IN exercising its judicial control the Court is to (i) secure the legality and 'constitutionality' of the administration and quasi-legislature; and (ii) protect the interests of the parties. To do justice to these objectives the Court has been developing a delicate balance between the Community requirements and the interests of the Member States and private parties. The pursuance of the first objective is evident in the somewhat reserved policy of the Court in using its inquisitorial powers.1 The common Rules of Procedure which regulate the procedure of the different jurisdictions of the Court contain no explicit general provisions which would indicate the circumstances under which the Court could exercise these powers.2 To clarify this question the type of jurisdiction in which the Court could undertake an examination ex officio must first be determined. The Court should, and actually to some extent does, use its inquisitorial powers when it controls the legality of administration. An appeal for annulment or against inaction opens a public procedure which by its very nature is governed by the inquisitorial principle.3____________________
Rules of Procedure, Arts. 47, s. 1, 77, 94.
According to the Rules of Procedure, Art. 77, para. 1, the plaintiff may withdraw his action until the Court renders its decision, provided the other party to the dispute agrees. Significantly, however, Art. 77, para. 2 explicitly precludes the application of this provision to an appeal for annulment or against inaction - as if indicating that if a party lodges an appeal, the subsequent procedure and judgment becomes of public interest. Despite this provision the Court accepted a partial withdrawal of an appeal for annulment, see Judgments Nos. 16-18/59 ( Geitling c. Hohe Behörde) 6Sammlung47, at p. 65 ( 1960).
This inquisitorial principle is also shown by the Rules of Procedure Art. 94 according to which the plaintif may request judgment by default if the defendant did not submit his replique in due time. But before rendering such a judgment the Court must examine whether the appeal was properly raised and whether it was admissible.