13.

In the event that the Court should not agree with this result, I shall set out in brief the following points regarding the objections in question. In the first place, the Commission has pointed out that ENU did not argue that the Commission failed to issue a legal measure to the company, but rather that it failed to issue a legal measure to the Agency. The fact that the second paragraph of Article 53 enables the parties concerned to refer to the Commission acts performed by the Agency does not, in the Commission's view, mean that the decisions given must refer specifically to those parties. The Commission has argued on that basis that ENU has failed to comply with the provisions set out in the third paragraph of Article 148, under which a natural or legal person may bring proceedings for a failure to act only if ‘an institution of the Community has failed to address to that person any act ...’. ( 13 ) That objection cannot be accepted. It is in my opinion evident that interested parties, who can refer acts of the Agency to the Commission under the second paragraph of Article 53, must be in a position to institute proceedings before the Court for the annulment of decisions upholding acts of the Agency, or proceedings for failure to act in respect of failure by the Commission to give a decision. The legal interpretation proposed by the Commission constitutes, as I see it, an unacceptable restriction of an individual's opportunity to request the Court to examine decisions which directly affect that individual. The second paragraph of Article 53 establishes a complaints procedure; this means that the Commission is required to address objections brought by interested parties against acts of the Agency and it is precisely towards those parties that the Commission decision must direct the Agency to act in a particular manner with regard to the exercise of its right of option or its exclusive right to conclude contracts. Apart from the fact that the Commission decision is naturally addressed to the Agency, in the sense that it directs that body to act in a particular manner, it is both reasonable and natural also to treat the parties concerned as addressees of a decision concerning the manner in which the Agency is required to act towards those parties. The Commission's second objection is that ENU failed to meet the procedural requirements governing an action in respect of a failure to act. The second paragraph of Article 148 of the Treaty lays down three requirements of this kind. The institution in question must first have been ‘called upon to act’ and must not, ‘within two months of being so called upon’, have ‘defined its position’. Thirdly, the action must have been brought ‘within a further period of two months’. The Commission has argued that ENU's letter of 21 December 1990 cannot simultaneously constitute a reference to the Commission under the second paragraph of Article 53 and a request to act under the second paragraph of Article 148. The Commission has referred in particular to the fact that the procedure to be followed when an action is brought in connection with a failure to act cannot be instituted until the Commission, in breach of the Treaty, has failed to adopt a decision. Since there can be such an unlawful omission only after expiry of the period within which a decision must be taken under the second paragraph of Article 53, compliance with the procedural requirements laid down in the second paragraph of Article 148 presupposes that a fresh request that it take a decision must have been submitted to the Commission following the expiry of that first period. The decision on that objection is not entirely straightforward. It would seem obvious at first sight to base oneself on the Commission's interpretation of Article 148, according to which a ‘call to act’ may be made only once the Commission has already rendered itself culpable through its failure to act. That is a natural interpretation, since the purpose of the procedure laid down in the second paragraph of Article 148 is to give the institution concerned an opportunity to consider the lawfulness of its inaction and thereby avoid an action for failure to act. ( 14 ) The present situation, however, is peculiar by virtue of the fact that in this particular case it is ENU's reference to the Commission under the second paragraph of Article 53 which imposes on that institution an obligation to act. It strikes me as unnecessarily formalistic in such a situation to require that ENU must, after expiry of one month, inform the Commission afresh of its desire that the Commission should take a decision. ENU outlined in its letter of 21 December 1990 the type of decision which it believes the Commission ought to adopt and referred expressly to Article 148 of the Treaty. Accordingly, the letter must be taken as satisfying the requirement of a ‘call to act’ laid down in the Court's case-law. ( 15 ) The Commission could not at any time have been in doubt that its failure to issue a decision would be criticized by ENU as a failure to act, in breach of the Treaty, and might result in proceedings being brought for failure to act. The legal protection which the second paragraph of Article 148 is designed to confer on the Commission would consequently appear to have been taken fully into account in the present instance. Furthermore, the above interpretation is, in my opinion, consistent with the wording of Article 148. It can therefore be held without any difficulty: (a) that the Commission was called upon to act under the second paragraph of Article 148; (b) that the Commission failed to act within a two-month period; (c) that the case was brought before the Court within a further two-month period, and; (d) that the action relates to the fact that the Commission, in breach of the Treaty, failed to ‘give a decision’, since it was evident when the proceedings were initiated that the Commission had failed to give a decision within the one-month period required under the second paragraph of Article 53. In so far as the Court should consider it necessary to rule on the Commission's two objections, I would accordingly propose that both those objections should be dismissed.