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Judgment of the Court of 24 November 1992.

Josef Buckl & Söhne OHG and others v Commission of the European Communities.

Common organization of the market in poultrymeat - Ducks and geese - Levy on products originating in Hungary and Poland - Action for failure to act - Action for annulment.

Joined cases C-15/91 and C-108/91.

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Judgment of 24 November 1992, Buckl and others / Commission (C-15/91 and C-108/91, ECR 1992 p. I-6061) ECLI:EU:C:1992:454

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Josef Buckl & Söhne OHG and others v Commission of the European Communities.

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Keywords

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1. Actions against Community institutions for failure to act ° Omission remedied after the bringing of the action ° Subject-matter of the action ceasing to exist ° No need to give a decision

(EEC Treaty, Arts 175 and 176)

2. Actions for annulment of measures ° Natural or legal persons ° Measures of direct and individual concern to them ° Refusal by the Commission to re-establish the import levy on certain agricultural products benefiting from the system of generalized preferences ° Refusal to adopt a measure of general application ° Inadmissible

(EEC Treaty, Art. 173, second para.)

Summary

1. The remedy provided for in Article 175 of the Treaty is founded on the premise that the wrongful failure to act on the part of the institution in question 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.

In a case where the act whose absence constitutes the subject-matter of the proceedings is adopted after the action is 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 of the Treaty. 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, so that there is no longer any need for the Court to give a decision.

The fact that the position adopted by the institution does not satisfy the applicant is of no relevance in this respect, since 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 other than that desired or considered necessary by the persons concerned.

2. In the examination of the admissibility of an action for the annulment of a rejection decision taken by an institution, that decision must be appraised in the light of the nature of the request to which it constitutes a reply.

An action for annulment brought by an individual against a rejection decision is inadmissible if it is directed against the refusal to adopt a regulation of general application.

A regulation re-establishing completely the levies on certain imports of ducks and geese which benefit from the system of generalized preferences would concern the importers, breeders and all slaughterhouses without distinction. A trader in that sector who cannot claim that he would be individually concerned by such a regulation is thus not entitled to challenge the refusal to adopt it by means of an action for annulment.

That reasoning is not affected by the fact that in the context of anti-dumping measures complainants are in certain cases entitled to bring an action for annulment against a refusal by the Commission to institute an anti-dumping procedure, since that right is acknowledged only in view of the special nature of the legal position granted to them in the relevant basic regulations. No corresponding protection for Community producers was introduced in the context of the common organization of the market in poultrymeat.

Parties

In Joined Cases C-15/91 and C-108/91,

Josef Buckl & Soehne OHG, a partnership established under German law, whose registered office is at Wassertruedingen (Germany),

Nordmark Gefluegel Erzeugergemeinschaft GmbH, a company incorporated under German law, whose registered office is at Heeslingen (Germany),

Georg Stolle GmbH & Co. KG, a limited partnership established under German law, whose registered office is at Visbek (Germany),

Gefluegelzucht Wichmann GmbH & Co. KG Gefluegelschlachterei, a limited partnership established under German law, whose registered office is at Wachenroth (Germany),

all represented by Juergen Guendisch, Rechtsanwalt, Hamburg, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 8-10 Rue Mathias Hardt,

applicants,

v

Commission of the European Communities, represented by Dierk Booss, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Roberto Hayder, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for

in Case C-15/91: a declaration that, by failing to re-establish completely the levies on ducks and geese originating in Poland and Hungary which were reduced by 50% by Council Regulation (EEC) No 3899/89, the Commission has infringed the EEC Treaty, Regulation (EEC) No 2777/75 of the Council of 29 October 1975 on the common organization of the market in poultrymeat (OJ 1975 L 282, p. 77) and Council Regulation (EEC) No 3899/89 of 18 December 1989 reducing for 1990 the levies on certain agricultural products originating in developing countries (OJ 1989 L 383, p. 125);

in Case C-108/91: annulment of the Commission' s decision of 18 January 1991 in which it refused the applicants' request to re-establish completely the levies on the import of certain quantities of ducks and geese originating in Poland and Hungary which had been reduced by 50% by Council Regulation (EEC) No 3899/89,

