Judgment — ECLI:EU:T:2005:432
Date: 2005-11-30
Language of the case: Italian
Court formation: Second Chamber
Based on: Treaty establishing the European Atomic Energy Community (1957)
Subject matter: Non-contractual liability
Concepts: Actions for damages
Procedure: Action for damages - unfounded;Action for damages - inadmissible;Application for measures of inquiry - unfounded
Origin: Italy

summary of the pleas advanced. 28 According to the Commission, it follows from the case-law that the information contained in the application must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. The case-law also states that for an action to be admissible, the basic legal and factual particulars relied on must be indicated, at least in summary form, coherently and intelligibly in the text of the application itself (see the order of the Court of First Instance in Case T-53/96 Syndicat des producteurs de viande bovine and Others v Commission [1996] ECR II-1579, paragraph 21, and the case-law cited). In order to satisfy those requirements, an application seeking compensation for damage allegedly caused by a Community institution must state the evidence from which the conduct alleged against the institution can be identified, the reasons for which the applicant considers that there is a causal link between the conduct and the damage allegedly suffered, and the nature and extent of that damage (see Joined Cases T‑79/96, T-260/97 and T-117/98 Camar and Tico v Commission and Council [2000] ECR II-2193, paragraph 181, and the case-law cited). The [2000[ 29 In the present case, the Commission submits that the requisite clarity and precision are completely lacking in the applicant’s pleadings. In that respect, the Commission asserts that it is unable to infer from the applicant’s pleadings the conduct alleged against the Centre. That lack of precision and those lacunae make it impossible for the Commission to prepare its defence thoroughly, and for the Court to rule on the facts of the case. 30 Moreover, the Commission submits, in essence, that the applicant’s pleadings contain no evidence that the alleged damage was actually sustained, nor even a provisional assessment of that damage. 31 Finally, the applicant merely draws a general link between the flooding of its building and the overflow of the drain in question without giving any explanation as to how that event occurred and without supplying any information on the reasons which lead it to locate the origin of the overflow precisely in the third section of the drain. 32 The Commission adds that the measures of inquiry requested by the applicant cannot remedy the lack of precision of the latter’s pleadings. 33 The applicant submits, in essence, that the subject-matter of the proceedings and the summary of the pleas in law were duly stated in its pleadings and that, consequently, the action satisfies the conditions laid down by Article 44(1)(c) of the Rules of Procedure. It adds that it was not obliged to supply technical explanations concerning the event by which it was adversely affected. Moreover, the applicant asserts, in essence, that the request made to the Court for measures of inquiry will make it possible to ascertain whether its claims are true. Findings of the Court 34 Under Article 44(1)(c) of the Rules of Procedure, every application must state the subject-matter of the proceedings and contain a summary of the pleas in law on which it is based. 35 That requirement was made clear by the case-law relied on by the Commission in paragraph 28 above. 36 In the present case, it is sufficiently clear from the application that the applicant alleges, in essence, first, that the Commission refused to grant it access to the third section of the drain to assess its condition and to ascertain why the drain overflowed and, second, that it failed to carry out maintenance and work on the third section of the drain in order to prevent or avert overflows. 37 However, as regards, first, the refusal of access to the third section of the drain, in the absence of any claim for damage or any claim for compensation arising from that refusal, the complaint based on that refusal should be treated in the same way as the request for measures of inquiry relating to an on-site visit. That claim must therefore be considered in connection with the examination of the measures of inquiry (see paragraphs 99 and 100 below). 38 As regards, second, the alleged failure to maintain and carry out work on the third section of the drain, the applicant states in its application that that failure caused flooding to its property and it seeks compensation for the damage caused to various parts of its establishment and to goods which it summarily identifies in the application. It must therefore be considered that, as regards the evidence of the damage allegedly caused by the failure to carry out maintenance and work on the third section of the drain, the action satisfies the requirements of Article 44(1)(c) of the Rules of Procedure. 