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Judgment of the Court of 1 March 1966. - Alfons Lütticke GmbH v Commission of the EEC. - Case 48-65. European Court reports French edition Page 00027 Dutch edition Page 00028 German edition Page 00028 Italian edition Page 00026 English special edition Page 00019 Danish special edition Page 00169 Greek special edition Page 00243 Portuguese special edition Page 00305 Spanish special edition Page 00305 Swedish special edition Page 00237 Finnish special edition Page 00237

Summary Parties Subject of the case Grounds Decision on costs Operative part

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MEMBER STATES OF THE EEC - FAILURE TO FULFIL AN OBLIGATION ARISING UNDER THE TREATY - APPLICATION TO THE COMMISSION TO INITIATE THE PROCEDURE PROVIDED FOR IN ARTICLE 169 OF THE EEC TREATY - REFUSAL OF THE COMMISSION - APPLICATION FOR ANNULMENT - INADMISSIBILITY

AN APPLICATION FOR THE ANNULMENT OF A MEASURE BY WHICH THE COMMISSION HAS ARRIVED AT A DECISION ON AN APPLICATION TO INITIATE THE PROCEDURE LAID DOWN TO DEAL WITH THE FAILURE OF A MEMBER STATE TO FULFIL AN OBLIGATION UNDER THE EEC TREATY IS INADMISSIBLE, SINCE THE INITIATION OF THIS PROCEDURE IS PART OF THE ADMINISTRATIVE STAGE THEREOF AND NO MEASURE TAKEN BY THE COMMISSION DURING THIS STAGE HAS ANY BINDING FORCE .

IN CASE 48/65

( 1 ) ALFONS LUETTICKE GMBH, HAVING ITS REGISTERED OFFICE AT KOELN-DEUTZ,

( 2 ) DR OTTO SUWELACK NACHF . KG, HAVING ITS REGISTERED OFFICE AT BILLERBECK ( WESTPHALIA ), REPRESENTED BY ITS PARTNER BEARING PERSONAL LIABILITY, WOLFGANG SUWELACK,

( 3 ) KURT SIEMERS & CO ., HAVING ITS REGISTERED OFFICE IN HAMBURG, ASSISTED BY PETER WENDT, ADVOCATE OF THE HAMBURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF FELICIEN JANSEN, HUISSIER, 21 RUE ALDRINGER,

APPLICANTS,

V

COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, JOCHEN THIESING, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF HENRI MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ,

DEFENDANT,

APPLICATION, PRINCIPALLY, FOR THE ANNULMENT OF A DECISION OF THE COMMISSION OF THE EEC AND, ALTERNATIVELY, AGAINST THE FAILURE OF THAT BODY TO ACT, EACH APPLICATION CONCERNING THE IMPOSITION, BY THE FEDERAL REPUBLIC OF GERMANY, OF A TURNOVER EQUALIZATION TAX ON DAIRY PRODUCTS IMPORTED AFTER 1 JANUARY 1962,

P.26

IN A LETTER DATED 15 MARCH 1965, THE APPLICANTS MADE AN APPLICATION TO THE COMMISSION ON THE BASIS OF ARTICLE 175 OF THE TREATY .

THE APPLICANTS REQUESTED THAT THE COMMISSION TAKE A DECISION (' BESCHLUSS ') TO THE EFFECT THAT, AS FROM 1 JANUARY 1962, THE IMPOSITION BY THE FEDERAL REPUBLIC OF GERMANY OF A TURNOVER EQUALIZATION TAX OF 4 PER CENT ON THE IMPORTATION OF POWDERED MILK AND OTHER DRIED MILK PRODUCTS IS AN INFRINGEMENT OF ARTICLE 95 OF THE TREATY AND THAT IT SHOULD DECIDE (' BESCHLIESSEN ') TO INITIATE AGAINST THE FEDERAL REPUBLIC THE PROCEDURE LAID DOWN IN ARTICLE 169 AND INFORM THE APPLICANTS OF THE DECISIONS (' BESCHLUESSE ') ADOPTED .

