P.26
IN A LETTER DATED 15 MARCH 1965, THE APPLICANTS MADE AN APPLICATION TO THE COMMISSION ON THE BASIS OF ARTICLE 175 OF THE TREATY .
THE APPLICANTS REQUESTED THAT THE COMMISSION TAKE A DECISION (' BESCHLUSS ') TO THE EFFECT THAT, AS FROM 1 JANUARY 1962, THE IMPOSITION BY THE FEDERAL REPUBLIC OF GERMANY OF A TURNOVER EQUALIZATION TAX OF 4 PER CENT ON THE IMPORTATION OF POWDERED MILK AND OTHER DRIED MILK PRODUCTS IS AN INFRINGEMENT OF ARTICLE 95 OF THE TREATY AND THAT IT SHOULD DECIDE (' BESCHLIESSEN ') TO INITIATE AGAINST THE FEDERAL REPUBLIC THE PROCEDURE LAID DOWN IN ARTICLE 169 AND INFORM THE APPLICANTS OF THE DECISIONS (' BESCHLUESSE ') ADOPTED .
P.27
AFTER CONSIDERING THIS REQUEST, THE COMMISSION INFORMED THE APPLICANTS IN A LETTER DATED 14 MAY 1965 THAT IT DID NOT SHARE THEIR OPINION THAT THE SAID TURNOVER EQUALIZATION TAX CONSTITUTED AN INFRINGEMENT OF ARTICLE 95 OF THE TREATY .
THE APPLICANTS THEN BROUGHT AN APPLICATION UNDER ARTICLE 173 OF THE TREATY FOR THE ANNULMENT OF THIS DEFINITION OF ITS POSITION .
THE DEFENDANT ALLEGES THAT THIS APPLICATION IS INADMISSIBLE ON THE GROUND THAT AN APPLICATION FOR ANNULMENT CANNOT LIE AGAINST THE MEASURE IN QUESTION .
THE OBJECT OF THE REQUEST OF 15 MARCH IS TO SECURE THE INITIATION OF THE PROCEDURE LAID DOWN IN ARTICLE 169 AGAINST A MEMBER STATE AND TO COMPEL THE COMMISSION TO TAKE THE MEASURES IMPLIED BY THAT ARTICLE .
THE OBJECT OF THE PROCEDURE UNDER ARTICLE 169 IS TO PREVENT MEMBER STATES FROM FAILING IN THEIR OBLIGATIONS UNDER THE TREATY .
FOR THIS PURPOSE, THE SAID ARTICLE EMPOWERS THE COMMISSION TO SET IN MOTION A PROCEDURE WHICH MAY LEAD TO AN ACTION BEFORE THE COURT OF JUSTICE TO DETERMINE THE EXISTENCE OF SUCH A FAILURE BY A MEMBER STATE; UNDER THE TERMS OF ARTICLE 171 OF THE TREATY THE STATE CONCERNED WOULD THEN BE REQUIRED TO TAKE THE NECESSARY MEASURES TO COMPLY WITH THE JUDGMENT OF THE COURT .
THE PART OF THE PROCEDURE WHICH PRECEDES REFERENCE OF THE MATTER TO THE COURT CONSTITUTES AN ADMINISTRATIVE STAGE INTENDED TO GIVE THE MEMBER STATE CONCERNED THE OPPORTUNITY OF CONFORMING WITH THE TREATY . DURING THIS STAGE, THE COMMISSION MAKES KNOWN ITS VIEW BY WAY OF AN OPINION ONLY AFTER GIVING THE MEMBER STATE CONCERNED THE OPPORTUNITY TO SUBMIT ITS OBSERVATIONS .
NO MEASURE TAKEN BY THE COMMISSION DURING THIS STAGE HAS ANY BINDING FORCE . CONSEQUENTLY, AN APPLICATION FOR THE ANNULMENT OF THE MEASURE BY WHICH THE COMMISSION ARRIVED AT A DECISION ON THE APPLICATION IS INADMISSIBLE .
IN THEIR ALTERNATIVE CONCLUSIONS THE APPLICANTS COMPLAIN OF FAILURE TO ACT UNDER ARTICLE 175 .
THE DEFENDANT CLAIMS THAT THE ALTERNATIVE APPLICATION IS ALSO INADMISSIBLE .
UNDER THE TERMS OF THE SECOND PARAGRAPH OF ARTICLE 175, PROCEEDINGS FOR FAILURE TO ACT MAY ONLY BE BROUGHT IF AT THE END OF A PERIOD OF TWO MONTHS FROM BEING CALLED UPON TO ACT THE INSTITUTION HAS NOT DEFINED ITS POSITION .
IT IS ESTABLISHED THAT THE COMMISSION HAS DEFINED ITS POSITION AND HAS NOTIFIED THIS POSITION TO THE APPLICANTS WITHIN THE PRESCRIBED PERIOD .
THE PLEA OF INADMISSIBILITY IS THEREFORE WELL FOUNDED .
UNDER THE TERMS OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
AS THE APPLICATION OF THE APPLICANTS IS INADMISSIBLE, THEY MUST BE ORDERED TO PAY THE COSTS .
THE COURT
HEREBY :
1 . DISMISSES APPLICATION 48/65 AS INADMISSIBLE;
2 . ORDERS THE APPLICANTS TO PAY THE COSTS OF THE ACTION .