39 The applicant also seeks compensation for pecuniary damage to be suffered and for non-pecuniary damage suffered or to be suffered, without providing any evidence whatsoever which would make it possible to assess their nature and extent. That evidence of the damage does not therefore satisfy the requirement laid down by Article 44(1)(c) of the Rules of Procedure, as made clear by the case-law referred to in paragraph 28 above. 40 In those circumstances, the action must be held to be admissible in so far as it seeks compensation for the damage allegedly caused to the various goods, which are summarily identified in the application, by the alleged failure to carry out maintenance and work on the third section of the drain. Substance Preliminary observations 41 It must be recalled that, as follows from the case-law, the Community’s non-contractual liability under the second paragraph of Article 188 EA and the exercise of the right to compensation for damage suffered are subject to a set of conditions as regards the unlawfulness of the conduct alleged against the Community institution, the fact of damage and the existence of a causal link between the conduct and the damage complained of (see Case C-308/87 Grifoni v EAEC [1990] ECR I-1203, paragraph 6, and the case-law cited). 42 In that respect, only measures or conduct attributable to a Community institution or body may give rise to liability on the part of the Community (see, to that effect, Case 118/83 CMC and Others v Commission [1985] ECR 2325, paragraph 31, and Case C-234/02 P Ombudsman v Lamberts [2004] ECR I-2803, paragraph 59). 43 If any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions (see Case T-170/00 Förde-Reederei v Counciland Commission [2002] ECR II-515, paragraph 37, and the case-law cited). 44 It is in the light of those considerations that the parties’ arguments as to whether the Commission has incurred liability must be examined. Arguments of the parties 45 The applicant complains that the Commission and/or the Centre failed to carry out the necessary maintenance and/or work on the third section of the drain in order to prevent or avert repeated overflowing of the drain in question, despite the clear danger that it posed owing to its insufficient drainage capacity, which the Commission had been aware of since the drain overflowed in 1992. The applicant’s damage is attributable to the fact that the third section of the drain has insufficient capacity to absorb all the water from the second section (see paragraph 12 above). 46 Several factors demonstrate that that conduct may be imputed to the Commission and/or the Centre. 47 First of all, the third section of the drain situated on the land on which the Centre is built is at the sole disposal of the latter and is inaccessible to third parties on the ground that, under Article 1 of Annex F to the JRC Agreement, that land is inviolable, exempt from search and confiscation, and free from any administrative or legal measure of constraint. 48 Moreover, it is clear that the Centre, through its officials and its technicians, has always been responsible for the maintenance of the distribution facilities and for repair of damage to the section of the drain situated on the land of the Centre, and it is for the Commission to establish the contrary. 49 Finally, the applicant relies on a statement by the head of the Ufficio tecnico comunale (Municipal Technical Department, ‘the UTC of Ispra’), dated 16 March 1999, according to which the municipal administration is not responsible for the maintenance and management of the third section of the drain, as it is situated on the property of the Centre. 50 First, the unlawfulness of the conduct alleged is based on the fact that it constitutes an infringement of the obligation laid down by Article 9(3) of Decision 96/282, according to which the Director-General of the Centre, on behalf of the Commission, is to take all measures necessary to ensure the safety of persons and installations for which he is responsible. Despite what the Commission asserts, that provision applies to this case, since the Centre’s waste water discharge installations are connected with the infrastructure placed under its exclusive control and, therefore, with the performance of its institutional function and of its activities. Moreover, the Community has already been found liable for failure to fulfil its obligations under Article 10(3) of Commission Decision 71/57/Euratom of 13 January 1971 on the reorganisation of the Centre (OJ 1971 L 16, p. 14), the content of which is analogous to that of Article 9(3) of Decision 96/282 (Case C‑308/87 Grifoni v EAEC [1994] ECR I-341). 51 Second, the unlawfulness of the conduct at issue stems from its inconsistency with the JRC Agreement, which is intended, in particular, to preserve and safeguard the public safety of the population in the vicinity of the Centre’s installations. 52 Third, the unlawfulness of the conduct alleged stems from Articles 2043 and 2051 of the Italian Civil Code which applies in the present case, since the second paragraph of Article 188 EA, despite its reference to the general principles common to the laws of the Member States, does not rule out the possibility of relying on infringement of specific rules of Italian law (see, to that effect, the Opinion of Advocate General Tesauro in Grifoni, paragraph 41 above, [1990] ECR I-1212, point 17). 