Opinion of the Advocate General — ECLI:EU:C:1999:606
Date: 1999-12-14
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: External relations;Commercial policy
Procedure: Appeal - unfounded;Action for damages
Origin: Germany

summary, challenges the finding of the Court of First Instance (see paragraphs 81 to 88 of the contested judgment) that the damage alleged by it, even if it were held to constitute actual damage and to have been caused in a direct and foreseeable manner by the adoption of the regulation, lacks the characteristics of specialness and unusualness which constitute, according to the case-law of the Court of Justice, a condition precedent to any liability on the part of the Community to pay compensation fordamage caused by a lawful act, such liability being, moreover, admitted only hypothetically. (15) In particular, according to DCI, the Court of First Instance misinterpreted the facts of the case in that part of the contested judgment where it found that the appellant did not form part of a category of economic operators whose property interests were affected in a manner which set them apart from all other economic operators whose claims became irrecoverable as a result of the imposition of the Community embargo (see point 6 above). The appellant maintains that, contrary to the finding made by the Court of First Instance, its inability to obtain, upon the conclusion of the contract in issue, a State guarantee against the risks assumed under the contract was not due to a general refusal by Germany to cover the risks inherent in commercial activities in Iraq but to the purpose (consultancy) and duration (more than five years) of the contract in question. As to the unusual nature of the damage alleged, DCI challenges the statement of the Court of First Instance (see paragraph 83 of the contested judgment) that, long before the invasion of Kuwait, Iraq was already regarded as a 'high-risk country by reason of its involvement in a war with Iran. That observation, according to the appellant, was not relevant, inasmuch as the contract in issue was concluded in 1975, that is to say, four years prior to the advent of the present regime in Iraq and five years before the beginning of the war against Iran. Further, the Bosphorus judgment - referred to by the Court of First Instance (see paragraph 87 of the contested judgment) for the purpose of excluding the possibility that the damage complained of by DCI, even if it were held to be considerable, could involve liability on the part of the Community (see above, point 6) - confirms, according to the appellant, that the limits fixed by the property regime under Community law must be respected even within the framework of a legal policy of embargo. Finally, the appellant argues that, even the reference to the judgment of the Court of Justice in Grands Moulins de Paris (see point 6 above) is erroneous, in the circumstances of the present case, in that: (i) liability for unusual and special damage caused by a lawful act is provided for precisely in cases where the act in question pursues an objective of general interest, and (ii) in Grands Moulins de Paris, by contrast with what happened in the present dispute, the Community had spontaneously agreed to pay subsidies to the applicants by way of compensation, although the latter did not accept them, considering their amount to be inadequate. By its seventeenth plea, DCI, drawing its conclusions in essence from the arguments advanced in support of the preceding pleas, challenges the contested judgment on the ground that the Court of First Instance unlawfully declined to recognise the existence of a right on the part of the appellant to be compensated by the defendants for the damage caused to it by the adoption of the regulation (a lawful act). 17. In my view, the pleas referred to above cannot be accepted either. As the Council has observed, the appellant's arguments do not show that the conclusions which the Court of First Instance reached, finding that the damage of which it complained was not of a special and unusual nature, were vitiated by errors of law. First, the appellant has not succeeded in proving that it has made any particular or disproportionate sacrifice in comparison with the other operators which has benefited the general interest. As the Court of First Instance established, DCI is not, in fact, the only economic operator whose claims against the Iraqi authorities, not yet satisfied at the time of the adoption of Law No 57, were affected by the measure in question. Nor, moreover, has the appellant shown that it was the only undertaking or that it belonged to a small group of operators for which the benefit of State guarantees against commercial risks was available, so that its position was such as to distinguish it from the generality of undertakings whose claims were covered by that type of insurance. In the light of that finding, the true reason underlying the unavailability in Germany of that system of guarantees against risks arising from a contract such as that in issue, at the time when it was concluded and subsequently renewed, appears, all things considered, to be irrelevant. 18. Nor, in my opinion, is there any flaw in the statement by the Court of First Instance that undertakings such as the appellant, which were unable to obtain guarantees from public bodies or insurance companies to cover risks associated with commercial operations with countries regarded as 'high-risk countries, merely accepted, in full knowledge, the increased risks involved, including that of a suspension of payments by the debtor State. As the Commission has observed, the fact that Iraq might not have been a 'high-risk country in 1975 appears, regardless of its correctness, not to be relevant, since the contract in issue was subsequently renewed several times. 