 1964 in Case 67/63 Société Rhénane d'Exploitation et de Manutention “SOREMA” v High Authority of the European Coal and Steel Community, [1964] ECR 151). Are those decisions a sufficient basis for the view that regularity involves repeated and prolonged distribution activity? I doubt it because such an interpretation leaves too many questions unanswered (how many instances of distribution are necessary before it can be discribed as “repeated”? And how much time must pass before it can be described as “prolonged”?). I think, rather, that the correct solution is to be arrived at by reference to a dictionary of the French language (Petit Robert, Paris, 1981) in which the word “habituel” is stated to describe conduct “qui tient de l'habitude par sa régularité, sa constance”. Those are two concepts which can be examined by a court without any difficulty. On the basis of Article 80, therefore, distribution activity must be other than occasional: that is to say normal, ordinary or, if you prefer, effective activity. Does Bensider fulfil that requirement? Article 4 of the instrument constituting it does in fact state that its object is to act as an intermediary and to trade in iron and steel products. But nobody who goes through its curriculum vitae can reasonably assert that, at the end of the period prescribed for the bringing of an action, that object had been pursued by the management of the company in a normal or effective manner. At least, the documents relating to the case provide no indication to that effect: and I think that that is a sufficient basis for the conclusion that on 25 February 1984 Bensider did not have the locus standi contemplated in the second paragraph of Article 33 of the ECSC Treaty to institute proceedings against Decision No 3717/83.