Opinion of the Advocate General — ECLI:EU:C:2014:195
Date: 2014-03-20
Language of the case: French
Subject matter: Agriculture and Fisheries;Fisheries policy
Procedure: Action for damages;Appeal - successful
Origin: France

summary, I can find no reason for rejecting in general that loss of opportunity is an integral part of the harm for which compensation can be awarded, on the basis of the second paragraph of Article 340 TFEU. The evolution of comparative law, the development of the Court’s case-law and the modes of proof now available to the parties enable the Court to hold that EU law of damages should compensate for the loss of a strong chance resulting from an unlawful act adopted by an institution. 69. In the light of the arguments set out above, I shall now go on to analyse the ground put forward by Mr Giordano in relation to whether the harm in the present case is ‘certain’. e) Assessment of the ground analysed 70. In the judgment under appeal, the General Court held that the appellant had not sustained certain harm because the EU legislature did not grant an individual right to exhaustion of the quota. On that premiss, whereby the concept of an individual right to the quota and to exhaustion of that quota is closely associated with the third condition for the EU’s non-contractual liability, namely the existence of harm for which compensation can be awarded, the General Court held that the harm sustained by Mr Giordano was not certain and, as a consequence, dismissed his action. 71. In support of its reasoning, the General Court cites ‘by analogy’ the judgment of the Court of First Instance in Cofradía de pescadores ‘San Pedro’ de Bermeo and Others v Council, (32) in which it was held that the setting of a quota by an EU act does not grant any rights at all to the quota holder but merely fixes a maximum threshold for catches. (33) 72. It is important to point out that the judgment in Cofradía de pescadores ‘San Pedro’ de Bermeo was the subject of an appeal on a point of law to the Court of Justice and that the reasoning of the Court of First Instance was broadly upheld. (34) However, the Court of Justice ruled only on whether the quota grants a right in relation to the unlawful act and not the harm. The Court of Justice concluded, like the Court of First Instance, that the measures which had been declared unlawful breached a number of measures of EU law, specifically the principle of relative stability and the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic ‘which are not intended to grant subjective rights to individuals’. (35) Accordingly, the breach of those measures did not confer on the appellants a right to compensation under what was then Article 288 EC (now, the second paragraph of Article 340 TFEU). 73. At no point in its judgment in that case did the Court of Justice rule on whether the breach had caused certain harm. In the judgment under appeal, the General Court did rule on that question and held that, since no individual right existed and future catches were unforeseeable, the harm sustained by the appellant was not certain and, therefore, was not harm for which compensation can be awarded. 74. In the light of the foregoing, I believe that, in the judgment under appeal, the General Court did not follow case-law of the Court of Justice when it held that the harm sustained by Mr Giordano was not certain and instead it applied case-law relating to the unlawfulness of the measure which caused the harm. (36) To my mind, that case-law led the General Court to err in law. 75. In Cofradía de Pescadores ‘San Pedro’ de Bermeo it was alleged that damage resulted from the infringement of the principle of relative stability and the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic. The Court of Justice rightly confirmed that those measures do not grant an individual right to the holders of fishing quotas and that they merely establish a system for the distribution between the Member States of living aquatic resources, the subsequent implementation of which requires numerous provisions of EU and national law. 76. However, as I shall explain below and as I had occasion to explain in detail in the Opinion in the Joined Cases Buono and Others v Commission, the unlawful act which gave rise to harm in the present case is in fact the infringement of the principle of non-discrimination on grounds of nationality, a rule which, according to settled case-law, does create, in the event of infringement, a breach of a higher-ranking rule which grants rights to individuals. Accordingly, the General Court erred in holding that an infringement of the kind referred to in Cofradía de Pescadores ‘San Pedro’ de Bermeo and Others v Commission was equivalent to the infringement at issue in the present case, which actually concerns the principle of non-discrimination on grounds of nationality. 