1.The Council, a defendant, (applicant with regard to the preliminary objection) points out that the action prescribed by the second paragraph of Article 175 is admissible only if the Community institution, after having been called upon to act, has not defined its position within two months of being so called upon. The Council, given notice to replace the existing system by ‘a scheme of a Community nature’ replied within the time limit allowed that ‘the existing system was in conformity with the Treaty’. These words constitute without dispute a definition of its position. The case law of the Court is clear on this matter: judgments of 1 March 1966(Lütticke v Commission,48/65, Rec. 1966, 1, p. 28-40) and 8 March 1972(Nordgetreide v Commission,42/71 Rec. 1972, 2, p. 105-110).A second preliminary objection relating to inadmissiblity arises from the fact that an action for failure to act against a Community institution can only relate to the adoption of an act which must be addressed to the person bringing the action. But, the regulation which the applicant called upon the Council to enact has not that character. This question was dealt with in Case 15/71, Mackprang v Commission (26 October 1971, Rec. 1971, p. 797). The act called for in the applicant's ‘request’ would be as general in character as the decision whose adoption, according to the Mackprang judgment, cannot be obtained by means of an action for failure to act.The applicant's request to ‘enact a regulation’ suffices to show that the act requested is not of the type envisaged in the third paragraph of Article 175 of the Treaty, namely a measure ut singuli in favour of the applicant, but a ‘policy decision’ which would set up a ‘scheme of a Community character’ from which all the oil mills in the Community would benefit ‘according to their distance from the production areas.’In order to cast doubt on the general character of the Council's Regulation, the applicant had attempted to demonstrate subsequently that it was directly concerned because, if the Regulation was extended to all the Community oil mills, it would have a direct right to benefit from the subsidy and that it was individually concerned by the particularly disadvantageous situation which it shared with only six of the German oil mills. The Council points out a paradox: the applicant calls upon the Council to adopt an act having a general scope in order to satisfy interests which the applicant itself recognizes to be individual.Admittedly, the Court had never decided the question of the admissibility of an action for failure to act in the case of an act enacted in the form of a regulation but of direct and individual concern to the applicant (the Mackprang judgment concerned a decision addressed to all the Member States). On the other hand, it has on many occassions given judgment on the admissibility of an action for annulment (second paragraph of Article 173) with regard to a regulation whose general character was questioned.One would be justified in transposing this case law to the present case on the footing that a natural or legal person cannot, by an action for failure to act, require a Community institution to enact an act which, by reason of its general character, could not be the subject of an action for annulment.In Judgment 106 and 107/63 (Rec. 1965, p. 525-533), the Court had declared the action admissible because the number and the individuality of those concerned was determined ne varietur and could no longer be altered, but in the case of permanent legislation the Court did not accept that it could be considered as of direct and individual concern to the applicants if in the future new persons could claim to join the initial beneficiaries of the legislation (Judgment 6/68, Rec. 1968, p. 596).In this case the creation of new legislation relating to subsidies for the crushing of colza and rape seed would amount in fact to a major revision of the existing system. This revision would itself be of a general legislative nature, for the Council would have to examine the position of the Community market as a whole and legislate accordingly on the basis of general and abstract data. This legislation, by applying according to an abstract criterion, namely the crushing of colza and rape seed and the distance from the production areas, would apply to situations determined objectively, and the beneficiaries, who at present number seven in the Land of North Rhine-Westphalia, could see their circle enlarged in the future.The applicant thus wishes to see the Court compel the Council to commit an abuse of law and a misuse of procedure by establishing, in the form of a regulation, a ‘false regulation’ which would in reality be an individual decision.The Council finally points out that the applicant, by indicating that its action can be considered as one for annulment, is rendering the object of its claim ambiguous. But as this new description of the action does not appear in the conclusions it is inadmissible. Moreover, it applies to the Council's reply, which is not an act having a legal effect but whose sole aim is to confirm the validity of the regulations relating to the additional subsidy. Besides, the applicant does not ask for the suppression of the subsidy in question but only its extention, a fact which proves that its application for annulment is contradictory.
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