19. As for the criticism that the Court of First Instance misapplied the decisions of the Court of Justice in Bosphorus and Grands Moulins de Paris, referred to in the contested judgment, with regard to the criterion of the general interest which must justify the legislative measure from which the damage alleged derives, I would point out that, if anything, it is the appellant itself which has supplied an incorrect interpretation of these two judgments. In the Bosphorus case, the Court of Justice in fact applied to the case before it a body of settled case-law according to which even fundamental rights (in this case, the right to respect for property rights and the freedom to pursue commercial activities) do not constitute absolute prerogatives, so that their exercise may be subject to restrictions justified byobjectives of general interest. (16) Moreover, in Grands Moulins de Paris, the Court of Justice unequivocally confirmed that, if the legislative measure at the root of the alleged damage is justified by some fundamental general interest (in that case, the economic interest in mitigating the consequences of the decision of the French Government to devalue the national currency, in particular to the benefit of French importers), there can be no question, even where unusual and special damage is involved, of that measure giving rise to financial liability on the part of the Community. (17) On the basis of the foregoing remarks, I therefore propose that, should the Court of Justice hold it necessary to examine them (see point 12 above), it should also reject the pleas relating to the unusual and special nature of the damage complained of by the appellant. The alternative claim for compensation for the damage suffered as a result of an unlawful act (eighteenth plea) 20. Finally, by its eighteenth and final plea, DCI challenges the ground of the contested judgment (see paragraph 99) in which the Court of First Instance held that, since the appellant had not shown that it was entitled to compensation for damage caused by a lawful act of the Community, the alternative claim - which is in fact aimed, according to the Court of First Instance, at obtaining 'compensation for the same damage - advanced by the appellant in order to obtain compensation for the damage suffered as a result of an unlawful act, should also be dismissed. According to DCI, that alternative claim should have been accepted since, at the time of the imposition of the embargo by way of the regulation, the Community legislature failed to exercise its discretion concerning the adoption of compensation measures in favour of the appellant and economic operators who found themselves in a similar position. 21. In my view, the Court of First Instance did not infringe any Community laws when it dismissed the appellant's alternative claim for compensation, in particular because the latter had not succeeded in proving, on the basis of the pleas advanced in support of its main claim, that it had suffered actual and certain damage. The dismissal of the first to third pleas in law, relating to the existence of actual and certain damage, which I have proposed to the Court of Justice above (see point 11) obliges me here to suggest a similar solution with regard to the final plea put forward by the appellant. IV - Conclusions 22. In the light of the foregoing, I propose that the Court of Justice should: - dismiss the appeal lodged by Dorsch Consult Ingenieurgesellschaft mbH against the judgment delivered on 28 April 1998 by the Court of First Instance in Case T-184/95, and - order the appellant to pay the costs. 1: - Original language: Italian. 2: - Case T-184/95 Dorsch Consult v Council and Commission [1998] ECR II-667. See also the order of 16 September 1998 (not published in the European Court Reports) whereby the Court of First Instance proceeded under Article 84(1) of the Rules of Procedure to rectify paragraphs 80, 81 and 83 of the contested judgment. 3: - OJ 1990 L 213, p. 1 (amended by OJ 1990 L 216, p. 28). The regulation was adopted by the Council, on a proposal from the Commission, having regard to the serious situation resulting from the invasion of Kuwait by Iraq and following Resolution No 661 of 6 August 1990, whereby the Security Council of the United Nations (hereinafter 'the Security Council), declaring that it was 'mindful of its responsibilities under the Charter of the United Nations for the maintenance of international peace and security and noting that Iraq had not proceeded, in compliance with Resolution No 660 of 2 August 1990, immediately and unconditionally to withdraw its armed forces from the territory of Kuwait, had decided to impose an embargo on trade with Iraq and Kuwait. Article 1 of the regulation prohibited, as from 7 August 1990, the introduction into the territory of the Community of any product originating in, or coming from, the said States, and also the export to Iraq and Kuwait of all products originating in, or coming from, the Community. Moreover, under Article 2 of the regulation, as from that date, the following were prohibited: (a) all activities or commercial transactions, including all operations connected with transactions which had already been concluded or partially carried out, the object or effect of which was to promote the export of any product originating in, or coming from, the said States; (b) the sale or supply of any product, wherever it originated or came from, to any natural or legal person established in the said countries for the purposes of any commercial activity carried out in or from the territory of Iraq or Kuwait; and (c) any activity the object or effect of which was to promote such sales or supplies. 4: - Law No 57 was adopted on 16 September 1990 and entered into force with retroactive effect on 6 August 1990. 5: - DCI sought from the Court of First Instance an order requiring the Community to pay it DM 2 279 859.69, plus interest at the rate of 8% per annum as from 9 August 1990 (the date of the entry into force of the regulation), in return for an assignment of the balance of the appellant's claim in the same amount against Iraq. 6: - See Joined Cases 9/71 and 11/71 Compagnie d'Approvisionnement and Grands Moulins de Paris v Commission [1972] ECR 391, paragraph 46, and Case C-84/95 Bosphorus [1996] ECR I-3953. 