77. Based on that association between the two cases, the judgment under appeal concluded that the harm sustained by Mr Giordano is not ‘certain’. However, that line of reasoning cannot be upheld. 78. According to the case-file, Mr Giordano held a fishing licence issued by the Prefect and subject to the corresponding quota, which was 132.02 tonnes. The licence allowed fishing from 1 April to 30 June 2008. As a result of the regulation, fishing for bluefin tuna was halted from 16 June in the waters in which Mr Giordano operated. Until then, Mr Giordano had caught a total of 71.571 tonnes. Therefore, as a consequence of Regulation No 530/2008, Mr Giordano was unable to catch the 60.449 tonnes still available to him under his licence. 79. In the light of the criteria set out in points 38 to 69 of this Opinion, it is clear that Mr Giordano was deprived of the opportunity to obtain a future financial benefit, that is the benefit resulting from exhaustion of his fishing quota. The fact that there is no right to a quota is not synonymous with the harm being uncertain, in the same way as the fact that an institution has a discretion does not mean that any harm which may be caused is not certain. The General Court makes an erroneous association between the condition that a right must be granted, as required by the case-law of the Court of Justice with regard to the definition of an unlawful act, and the condition that the harm must be certain. This is an association which is not only alien to the way in which harm has traditionally been defined in the case-law of the Court but it is also one which hinders, and in some cases precludes, any possibility of receiving compensation despite having sustained economically significant damage. 80. The judgment in Agraz and Others v Commission is categorical when it refers to a situation in which economic damage exists but is at the same time subject to a high level of probabilistic imprecision. After observing that the Commission had a wide discretion, which made it impossible to guarantee that in the future a decision would be adopted which was favourable to the appellant’s interests, the Court of Justice held that ‘[d]espite the continuing uncertainty regarding its exact quantification, it is moreover possible to put an economic value on that damage’. (37) In any event, as I explained at point 64 of this Opinion, the important point is that there must be a strong chance of obtaining a financial benefit. 81. As stated above, the judgment under appeal merely holds that the harm is not certain since there is no individual right arising from the quota. That approach, together with the fact that Mr Giordano was prevented from obtaining a benefit of unquestionable financial value is sufficient for a finding that the ground relied on by Mr Giordano is well founded and, accordingly, the judgment at first instance must be set aside. B – The other grounds 82. In the light of the foregoing, the other grounds become ineffective and I therefore propose that the Court allow the appeal in part by upholding the first ground of appeal alleging an error in the interpretation of the second paragraph of Article 340 TFEU in relation to the certainty of the harm sustained by the appellant. VII – Final judgment on the dispute 83. Under Article 61 of the Statute of the Court of Justice, ‘if the appeal is well founded, the Court of Justice shall quash the decision of the General Court’ and may ‘itself give final judgment in the matter, where the state of the proceedings so permits’. 84. To my mind, the Court is in a position to give partial judgment in the matter. 