53 Thus, on the one hand, Article 2043 of the Italian Civil Code lays down the principle of neminem laedere (inflict no damage on another), which is common to the laws of the Member States and should apply in this case because of the infringement by the Commission and/or the Centre of the general principle of prudence and due diligence. 54 On the other hand, the conduct alleged renders the Commission liable under Article 2051 of the Italian Civil Code which lays down a simple presumption of wrongful conduct on the part of the person who has care of an object. In this case, the Centre has care of the third section of the drain on the ground that it is at its sole disposal since it is ancillary to a piece of land which it owns and which enjoys immunity. 55 The applicant adds that the case-law of the Corte suprema di cassazione (the Italian Supreme Court of Cassation) states that Article 2051 of the Italian Civil Code applies to the public administration in respect of State property or assets which are not generally and directly used by the local authority – as is the case here with the drain – which make possible, on account of their limited territorial extent, supervision and monitoring by the body appointed for that purpose. 56 The Commission submits, first, that the Centre does not exercise any responsibility whatsoever over the third section of the drain and that, consequently, the failure to carry out maintenance or work on that third section is not attributable to the Commission or to the Centre. 57 In that respect, the Commission submits that Article 3 of Annex F to the JRC Agreement states that the Italian authorities are to make use, at the request of the Commission, of their relevant powers in order to ensure that the Centre receives all necessary public utility services. That article further states that the Commission is to take all appropriate measures to ensure that qualified representatives of the relevant public utility services, duly approved by it, may inspect, repair and maintain the installations connected with those services within the Centre. It is to be inferred from that article that the ‘extraterritoriality of the land (on which the Centre is established) is disregarded’ so as to enable approved technicians to maintain and repair the installations supplying the public utility services. 58 According to the Commission, those provisions of the JRC Agreement are not ‘overruled’, revoked or amended by the content of the statement of the head of the UTC of Ispra, which asserts that the municipal administration is not responsible for the maintenance or management of the drain situated on the land on which the Centre is built. First of all, that statement goes beyond the powers of the head of the UTC of Ispra, who is not empowered to determine the civil liability of the municipal administration of which he is a part. Furthermore, that statement is blatantly inconsistent with the content of the letter of 7 October 1992 referred to in paragraph 16 above, which states that the work carried out by the municipality was an independent initiative for which the municipal administration assumed all liability. Finally, the statement of the head of the UTC of Ispra is not capable of making the Centre responsible for the maintenance of the drain. 59 The relevant provisions of the JRC Agreement cannot further be called in question by the fact that the Centre has sometimes deemed it appropriate to carry out certain work on the installations itself, since that work has always been carried out at the request of the local administration. As regards more specifically the work on the section of the drain situated on the land of the Centre in 1990, that was carried out following a request by the Ferrovie dello Stato and the municipal administration of Ispra. 60 As regards, second, the alleged unlawfulness of the failure to maintain or carry out work on the third section, the Commission asserts that the application merely alleges that failure without specifying either what work or maintenance should have been carried out in the applicant’s view, or, consequently, the nature of the unlawful conduct on the part of the Commission. 61 It adds that none of the provisions relied on by the applicant has been infringed. 62 First of all, it submits that, contrary to the interpretation of Article 9 of Decision 96/282 put forward by the applicant, the obligation of the Director of the Centre provided for by that article to take all measures necessary to ensure the safety of persons and installations for which he is responsible must be limited to the activities specific to the Centre whereby the Community contributes towards carrying out Community research programmes. The management and maintenance of drains situated on the land of the Centre are not part of those specific activities. It does not accept that it is apparent from the judgments in Grifoni v EAEC, paragraphs 41 and 50 above, that the EAEC was found liable under Article 10 of Decision 71/57, which is identical to Article 9 of Decision 96/282. 