Gilberto Borromeo Arese and others v Commission of the European Communities (6/70)

I —Summary of the facts

II —Conclusions of the parties

The applicants in their application claim that the Court should:— after finding that Italy has infringed the rules contained in Articles 101 and 102 of the EEC Treaty and in the decision of the Council of the EEC of 4 December 1962, as regards the procedure followed in drawing up the national law, and Article 3 (d), the first paragraph of Article 31 and Articles 40 (2), 44, 46 and 92 of the EEC Treaty in respect of the content of the said law, declare that by failing to take the decision sought with regard to them the defendant Commission has infringed the third indent of Article 155 of the EEC Treaty;— order the defendant to pay the costs.The defendant, in a statement in connexion with a procedural issue lodged on 26 April 1970, contends that the Court should:— give a preliminary ruling, without discussing the substance of the case, on the admissibility of the application under Article 91 of the Rules of Procedure;— declare the application to be inadmissible and consequently dismiss it;— order the applicants to pay the costs.In a document lodged at the Registry on 12 May 1970 under Article 91 (2) of the Rules of Procedure the applicants stated that :‘if the Court were to consider the interlocutory declaration [of the non-conformity to the Treaty of the draft law in dispute] unnecessary for the purpose of its decision and on the contrary to consider that the request is capable of leading to the inadmissibility of the application, the applicants amend their conclusions by withdrawing the request concerning the interlocutory declaration of an infringement by the Italian State of its obligations under the Treaty and restricting themselves to seeking a declaration that the Commission has infringed the third indent of Article 155 of the Treaty by reason of the fact that it failed to issue the decision sought in respect of the applicants’.

III —Procedure

IV —Submissions and arguments of the parties

In their application the applicants make the following points in particular:They are the owners of agricultural land situated in the provinces of Milan and Pavia, which is leased.This application is admissible; in fact, by their letter of 5 November 1969 the applicants in vain requested the Commission to take a concrete decision in respect of them.The application is also well founded, for the following reasons in particular:— If the draft law in question were to attain the force of law, the applicants would be obliged to enter into contracts with their tenants in terms taking into account not the productivity of the agricultural land leased or the actual income arising from it but ‘values agreed for taxation purposes, reassessed on the basis of a fixed coefficient’. Contrary to what the position is in the other Member States, the rules envisaged ignore ‘the necessity for remunerating landed capital on the basis of its real nature in a free market system’. Because of this, the price of agricultural products obtained from the said properties is distorted, in defiance — as the applicants point out in detail — of a whole series of Community provisions.— The defendant is therefore obliged either to call upon the Italian State to adopt rules conforming to the EEC Treaty or to take a decision indicating to the applicants what course of conduct they must follow in order to observe both the national legislation and the Community rules.The defendant, in its statement in connexion with the procedural issue, puts forward the following considerations in particular:A declaration of the non-observance by a Member State of its Community obligations may only be made at the request of the Commission or of another Member State. Individuals do not have the capacity to seek such a declaration, even by means of an action for failure to act. The only remedy open to them for opposing the illegal measures of States is to raise such illegality before the national court, on condition of course that the Community provisions alleged to have been infringed are directly applicable within the meaning attributed to those words in the case-law of the Court.There is no failure to act on the part of the defendant, as it defined its position in its letter of 22 December 1969.There is no Community provision obliging the defendant to take the individual decision sought in respect of the applicants.Finally, it is impossible at present to be aware of all the amendments which might be made to the draft law or to know how and when it will be promulgated.In their statement lodged on 21 May 1970, the applicants replied in particular as follows:They had supposed that in order to assess whether or not the defendant was obliged to indicate the course of conduct to be followed by the applicants when entering into leases the Court would logically be led to examine first of all whether or not the disputed draft law conformed to the Treaty.In the event of this line of reasoning being erroneous, the applicants state that they amend their conclusions as indicated above under II at the end thereof.The letter of 22 December 1969 does not constitute a definition of the Commission's attitude, or even a decision, but merely an interim reply. This interpretation is confirmed by the letter of 12 March 1970.The defendant's duty to adopt the individual decision sought arises from Article 155 of the Treaty, which charges the Commission with the task of watching over the conduct of all those subject to Community law, both States and individuals.