85. In that connection, it is settled case-law that, in relation to the EU’s non-contractual liability for the unlawful conduct of its institutions and bodies, there is a right to compensation where three conditions are met: the rule of law infringed must be intended to confer rights on individuals and the breach must be sufficiently serious; the existence of damage must be established; and, lastly there must be a direct causal link between the breach which is the responsibility of the European Union and the damage sustained by the injured parties. (38) A – Whether the rule of law infringed is intended to confer rights on individuals and whether the breach is sufficiently serious 86. As explained above, the present case is characterised by the fact that the rule of law infringed is the principle of non-discrimination on grounds of nationality, as the Court confirmed in AJD Tuna. There is abundant case-law of the Court on this subject, and the breach of that fundamental principle of the Union suffices for a finding that the infringement is sufficiently serious. (39) 87. The only rule of law infringed is that principle rather than any of the other principles invoked by the appellant, since the Court has had occasion to refer to possible infringements by Regulation No 530/2008 of, inter alia, the principles of proportionality, legitimate expectations and property ownership. The only criticism which could be made of that regulation, after the exhaustive analysis carried out by the Court in AJD Tuna, is that relating to the principle of non-discrimination on grounds of nationality. Contrary to that principle, Mr Giordano was permitted to pursue his fishing activities for a week less than purse seiners flying the Spanish flag. 88. Accordingly, the condition relating to the existence of an infringement of a rule of law intended to confer rights on individuals and the sufficiently serious breach of that rule is satisfied. B – Whether there is a direct causal link between the breach which is the responsibility of the Union and the damage sustained by the injured party 89. Further, I believe that there is a direct causal link between the breach which is the responsibility of the Union and the damage sustained by the injured party, since it is clear that Regulation No 530/2008 alone is the cause of the unexpected cessation of Mr Giordano’s fishing activities. 90. However, it is important to introduce a qualification which affects the extent of liability. 91. The unlawful act which caused harm to Mr Giordano is, as already explained, the infringement of the principle of non-discrimination on grounds of nationality in view of the unjustified difference in treatment between purse seiners flying the Spanish flag and other purse seiners. Since Spanish purse seiners had an extra week in their season, Mr Giordano was deprived of a valuable period of activity from which other vessels benefitted. 92. Since the liability alleged by the appellant is based on an unlawful act, and since the existence of other unlawfulness affecting Regulation No 530/2008 was ruled out in the previous paragraph, I believe that a causal link exists only between the act constituting the discrimination, namely the extra week of fishing enjoyed by purse seiners flying the Spanish flag, and the harm sustained. The discrimination declared unlawful by the Court in AJD Tuna left the appellant in a worse position for just one week but not for the following week, when all tuna vessels, including Spanish ones, were prevented from pursuing their activities. 93. The fact that the EU’s non-contractual liability is based essentially on the unlawfulness of the harm, as the appellant in these proceedings has claimed, means, therefore, that the causal link must be limited to the connection between the unlawful acts and the harm sustained but not other acts that are separate from the unlawful act, no matter how connected they may be to the facts of the case. Since the unlawful act identified concerns the week during which the appellant was prevented without justification from pursuing an economic activity, that is the relevant period of time for the purposes of non-contractual liability for the unlawful act. 94. Therefore, I propose that the Court limit the causal link to that existing in the period from 16 to 23 June 2008, during which Regulation No 530/2008 unlawfully prohibited the appellant from carrying out his fishing activity, unlike Spanish purse seiners. 95. Accordingly, the condition relating to the existence of a direct causal link between the breach which is the responsibility of the Union and the damage sustained by the injured party is satisfied, provided that the damage is limited to the period from 16 to 23 June 2008. C – Whether the damage is actual and certain 96. Finally, it is necessary to confirm whether the existence of damage has been established and whether that damage is actual and certain. 