Judgment_paragraph 1. · Oswald Schmidt, trading as Demo-Studio Schmidt, v Commission of the European Communities (210/81)

1.The Commission of the European Communities, the defendant, considers the application to be partially inadmissible.According to the Commission, it is apparent from the terms of the application that the applicant seeks, on the basis of the second paragraph of Article 173 of the EEC Treaty, a declaration that the “communication” (“Bescheid”) from the Commission rejecting his complaint is void and seeks in addition an order to the Commission to reconsider his complaint.According to the Commission, the primary purpose of the application, namely a declaration that its decision on the applicant's complaint is void, is admissible in so far as such a “notice” or “communication” (“Bescheid”), being final and accompanied by a detailed statement of the legal grounds on which it is based, may be contested under the second paragraph of Article 173 of the EEC Treaty. However, the Commission considers the application unfounded in that respect.However, the Commission states that it leaves it to the Court to assess to what extent the applicant really has an interest in taking legal proceedings, in view of the fact he is not the victim of discrimination arising from the application of Revox's selective distribution system, that it cannot be considered that the provisions of the Revox EEC agreement are contrary to Article 85 (1) of the Treaty and that, even it it were admitted that there was an infringement, it is not within the power of the Commission either to compel an undertaking to supply a purchaser or to bring to an end infringements which were committed in the past and have since ceased. In consequence, according to the Commission, the admissibility of this action is dubious, by reason of the absence of an interest in taking legal proceedings.As regards the second purpose of the application — namely to compel the Commission to reconsider the applicant's complaint — the Commission considers it inadmissible. It is clear from well-established case-law of the Court that a judgment upholding an application for a declaration that a measure is void may result in the nullity of the measure but the Court cannot prescribe the measures to be adopted by the institution from which the annulled measure emanated for the implementation of its judgment (judgment of 20 March 1957 in Case 2/56 Mining undertakings of the Ruhr Basin [1957 and 1958] ECR 3; judgment of 23 February 1961 in Case 30/59 De Gezamenlijke Steenkolenmijnen in Limburg [1961] ECR 1; judgment of 22 March 1961 in Joined Cases 42 and 49/59 Société Nouvelle des Usines de Pon titene — Aciéries du Temple [1961] ECR 53). Admittedly, the Commission is required under Article 176 of the Treaty to adopt the necessary measures to comply with the judgment. However, the Commission has a discretion in that regard and specific measures may not be imposed upon it. At the most, the person concerned would be entitled to bring an action against the Commission for its failure to act or for a declaration that a measure was void if he considered that the Commission had not fully complied with the judgment. It is therefore incorrect to say that if the judgment of the Court in this case declared the contested measure void it would create a legal hiatus obliging the Commission to reconsider the applicant's complaint. The Commission further states that the applicant's action is inadmissible in so far as its purpose — to secure the adoption of a measure — although envisaged by German administrative law is unknown to the Community system of legal protection as provided for, in particular, by Articles 173 and 176 of the EEC Treaty.

Oswald Schmidt, trading as Demo-Studio Schmidt, v Commission of the European Communities (210/81)

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