THE COURT,

composed of: O. Due, President, C.N. Kakouris, G.C. Rodríguez Iglesias, M. Zuleeg and J.L. Murray (Presidents of Chambers), G.F. Mancini, R. Joliet, F.A. Schockweiler, J.C. Moitinho de Almeida, F. Grévisse, M. Diez de Velasco, P.J.G. Kapteyn and D.A.O. Edward, Judges,

Advocate General: C. Gulmann,

Registrar: H.A. Ruehl, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 13 May 1992,

after hearing the Opinion of the Advocate General at the sitting on 8 July 1992,

gives the following

Judgment

Grounds

1 By application lodged at the Court Registry on 16 January 1991, Josef Buckl & Soehne OHG, Nordmark Gefluegel Erzeugergemeinschaft GmbH, Georg Stolle GmbH & Co. KG and Gefluegelzucht Wichmann GmbH & Co. KG Gefluegelschlachterei (hereinafter "the applicants") brought an action under the third paragraph of Article 175 of the EEC Treaty for a declaration that the Commission had infringed the EEC Treaty, Regulation (EEC) No 2777/75 of the Council of 29 October 1975 on the common organization of the market in poultrymeat (OJ 1975 L 282, p. 77) and Council Regulation (EEC) No 3899/89 of 18 December 1989 reducing for 1990 the levies on certain agricultural products originating in developing countries (OJ 1989 L 383, p. 125, hereinafter "the Regulation"), by failing to re-establish completely the levies on ducks and geese originating in Poland and Hungary which had been reduced by 50% by the regulation.

2 By application lodged at the Court Registry on 28 March 1991, the same applicants brought an action under the second paragraph of Article 173 of the EEC Treaty for annulment of the Commission' s decision of 18 January 1991 in which it refused the applicants' request to re-establish completely the levies on the import of certain quantities of ducks and geese originating in Poland and Hungary which had been reduced by 50% by the Regulation.

3 The Regulation, which was adopted as part of the system of generalized preferences, is intended in particular to encourage economic development in Hungary and Poland. To that end, Articles 1 and 2 of the Regulation provide for a reduction by 50% of the levies on the import of various products from those countries, including ducks and geese, subject to certain maximum quantities, from 1 January to 31 December 1990.

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."

5 In that connection, Article 5 provides inter alia that "in order to apply Article 4, the Commission may decide, by adopting a regulation, to re-establish the normal levy for a given period".

6 The applicants, who operate duck and geese slaughterhouses in Germany, consider that the reduction of the levy in 1990 brought about a fall in prices for ducks and geese imported into Germany and also, as a consequence of competition, for ducks and geese raised there. Moreover, production of duck meat in Germany had also fallen as a result of the large scale cheap imports from Hungary and Poland.

7 The applicants initially made various approaches to the German authorities and the Commission, pointing out that they were suffering considerable damage. On 26 September 1990 they then submitted a request to the Commission to re-establish completely the levies on ducks and geese from Hungary and Poland, referring to Article 4 of the regulation.

8 Since the Commission did not reply to that letter, the applicants brought an action for failure to act (Case C-15/91).

9 Two days after that action was brought, the Director-General of Agriculture, in a letter of 18 January 1991, rejected the request of 26 September 1990 on the grounds that the weakness in the duck market in Germany in 1990 was attributable not to the reduction of levies on ducks and geese from Hungary and Poland but inter alia to the increase in production in the Community in 1989, supplies from the territory of the former German Democratic Republic and increased imports from other Member States and from non-member countries other than Hungary and Poland. Furthermore, for reasons of trade policy it had not been possible to suspend the concessions granted to those two countries.

10 The applicants thereupon brought an action under the second paragraph of Article 173 of the EEC Treaty for annulment of the said letter (Case C-108/91).

11 The Commission objected, under the first paragraph of Article 91(1) of the Rules of Procedure, that both the action for failure to act and the action for annulment were inadmissible, and applied to the Court for a preliminary decision on this point.