97. As I explained at points 49 to 61 of this Opinion, the case-law of the Court has repeatedly accepted that damage does not necessarily have to be absolutely certain and that the certainty of damage may be established in the case of the loss of a strong chance which is the direct result of an unlawful act of the Union. I shall not repeat at this juncture what I have already set out in detail at points 38 to 69 of this Opinion, but suffice it to observe here that the loss of a strong chance constitutes actual and certain damage for which compensation can be awarded. 98. According to the case-file, Mr Giordano held a fishing licence which permitted him to carry out an economic activity until 30 June 2008. Further, in previous years and as a general rule, the fishing quotas of owners like Mr Giordano were exhausted, and this has not been disputed by the Commission. 99. Moreover, the fact that there was strong evidence that the fish stocks would be exhausted before the end of the season does not appear to have prevented purse seiners flying the Spanish flag from continuing to fish between 16 and 23 June 2008, including in the same waters where purse seiners flying the French flag, like that of Mr Giordano, usually fish. 100. Because loss of opportunity does not cover the full amount of the lost financial benefit, the arguments advanced by the Commission merely confirm that the probability that Mr Giordano would continue to satisfy the quota during the week from 16 to 23 June 2008 was not absolute but in no way invalidate the strength of the chance lost. 101. The parties to the proceedings at first instance did not have the opportunity to discuss in detail Mr Giordano’s exact chances of obtaining a financial benefit during the period in 2008 concerned. That question, which is closely linked to the quantification of the harm sustained, was not discussed in the terms set out herein during the proceedings before the General Court. 102. Accordingly, I invite the Court to refer the case back to the General Court so that, in the light of the arguments set out above, the latter may rule on the quantification of the harm sustained by the appellant. VIII – Costs 103. Although I propose the partial referral of the case back to the General Court, I believe that the main issue of the present appeal has been resolved above. Therefore, in accordance with Articles 138(1) and 184(2) of the Rules of Procedure, I propose that the Court order the Commission to bear the costs of the present appeal. IX – Conclusion 104. In the light of the foregoing considerations, I propose that the Court should: Allow the appeal in part, by upholding the first ground of appeal alleging an error in the interpretation of the second paragraph of Article 340 TFEU in relation to whether the damage sustained by the appellant is ‘certain’ and, accordingly: (1) set aside the judgment of the General Court of 7 November 2012 in Case T‑114/11; (2) allow the action for non-contractual liability brought by Mr Giordano and declare the EU’s non-contractual liability on account of the adoption of Commission Regulation No 530/2008 of 12 June 2008, since it has been established that the conditions for the non-contractual liability provided for in the second paragraph of Article 340 of the Treaty on the Functioning of the European Union have been satisfied; (3) refer the case back to the General Court for a ruling on the quantification of the harm sustained by Mr Giordano; (4) order the Commission to bear the costs of the proceedings at first instance in Case T‑114/11 and the appeal proceedings. 1 – Original language: Spanish. 2 – Council Regulation of 12 June 2008 (OJ 2008 L 155, p. 9). 3 – Council Regulation of 7 May 2007 (OJ 2007 L 123, p. 3). 4 – Council Regulation of 17 December 2007 (OJ 2007 L 340, p. 8). 5 – Council Regulation of 20 December 2002 (OJ 2002 L 358, p. 59). 6 – Council Regulation of 16 January 2008 fixing for 2008 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required (OJ 2008 L 19, p. 1). 7 – Regulation of 22 May 2008 adapting certain bluefin tuna quotas in 2008 pursuant to Article 21(4) of Council Regulation (EEC) No 2847/93 establishing a control system applicable to the Common Fisheries Policy (OJ 2008 L 134, p. 11). 8 – Cited above. 9 – Case C‑221/09 [2011] ECR I‑1655. 10 – Case T‑415/03 [2005] ECR II‑4355. 11 – Council Regulation of 12 October 1993 establishing a control system applicable to the common fisheries policy (OJ 1993 L 261, p. 1). 