63 The Commission then asserts that, even if Article 16 of Annex F to the JRC Agreement requires it to adopt specific measures concerning safety and protection of public health, that provision, read in the light of the preamble and the other provisions of the JRC Agreement, concerns specifically the risk of fire and dangers arising from ionising radiations which are not involved in this case. 64 Moreover, it submits that, since no Community institution or body is required to supervise the drain, the Commission cannot be found liable on the basis that its institutions or bodies infringed the most elementary rules of ordinary prudence. In that respect, the Court has already held that an institution cannot be found non-contractually liable in the absence of unlawful conduct (Case T-213/97 Eurocoton and Others v Council [2000] ECR II-3727). 65 According to the Commission, the reliance by the applicant on provisions of Italian civil law is inappropriate. The second paragraph of Article 188 EA refers solely to the general principles common to the laws of the Member States and not to the specific provisions of the various national legal systems (Grifoni v EAEC, paragraph 50 above, paragraph 8). The arguments put forward by the applicant to argue the contrary find no support in the Opinion of Advocate General Tesauro in Grifoni v EAEC, paragraph 52 above. In any event, both the judgment of 3 February 1994 in Grifoni v EAEC, cited above, and the Opinion of Advocate General Tesauro in that judgment (ECR I-343) expressly excluded the possibility of damage suffered being determined and compensated in accordance solely with the Italian legislation on non-contractual liability. 66 It denies that the rule laid down in Article 2051 of the Italian Civil Code, according to which ‘persons are liable for damage caused by objects in their care, unless it can be shown that the damage was caused accidentally’, has been accepted in the framework of Community legislation and case-law. On the contrary, that provision, which makes it possible for a person who is not the immediate cause of the damage to incur liability, is incompatible with the requirements currently imposed by the case-law for the institutions to incur non-contractual liability. 67 In any event, the conditions laid down by Article 2051 of the Italian Civil Code are not satisfied in the present case. First, no Community institution has care of the drain and therefore the Community cannot be called to account for any damage caused by it. Second, the applicant does not establish any causal link between the object which is allegedly in the Community’s care and the damage. It has not been demonstrated that the flooding of the applicant’s establishment was actually caused by the overflow of the particular section of the drain situated on the land of the Centre. Findings of the Court 68 It must first be examined whether, in accordance with the case-law recalled in paragraph 42 above, the conduct alleged, namely the failure to carry out work and/or maintenance on the third section of the drain, is attributable to a Community institution or body. 69 In that respect, it should first be pointed out that, contrary to what the applicant asserts (see paragraph 47 above), it does not follow from the JRC Agreement that the third section of the drain falls within the responsibility of the Community. 70 First of all, the argument that the third section of the drain falls within the responsibility of the Community on account of the fact that it follows from the JRC Agreement that no third party may access that section of the drain is unfounded. 71 It is true, as the applicant states, that, according to Article 1 of Annex F to the JRC Agreement, the Centre and the land on which it is built are inviolable, exempt from search, requisition, confiscation or expropriation, and enjoy immunity from any administrative or legal measure of constraint. However, it follows from Article 3 of Annex F that, notwithstanding that status of immunity, the Commission must allow qualified representatives of the relevant public utility services, duly approved by it, to inspect, repair and maintain the installations connected with those services within the Centre. 72 It is common ground between the parties that the waste water collection service supplied to the Centre through the drain at issue is a public utility service for the purposes of Article 3 of Annex F to the JRC Agreement. In that respect, it must be pointed out that, in response to a written question from the Court of First Instance, the Commission asserted in writing, without being contradicted on that point by the applicant, that the municipality of Ispra was the body responsible for supplying the public utility service of waste water collection to the Centre. Consequently, for the purposes of the present proceedings, it must be considered that responsibility for the inspection, repair and maintenance of the third section of the drain lies with the municipal administration of Ispra, whose qualified representatives, approved by the Commission, may access that section of the drain. 