12 Reference is made to the Report for the Hearing for a fuller account of the relevant legislation, the facts of the case, the procedure and the pleas and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

Admissibility of the action for failure to act (Case C-15/91)

13 In support of its objection that the action is inadmissible, the Commission argues that under Article 5(1) of the Regulation complete re-establishment of the levy on ducks and geese originating in Hungary and Poland could only be effected in the form of a regulation. Such a regulation could not be described, by reason either of its form or legal nature, as an act which could be addressed to natural or legal persons within the meaning of the third paragraph of Article 175 of the EEC Treaty. Such persons could in any event not be regarded as directly and individually concerned.

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.

18 It must therefore be held that there is no longer any need for the Court to give a decision in the action for failure to act.

Admissibility of the action for annulment (Case C-108/91)

19 In support of its objection that the action is inadmissible, the Commission argues firstly that an action for annulment must be held to be inadmissible if an action for failure to act is still pending, since the applicants have no legal interest in acting so long as the Court is still examining whether their complaint that the Commission has not reacted to their request for re-establishment of the levies is justified.

20 That argument cannot be accepted, as the Commission has defined its position in this case, and the lawfulness of that position can be challenged only in an action for annulment.

21 The Commission further argues that the action for annulment is inadmissible on the ground that its decision not to re-establish completely the levies in question was not of direct and individual concern to the applicants within the meaning of the second paragraph of Article 173 of the EEC Treaty.

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.

23 In a letter of 26 September 1990 the applicants requested the complete re-establishment of the levy on ducks and geese. Article 5 of the Regulation provides that such re-establishment can only be effected by means of a regulation.

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).

26 A regulation which re-established completely the levies on imports would concern importers of ducks and geese, breeders of ducks and geese and all poultry slaughterhouses without distinction. The applicants are therefore, in accordance with the purpose of the Regulation, affected only in their objective capacity as traders in the duck and goose slaughtering sector, in the same way as any other trader carrying on the same business.

27 It is thus clear that the measure sought by the applicants would be one of general application.

28 The applicants argued, however, that their position was analogous to that of traders faced with a regulation introducing anti-dumping duties, and that the Court had in its judgments in that field accepted that individuals have the right to seek the annulment of regulations. They maintained in particular that the Commission' s obligation to undertake investigations in the anti-dumping sphere corresponded to its obligation under Article 4 of the Regulation to ascertain whether serious injury was being caused or threatened to be caused to Community producers. The applicants state in this connection that they themselves had informed the Commission of the injury being caused to them and that the Commission should therefore, in carrying out its investigations, have referred to their sale prices. Both the anti-dumping rules and Article 4 of the Regulation imposed an obligation on the Commission to take protective measures in favour of Community producers who suffered injury. Natural or legal persons must therefore be able to take legal proceedings against a decision refusing them protection.

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).

30 No corresponding protection for Community producers was introduced in the context of the regulation at issue in the present proceedings. The applicants have therefore no ground for claiming to be entitled to the same judicial protection as that given to complainants in an anti-dumping procedure.

31 In the light of the above considerations, the action for annulment must be dismissed as inadmissible.

Decision on costs

Costs

32 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party' s pleadings. Article 69(3) provides that the Court may order that the costs be shared or that the parties bear their own costs where the circumstances are exceptional. Finally, under Article 69(6), where a case does not proceed to judgment the costs are at the discretion of the Court.

33 In the present case the applicants have been unsuccessful in their action for annulment. On the other hand, although the Court has found that in view of the Commission' s response there is no need to give a decision in the proceedings for failure to act, account should be taken of the fact that that response came only after expiry of the period provided for in the Treaty and after proceedings had been brought, with the result that the applicants incurred unnecessary costs in respect of those proceedings.

34 The costs should therefore be shared, and each party ordered to bear its own costs.

Operative part

On those grounds,

THE COURT

hereby:

1. Declares that there is no need to give a decision in Case C-15/91;

2. Dismisses the application in Case C-108/91 as inadmissible;

3. Orders the parties to bear their own costs.

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