P.27

AFTER CONSIDERING THIS REQUEST, THE COMMISSION INFORMED THE APPLICANTS IN A LETTER DATED 14 MAY 1965 THAT IT DID NOT SHARE THEIR OPINION THAT THE SAID TURNOVER EQUALIZATION TAX CONSTITUTED AN INFRINGEMENT OF ARTICLE 95 OF THE TREATY .

THE APPLICANTS THEN BROUGHT AN APPLICATION UNDER ARTICLE 173 OF THE TREATY FOR THE ANNULMENT OF THIS DEFINITION OF ITS POSITION .

THE DEFENDANT ALLEGES THAT THIS APPLICATION IS INADMISSIBLE ON THE GROUND THAT AN APPLICATION FOR ANNULMENT CANNOT LIE AGAINST THE MEASURE IN QUESTION .

THE OBJECT OF THE REQUEST OF 15 MARCH IS TO SECURE THE INITIATION OF THE PROCEDURE LAID DOWN IN ARTICLE 169 AGAINST A MEMBER STATE AND TO COMPEL THE COMMISSION TO TAKE THE MEASURES IMPLIED BY THAT ARTICLE .

THE OBJECT OF THE PROCEDURE UNDER ARTICLE 169 IS TO PREVENT MEMBER STATES FROM FAILING IN THEIR OBLIGATIONS UNDER THE TREATY .

FOR THIS PURPOSE, THE SAID ARTICLE EMPOWERS THE COMMISSION TO SET IN MOTION A PROCEDURE WHICH MAY LEAD TO AN ACTION BEFORE THE COURT OF JUSTICE TO DETERMINE THE EXISTENCE OF SUCH A FAILURE BY A MEMBER STATE; UNDER THE TERMS OF ARTICLE 171 OF THE TREATY THE STATE CONCERNED WOULD THEN BE REQUIRED TO TAKE THE NECESSARY MEASURES TO COMPLY WITH THE JUDGMENT OF THE COURT .

THE PART OF THE PROCEDURE WHICH PRECEDES REFERENCE OF THE MATTER TO THE COURT CONSTITUTES AN ADMINISTRATIVE STAGE INTENDED TO GIVE THE MEMBER STATE CONCERNED THE OPPORTUNITY OF CONFORMING WITH THE TREATY . DURING THIS STAGE, THE COMMISSION MAKES KNOWN ITS VIEW BY WAY OF AN OPINION ONLY AFTER GIVING THE MEMBER STATE CONCERNED THE OPPORTUNITY TO SUBMIT ITS OBSERVATIONS .

NO MEASURE TAKEN BY THE COMMISSION DURING THIS STAGE HAS ANY BINDING FORCE . CONSEQUENTLY, AN APPLICATION FOR THE ANNULMENT OF THE MEASURE BY WHICH THE COMMISSION ARRIVED AT A DECISION ON THE APPLICATION IS INADMISSIBLE .

IN THEIR ALTERNATIVE CONCLUSIONS THE APPLICANTS COMPLAIN OF FAILURE TO ACT UNDER ARTICLE 175 .

THE DEFENDANT CLAIMS THAT THE ALTERNATIVE APPLICATION IS ALSO INADMISSIBLE .

UNDER THE TERMS OF THE SECOND PARAGRAPH OF ARTICLE 175, PROCEEDINGS FOR FAILURE TO ACT MAY ONLY BE BROUGHT IF AT THE END OF A PERIOD OF TWO MONTHS FROM BEING CALLED UPON TO ACT THE INSTITUTION HAS NOT DEFINED ITS POSITION .

IT IS ESTABLISHED THAT THE COMMISSION HAS DEFINED ITS POSITION AND HAS NOTIFIED THIS POSITION TO THE APPLICANTS WITHIN THE PRESCRIBED PERIOD .

THE PLEA OF INADMISSIBILITY IS THEREFORE WELL FOUNDED .

UNDER THE TERMS OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

AS THE APPLICATION OF THE APPLICANTS IS INADMISSIBLE, THEY MUST BE ORDERED TO PAY THE COSTS .

THE COURT

HEREBY :

1 . DISMISSES APPLICATION 48/65 AS INADMISSIBLE;

2 . ORDERS THE APPLICANTS TO PAY THE COSTS OF THE ACTION .