73 Next, it must be pointed out that no other provision of the JRC Agreement could serve as a basis for attributing the conduct alleged to the Community. It is true that Article 1 of the JRC Agreement, which is not even relied on by the applicant, provides, in essence, that the Italian Government is to make available to the Community the Centre and the land on which it is built in return for an annual rent. However, the supply envisaged by that article does not imply that responsibility for the third section of the drain is transferred to the Community. That article must be read in conjunction with the other provisions of the JRC Agreement and, in particular, with Article 3 of Annex F thereto, from which it follows, as was noted at paragraph 72 above, that responsibility for the inspection, repair and maintenance of the third section of the drain lies with the body responsible for supplying the waste water collection service. In those circumstances, Article 1 of the JRC Agreement may not be interpreted as implying that responsibility for the third section of the drain is transferred to the Community. 74 The JRC Agreement cannot therefore serve as a basis for attributing the conduct alleged to the Centre or to any other Community institution or body. 75 Secondly, contrary to what the applicant summarily asserts (see paragraph 47 above), the imputability of the conduct alleged may not be inferred from the fact that the third section of the drain is at the sole disposal of the Centre. The fact remains, as was noted in paragraphs 12 and 14 above, that, overall, the drain, including the third section, collects waste water both from the land of the municipality of Ispra and from the land on which the Centre is built. Moreover, it is evident from the comments in paragraph 72 above that responsibility for carrying out work on the third section of the drain lies with the municipal administration of Ispra. Since the third section of the drain is not at the sole disposal of the Centre, the sole disposal argument pleaded cannot serve as a basis for attributing the conduct alleged to the Community. 76 Third, it is necessary to ascertain whether, as in essence the applicant claims, the alleged failure to carry out maintenance or work on the third section of the drain is attributable to the Community because of the clear conduct of the officials and technicians of the Centre. 77 In that regard, it must be noted that it is common ground that in 1990 the Centre replaced an open pipe with a pipe 100 cm in diameter on the first segment of the third section of the drain. 78 The Commission asserts that the Centre carried out that work at the request of the Ferrovie dello Stato or the municipal administration of Ispra. However, when requested by the Court of First Instance to produce any document capable of establishing that the alleged requests had been made, the Commission failed to do so. In those circumstances, for the purposes of the present proceedings, it must be considered that the Centre carried out work on the first segment of the third section of the drain on its own initiative. 79 Furthermore, at the hearing, the Commission’s expert stated that the services of the Centre inspected the third section of the drain with a degree of regularity. 80 That work carried out by the technical services of the Centre is done so spontaneously and does not constitute an obligation for the Community institutions or bodies under the JRC Agreement. As was noted in paragraph 72 above, under the JRC Agreement, responsibility for the inspection, repair and maintenance of the third section of the drain lies with the body entrusted with supplying the waste water collection service to the Centre. It must therefore be considered that, by carrying out that work, the Centre took upon itself the management of the affairs of another party. 81 However, the fact that the technical services of the Centre managed the affairs of another party by working on its own initiative on various occasions on the third section of the drain in no way implies that any failure to carry out work or maintenance on that section of the drain is henceforth attributable to the Centre and, consequently, to the Community. 82 Such interference has the effect only of requiring the Centre to carry out efficiently the management tasks which it has taken upon itself. Thus, the management which the Centre took upon itself by installing a closed pipe on the first segment of the third section of the drain in 1990 does not extend to performing the work necessary to ensure that, in 2002, the third section of the drain had sufficient discharge capacity, particularly because, as the Commission pointed out at the hearing without being contradicted by the applicant, the Community has no control over the quantity of waste water discharged into that third section. 83 Furthermore, the management which the Centre took upon itself by carrying out, on its own initiative, regular supervision and maintenance of the third section covers only the tasks actually performed by it and cannot extend to the alleged failure to supervise or carry out maintenance, which remains the responsibility of the body charged with supplying the waste water collection service to the Centre. 84 Moreover, in the present case, it is not established or even pleaded that the conduct alleged, namely the failure to carry out maintenance and/or work on the third section of the drain, amounts to improper performance of the management tasks which the Centre took upon itself. 