Josef Buckl & Söhne OHG and others v Commission of the European Communities.
Date: 1992-11-24
4 However, according to Article 4 of the Regulation:
"If the Commission discovers that products covered by the arrangements laid down in Article 1 are being imported into the Community at such prices that they cause or threaten to cause serious injury to Community producers of like or directly competing products, the levies applied in the Community may be partly or completely re-established for the products concerned with regard to the countries or territories causing the injury. Such a measure may also be taken in the case of serious injury or the threat of serious injury to a specific region of the Community."
14 Without it being necessary to examine that argument, it should be noted that, as the Court stated in the judgments in Case 377/87 (Parliament v Council [1988] ECR 4017, at paragraph 9) and Case 383/86 (Commission v Council [1988] ECR 4051, at paragraph 9), the remedy provided for in Article 175 is founded on the premise that the failure to act on the part of a Community institution enables an action to be brought before the Court in order to obtain a declaration that the failure to act is contrary to the Treaty, in so far as it has not been repaired by the institution concerned. The effect of that declaration, under Article 176, is that the defendant institution is required to take the necessary measures to comply with the judgment of the Court, without prejudice to any actions to establish non-contractual liability to which the aforesaid declaration may give rise.
15 In a case such as the present one, where the act whose absence constitutes the subject-matter of the proceedings was adopted after the action was brought but before judgment, a declaration by the Court to the effect that the initial failure to act is unlawful can no longer bring about the consequences prescribed by Article 176. It follows that in such a case, as in cases where the defendant institution has responded within the period of two months after being called upon to act, the subject-matter of the action has ceased to exist (see Parliament v Council, cited above, paragraph 10, and Commission v Council, cited above, paragraph 10).
16 The fact that the position adopted by the Commission has not satisfied the applicants is of no relevance in this respect.
17 According to the case-law (see in particular the judgment in Case 8/71 Komponistenverband v Commission [1971] ECR 705, paragraph 2), Article 175 refers to failure to act in the sense of failure to take a decision or to define a position, not the adoption of a measure different from that desired or considered necessary by the persons concerned.
22 As can be seen from the judgment in Case 42/71 Nordgetreide v Commission [1972] ECR 105, at paragraph 5, a decision by the Commission which amounts to a rejection must be appraised in the light of the nature of the request to which it constituted a reply.
24 According to the judgment in Case 307/81 Alusuisse v Council and Commission [1982] ECR 3463, paragraph 8, an action for annulment brought by an individual is inadmissible in so far as it is directed against a regulation having general application within the meaning of the second paragraph of Article 189 of the EEC Treaty, the test for distinguishing between a regulation and a decision being whether or not the measure in question has general application. It is therefore necessary to determine the nature of the contested act and in particular the legal effects which it is intended to or does actually produce.
25 An act does not lose its character as a regulation simply because it may be possible to ascertain the number or even the identity of the persons to which it applies at any given time as long as there is no doubt that it is applicable as the result ofan objective situation of law or a fact which it specifies and which is in harmony with its ultimate objective (judgment in Case 6/68 Zuckerfabrik Watenstedt v Council [1968] ECR 409).
29 That argument cannot be accepted. While it is true that in the context of anti-dumping procedures the Court has accepted that complainants may in particular cases be entitled to bring an action for annulment against the refusal by the Commission to institute an anti-dumping procedure, it acknowledged that right only in view of the legal position granted to them in the relevant basic regulations (see the judgment in Case 191/82 FEDIOL v Commission [1983] ECR 2913, paragraph 31). Those regulations recognize that Community producers have a legitimate interest in the introduction of anti-dumping measures and define certain specific rights in their favour, namely the right to submit to the Commission all evidence which they consider appropriate, the right to see all information obtained by the Commission subject to certain exceptions, the right to be heard at their request and to have the opportunity of meeting the other parties concerned in the same proceeding, and finally the right to be informed if the Commission decides not to pursue a complaint (FEDIOL v Commission, cited above, paragraph 25).