Judgment_paragraph 2. · Spijker Kwasten BV v Commission of the European Communities (231/82)

2.Spijker Kwasten B V states in the first place that Article 173 of the Treaty is intended to provide effective legal protection for interests affected, by any specific measure adopted by the Commission which is illegal. Therefore the provision is not to be interpreted restrictively.Spijker Kwasten goes on to refute the Commission's argument that it is not directly and individually concerned.In that connection it contends in the first place that the decision is of individual concern to it. On the one hand, the request for authorization made by the Netherlands was made in connection with a consignment imported by Spijker Kwasten. On the other hand, the decision affects only the applicant's position as it is the sole trader-importer established in the Benelux States which regularly imports into the Netherlands from the People's Republic of China.The judgment of 2 July 1964 in Case 1/64 Glucoseries Réunies [1964] ECR 413 is not relevant to the present case. It is true that in that judgment the Court rejected as inadmissible an application for the annulment of a decision to impose a countervailing charge on the importation of goods. Yet it is clear from the grounds of the judgment that, by contrast with the present case, the decision in question was intended to cover imports from the whole of the Community and was not therefore limited to imports from a single Member State.On the other hand, the jugdments of 1 July 1965 Qoined Cases 106 and 107/63 Toepfer [1965] ECR 405) and of 23 November 1971 (Case 62/70 Bock [1971] ECR 897) show that an action brought against an authorization to take protective measures fulfils the requirement that the applicant must be individually concerned, at least where the Commission might have known that the legal position of certain persons forming part of a group which is defined in general and abstract terms would be particularly affected. Whilst admitting that the Netherlands authorities have in fact issued an import licence to it in respect of the consignment of brushes in question, the applicant contends that the decision is expressly directed against it.With regard to the requirement that the decision must be of direct concern to it, the applicant states that the Court's case-law has moved away from a purely formal approach and now places more emphasis on consideration of the material effect of the decision on the legal position of the person concerned. According to the latter approach a Community measure is of direct and material concern to the person in question as soon as it has been adopted — even if a national measure is still needed to implement it — circumstances such that it is possible to determine with almost total certainty that the measure will affect the interests and legal position of a specific person.That proposition is particularly valid in the present case since the legal protection afforded to Spijker Kwasten within the framework of an action in the national court is insufficient. In that connection the applicant states that two questions are raised in the present case: one is whether the rules concerning national commercial policy really are threatened and the other is whether less wideranging protective measures might suffice. Those questions cannot be referred to the Court for a preliminary ruling by the national court before which an action has been brought against a decision refusing to grant an import licence.