85 Even if it is accepted that, by alleging that the drainage capacity of the third section of the drain was insufficient, the applicant implies that the work performed by the Centre in 1990 amounts to improper management by the Centre of the affairs of another party, it must none the less be considered that the installation of a closed pipe 100 cm in diameter on the first segment of the third section of the drain cannot be regarded as improper performance of the management which the Centre took upon itself. 86 The fact remains that the diameter of the pipe placed by the Centre in the first segment of the third section of the drain is exactly the same as the diameter of the pre-existing closed pipe in the second segment of the third section of the drain. The work performed by the Centre in 1990 did not therefore affect the drainage capacity of the third section of the drain. In those circumstances, the allegedly insufficient drainage capacity of the third section of the drain is not, in any event, attributable to the Centre. 87 It follows from the foregoing that the imputability of the conduct alleged to the Commission cannot stem from the work carried out by the technical services of the Centre on its own initiative. 88 Fourth, it is necessary to ascertain whether the imputability of the conduct alleged to the Commission stems from the statement of the head of the UTC of Ispra by which the latter asserts that the municipal administration of which he is a part is not responsible for working on the third section of the drain. 89 In that regard, irrespective of whether the head of that municipal service is competent to decide on questions of liability concerning the administration of which he is a part, it must be pointed out that his statement deems the municipal administration not to be responsible for the third section of the drain on the sole ground that that section is situated on land belonging to the Community. However, it is clear from Article 1 of the JRC Agreement that the Community does not own the land in question. That article provides in particular that the Centre and the land on which it stands are made available to the Community by the Italian Government in return for an annual rent. Moreover, the applicant does not establish or allege that the statement of the head of the UTC of Ispra has amended the JRC Agreement. In those circumstances, it must be held that that statement is incapable of establishing that the conduct alleged is attributable to a Community institution or body. 90 Fifth, it is also necessary to consider whether the conduct alleged is attributable to the Community on account of provisions which the applicant alleges have been infringed. 91 In that respect, it must first be pointed out that Article 9(3) of Decision 96/282, alleged to have been infringed, merely states that the Director-General of the Centre is required to take all measures necessary to ensure the safety of installations for which he is responsible. That provision cannot therefore of itself serve as a basis for attributing the alleged failure to carry out work and/or maintenance on the third section of the drain without it being established that the section in question is an installation for which the Director‑General of the Centre is responsible. The applicant fails to adduce any evidence which makes it possible to consider that the third section of the drain is an installation which falls within the responsibility of the Director of the Centre. On the contrary, as noted in paragraph 72 above, it follows from Article 3 of Annex F to the JRC Agreement that the municipality of Ispra is responsible for supplying a waste water collection service to the Centre, so that the third section of the drain cannot be treated in the same way as an installation falling within the responsibility of the Centre. In those circumstances, Article 9(3) of Decision 96/282 cannot serve as a basis for attributing the conduct alleged to the Commission. 92 The applicant then alleges infringement of the JRC Agreement which provides, in its opinion, that the Centre is required to preserve and safeguard public safety. As the Commission correctly asserts, Article 16(1) of Annex F to the JRC Agreement is the only provision of that agreement which deals with the safety and protection of public health. However, in the area of safety and protection of public health, that provision is relevant only as regards fire prevention and dangers arising from ionising radiations. In this case, the applicant has not put forward any argument whatsoever that could lead the Court to consider that the conduct alleged relates to fire prevention or dangers arising from ionising radiations. Accordingly, it must be concluded that the imputability of the conduct alleged to the Commission cannot stem from the Centre’s obligation to supervise the protection of safety and public health, as laid down in Article 16(1) of Annex F to the JRC Agreement. 