MR ELVINGER,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER ANTONIO MARCHINI-CAMIA, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF HENRI MANZANARES, CENTRE LOUVIGNY, RUE ALDRINGEN,
DEFENDANT,
Subject of the case
APPLICATION FOR THE AUTHORIZATION OF THE COURT TO MAKE A VISIT OF INSPECTION FOR THE PURPOSE OF CHECKING THE MATERIALS USED FOR THE CONSTRUCTION OF THE CLUB HOUSE AND SPORTS CENTRE AT THE ISPRA RESEARCH CENTRE,
Grounds
P . 437
A - ADMISSIBILITY
THE COMMISSION RAISES A NUMBER OF OBJECTIONS TO THE ADMISSIBILITY OF THE APPLICATION, SOME OF WHICH ARE BASED ON THE FAILURE TO OBSERVE THE RULES ON JURISDICTION AND PROCEDURE CONTAINED IN ANNEX F TO THE ABOVEMENTIONED AGREEMENT OF 22 JULY 1959 AND THE REMAINDER OF WHICH ARE BASED ON THE FAILURE TO COMPLY WITH THE FORMAL REQUIREMENTS OF AND TO OBSERVE THE TIME-LIMITS PRESCRIBED FOR AN APPLICATION FOR ANNULMENT .
IN ORDER TO ADJUDICATE UPON THESE OBJECTIONS IT IS NECESSARY FIRST OF ALL TO EXAMINE THE SUBJECT-MATTER OF THE REQUEST AND THE JURISDICTION OF THE COURT TO ENTERTAIN IT .
1 . THE SUBJECT-MATTER OF THE REQUEST AND THE JURISDICTION OF THE COURT
THE COMMISSION ALLEGES THAT WHAT IS CONCERNED IS AN APPLICATION FOR ANNULMENT OF THE DECISION OF REFUSAL ADDRESSED TO THE EXCISE DUTY OFFICE .
THE APPLICANT REPLIES THAT ITS REQUEST ' SEEKS THE REVOCATION OF THE COMMISSION'S REFUSAL ' AND THAT THIS ' AMOUNTS IN SUBSTANCE TO A REQUEST TO THE COURT FOR AUTHORIZATION UNDER ARTICLE 1 OF ANNEX F '.
THE REQUEST SEEKS TO OBTAIN FROM THE COURT LEGAL AUTHORITY ENABLING THE AUTHORIZED REPRESENTATIVES OF THE EXCISE DUTY OFFICE TO ENTER LEGALLY, IF NEED BE CONTRARY TO THE WISHES OF THE INSTITUTION, UPON THE PREMISES AND BUILDINGS OF THAT INSTITUTION IN ORDER TO TAKE CERTAIN ACTION CONSTITUTING THE PRELIMINARY PHASE IN THE PREPARATION OF AN ASSESSMENT TO A LOCAL DUTY . AN INTERVENTION OF THIS KIND BY A NATIONAL ADMINISTRATIVE AUTHORITY IN THE SPHERE OF INTEREST OF A COMMUNITY INSTITUTION CONSTITUTES AN ADMINISTRATIVE MEASURE OF CONSTRAINT WITHIN THE MEANING BOTH OF ARTICLE 1 OF ANNEX F AND OF THE PRESENT ARTICLE 1 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COMMUNITIES ( AND OF ARTICLE 1 OF THE FORMER PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN ATOMIC ENERGY COMMUNITY ) AND THEREFORE REQUIRES THE AUTHORIZATION OF THE COURT . IN VIEW OF THE TRUE NATURE OF ITS SUBJECT - MATTER, THE REQUEST MUST BE CONSTRUED AS A REQUEST FOR AUTHORIZATION AND THE COURT, BY VIRTUE OF ARTICLE 1 OF THE PRESENT PROTOCOL ( AND OF THE FORMER PROTOCOL ), HAS JURISDICTION TO ENTERTAIN IT .
P . 438
2 . OTHER OBJECTIONS TO ADMISSIBILITY
( A ) THE COMMISSION ALLEGES THAT UNDER ARTICLES 35, 36, 37 AND 40 OF ANNEX F ONLY ITSELF AND THE ITALIAN GOVERNMENT ARE ENTITLED, AFTER MUTUAL CONSULTATION, TO BRING THE MATTER BEFORE THE COURT OF JUSTICE .
BY VIRTUE OF ARTICLE 35