12 – From a general perspective, see Van Raepenbusch, S., ‘La convergence entre les régimes de responsabilité extracontractuelle de l’Union et des États membres’, ERA Forum (2012), and Giacobbo-Peyronnel, V., ‘L’indemnisation de la perte de chance en droit de la fonction publique de l’Union Européenne’, in Mahieu, S. (ed.) Contentieux de l’Union européenne — Questions choisies, Larcier, 2014. 13 – See, for example, Article 2(7) of Council Directive 92/13/EEC of 25 February 1992 (OJ 1992 L 76, p. 14), according to which: ‘[w]here a claim is made for damages representing the costs of preparing a bid or of participating in an award procedure, the person making the claim shall be required only to prove an infringement of Community law in the field of procurement or national rules implementing that law and that he would have had a real chance of winning the contract and that, as a consequence of that infringement, that chance was adversely affected.’ 14 – See, for example, De Ferra, C., ‘De Finetti, la rivoluzione della probabilità’, Assicurazioni, No 2, 2002, pp. 185 to 195, and Majone, G., ‘Foundations of Risk Regulation: Science, Decision-Making, Policy Learning and Institutional Reform’, European Journal of Risk Regulation, No 1, 2010, p. 5 et seq. 15 – On developments from a historical and comparative perspective, see Medina Alcoz, L., La teoría de la pérdida de oportunidad. Estudio doctrinal y jurisprudencial de derecho de daños público y privado, Thomson-Civitas, Madrid, 2007, p. 127 et seq. 16 – See, for example, Loevinger, L., ‘Jurimetrics: Science and Prediction in the Field of Law’, Minnesota Law Review, No 46, 1961 to 1962, p. 269 et seq. 17 – See Truckor, M.L., ‘The Loss of Chance Doctrine: Legal Recovery for Patients on the Edge of Survival’, University of Dayton Law Review, No 24, 1999, and Fischer, D.A., ‘Tort Recovery for Loss of a Chance’, Wake Forest Law Review, No 36, 2001, p. 608 et seq. 18 – See the comparative analysis of Fleischer, H., ‘Schadensersatz für verlorene Chancen im Vertrags- und Deliktsrecht’, JZ 15/16 1999, VVAA, Les limites de la réparation du préjudice, Dalloz, Paris, 2009, and Medina Alcoz, L., op. cit., pp. 130 to 167. 19 – Case C‑348/06 P [2008] ECR I‑833. 20 – See the commentary of Giacobbo-Peyronnel, V., op. cit. 21 – Case T‑10/02 Girardot v Commission [2004] ECR-SC I‑A‑109 and II‑483. 22 – Case T‑10/02 Girardot v Commission [2006] ECR-SC I‑A‑129 and II‑609. 23 – Emphasis added. 24 – Judgment in Case T‑461/08 Evropaïkï Dynamiki v EIB [2011] ECR II‑6367. 25 – Orders of the President in Case T‑41/08 Vakakis v Commission, paragraphs 66 and 67, and Case T‑443/09, Agriconsulting Europe v Commission, paragraph 32; and judgment in Case T‑461/08 Evropaïkï Dynamiki v EIB, paragraph 66. 26 – Joined Cases 56/74, 57/74, 58/74, 59/74 and 60/74 Kampffmeyer v Council and Commission [1976] ECR 711, paragraphs 7 and 8. 27 – See, inter alia, Case 44/76 Eier-Kontor v Council and Commission [1977] ECR 393, paragraph 8, and Case 281/84 Zuckerfabrik Bedburg v Council and Commission [1987] ECR 49, paragraph 14. 28 – Case 238/78 [1979] ECR 2955. 29 – Joined Cases 117/76 and 16/77 [1997] ECR 1753. 30 – Case C‑243/05 P [2006] ECR I‑10833. 31 – Agraz and Others v Commission, paragraph 42. 32 – Cited above. 33 – Judgment of the Court of First Instance in Cofradia de pescadores ‘San Pedro’ de Bermeo and Others v Council, paragraph 118. 34 – Case C‑6/06 P Cofradia de pescadores ‘San Pedro’ de Bermeo and Others v Council. 35 – Judgment of the Court of Justice in Cofradía de pescadores ‘San Pedro’ de Bermeo and Others v Council, paragraph 56. 36 – It should be noted that the judgment under appeal cites Cofradía de pescadores ‘San Pedro’ de Bermeo and Others v Council ‘by analogy’, in the full awareness that the application of that judgment does not refer to the same issue. 37 – Agraz and Others v Commission, paragraph 42. 38 – See, inter alia, Case C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraph 42; Case C‑312/00 P Commission v Camar and Tico [2002] ECR I‑11355, paragraph 53; and Case C‑472/00 P Commission v Fresh Marine [2003] ECR I‑7541, paragraph 25. 39 – See, inter alia, Joined Cases 83/76 and 94/76, 4/77, 15/77 and 40/77 HNL and Others v Council and Commission [1978] ECR 1209, paragraph 5; Ireks-Arkady and Others v Commission, paragraph 11; Case 106/81 Kind v EEC [1982] ECR 2885, paragraphs 22 to 25; and Case C‑63/89 Assurances du crédit v Council and Commission [1991] ECR I‑1799, paragraphs 14 to 23.