93 Finally, the applicant pleads that the conduct alleged renders the Community non-contractually liable on the basis of the provisions laid down in Articles 2043 and 2051 of the Italian Civil Code. 94 As regards Article 2043 of the Italian Civil Code, even if one accepts the applicant’s assertion that that provision enshrines the principle of neminem laedere, that that principle is common to the laws of the Member States and that it should apply here because of an infringement by the Commission and/or the Centre of a general principle of prudence and due diligence, the fact remains that the applicant does not put forward any argument whatsoever to show why the Commission and/or the Centre are bound by an obligation of prudence and due diligence as regards the third section of the drain. In those circumstances, it must be held that the provision relied on is not sufficient to attribute the conduct alleged to the Community. 95 As regards Article 2051 of the Italian Civil Code, even if it is accepted that that provision of Italian law constitutes a principle common to the laws of the Member States, the applicant fails to establish that the third section of the drain is in the care of a Community institution or body. Contrary to what the applicant submits, care of the drain by a Community institution or body cannot stem from ownership of the land on which the Centre is built since, as stated in paragraph 89 above, no Community institution or body owns that land. Therefore, even if it is accepted that the third section of the drain is an accessory of the land on which it is situated, it by no means follows that it belongs to the Community. That argument must therefore be rejected. 96 The argument that the third section of the drain is in the care of the Commission or the Centre because, according to Article 1 of Annex F to the JRC Agreement, third parties are unable to access the Centre must also be rejected. As was noted in paragraph 71 above, the Commission is required, under Article 3 of Annex F to the JRC Agreement, to waive the immunity provided for in Article 1 of Annex F to the JRC Agreement to enable the public utility services to inspect, repair and maintain the installations connected with those services within the Centre. In those circumstances, the alleged immunity of the land on which the Centre is established cannot be successfully relied on in order to establish that the third section of the drain is in the care of the Commission and/or the Centre. 97 Nor does care of the third section of the drain lie with the Commission and/or the Centre on the ground that that section is at the sole disposal of the Centre. In addition to the observation made in the previous paragraph, since the drain, including the third section, collects waste water from the municipality of Ispra and from the Centre, the third section cannot be regarded as being at the sole disposal of the Commission and/or the Centre (as was noted in paragraph 75 above). 98 It follows from all the foregoing that the alleged failure to carry out maintenance and/or work on the third section of the drain is not attributable to a Community institution or body. In those circumstances, and in so far as it is admissible, the action must be dismissed as unfounded, without there being any need to examine whether the other conditions for establishing the Community’s non-contractual liability have been satisfied in the present case. The requests for measures of inquiry 99 The applicant asks the Court to order certain measures of inquiry in order to substantiate its claims. More specifically, the applicant asserts that information should be obtained from the Director and staff of the Centre, and from the Italian authorities which intervened on the spot at the time of the flooding. It submits that witness evidence should be allowed and, in that respect, it reserves the right to indicate at a later stage the names of the witnesses to be heard. Finally, the applicant asserts that, in order to substantiate the facts alleged, including the damage allegedly suffered or to be suffered, an on-site visit and/or an expert’s report should be carried out. 100 In that respect, it must be observed that the applicant does not identify either the precise facts which those measures are supposed to substantiate, or how those measures could serve to establish the imputability of the conduct alleged to a Community body or institution. In those circumstances, the requests for measures of inquiry must be rejected. Costs 101 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 102 Since the applicant has been unsuccessful, and the Commission has applied for costs, the applicant must pay the costs incurred by the Commission in addition to its own costs. On those grounds, THE COURT OF FIRST INSTANCE (Second Chamber) hereby: 1. Declares that the action is inadmissible in so far as it concerns an application for compensation for undefined pecuniary damages to be suffered and undefined non-pecuniary damages suffered or to be suffered; 2. Dismisses the rest of the action as unfounded; 3. Dismisses the requests for measures of inquiry; 4. Orders the applicant to pay the costs incurred by the Commission in addition to its own costs. Pirrung Meij Pelikánová Delivered in open court in Luxembourg on 30 November 2005. Registrar President E. Coulon J. Pirrung * Language of the case: Italian.