7: - As established by the settled case-law of the Court of Justice (see, inter alia, Case C-153/96 P De Rijk v Commission [1997] ECR I-2901, paragraph 15. See also Case C-257/98 P Lucaccioni v Commission [1999] ECR I-5251, paragraphs 61 and 62, according to which a plea whereby the appellant, while complaining of a finding contained in the judgment appealed against, fails to specify the legal basis on which the Court of First Instance should have reached a contrary finding, does not meet the requirements laid down in the provisions referred to in the text. 8: - OJ 1990 L 304, p. 1 (amended by OJ 1990 L 317, p. 63). According to Article X of the contract, in the event of differences arising between the parties as to the interpretation or performance of the contract, they were to endeavour to find an acceptable solution by conciliation, failing which they were to refer the matter to the Planning Board, without prejudice to their right to bring the same dispute before the competent Iraqi courts. 9: - The appellant has referred to the following documents: (i) the letter of 10 October 1990 sent to it by the Iraqi authorities when the unification of the Federal Republic of Germany and the German Democratic Republic was declared, containing statements of a general nature concerning the contribution which German undertakings might be able to make to 'the development of productive bilateral cooperation between Germany and Iraq (see paragraph 63 of the contested judgment); (ii) certain confidential reports which the assistant manager of its branch in Iraq had drawn up, showing that the Iraqi authorities were still refusing to settle the debts in issue because of the maintenance of the Community embargo (see paragraph 64 of the contested judgment); (iii) the decision of the central bank of the Land of Bavaria not to authorise the appellant to make a transfer in Iraqi dinars for the purpose of financing the requisite legal proceedings for recovery of the debt, and (iv) an exchange of letters between DCI and the German Federal Ministry for Economic Affairs, containing statements of a general nature on the effects produced by the embargo on the payment by Iraq of the claims of German undertakings. 10: - As is apparent from paragraphs 61 to 66 of the contested judgment, DCI omitted to avail itself of the protection measures provided for under the contract, so as to prompt the Iraqi authorities to adopt a definitive position concerning the non-payment of the debts owed by them. Moreover, none of the documents relied on by the appellant shows that it actually contacted the Iraqi authorities or Rafidian Bank in order to clarify the reasons for which the latter had failed to act on the payment orders received (see point 9 above). On the contrary, the appellant expressly declared that it considered it inopportune to seek to accelerate the internal administrative execution of the orders in question, even followingthe repeal of Law No 57. In those circumstances, it seems arbitrary, in my opinion, to maintain that late performance of the payment obligation on the part of Iraq has become impossible, even temporarily. Nothing, therefore, seems to point to the debts being irrecoverable. 11: - See Article 1 of Regulation No 3155/90 (emphasis added). 12: - See, most recently, Case C-143/95 P Commission v Socurta and Others [1997] ECR I-1, paragraph 36, and Lucaccioni (cited in footnote 6 above), paragraph 31. The Court of First Instance has exclusive jurisdiction to determine the facts of the case, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts found, since that appraisal does not, save where the clear sense of the evidence adduced before the Court of First Instance has been distorted, constitute a point of law which is subject to review by the Court of Justice in the context of an appeal (see, inter alia, Case 390/95 P Antillean Rice Mills and Others [1999] ECR I-769, paragraph 29, and Case 119/97 P Ufex and Others v Commission [1999] ECR I-1341, paragraph 66). Therefore, provided that the evidence admitted by the Court of First Instance in support of the facts found by it has been properly obtained and the general principles of law and the procedural rules relating to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence adduced before it (see, inter alia, the order of 17 September 1996 in Case C-19/95 P San Marco v Commission [1996] ECR I-4435, paragraph 40, and the judgment in Case C-362/95 P Blackspur and Others [1997] ECR I-4475, paragraphs 26 to 30). A plea advanced in an appeal which is based on an alleged infringement of the rightto a fair hearing, in particular failure by the Court of First Instance to take into consideration certain parts of the appellant's arguments, must therefore be declared inadmissible, inasmuch as it is aimed at obtaining a new assessment by the Court of Justice of the findings made by the Court of First Instance and to the extent that that plea does not concern any point of law but merely records disagreement on the facts found by the Court of First Instance and it is not shown that the alleged failure affected the outcome of the proceedings and so adversely affected the interests of the appellant (see Case C-221/97 P Schröder and Others v Commission [1998] ECR I-8255, paragraphs 25 and 26). 13: - See, inter alia, Lucaccioni (cited in footnote 6 above), paragraphs 13 and 14. 14: - The order in question provides that, in paragraph 80 of the contested judgment, the words 'special damage should be read in place of 'unusual damage and vice versa, and that, in paragraphs 81 and 83, 'special nature should be read in place of 'unusual nature and vice versa. 15: - See Compagnie d'Approvisionnement and Grands Moulins de Paris (cited in footnote 5 above), paragraphs 45 and 46; Case 59/83 Biovilac v EEC [1984] ECR 4057, paragraph 28; Case 267/82 Developpement and Clemessy v Commission [1986] ECR 1907, paragraph 33, and Case 81/86 De Boer Buizen v Council and Commission [1987] ECR 3677, paragraphs 16 and 17. 16: - See Bosphorus (cited in footnote 5 above), paragraph 21. 17: - See Compagnie d'Approvisionnement and Grands Moulins de Paris (cited in footnote 5 above), paragraphs 46 and 47.