Judgment — ECLI:EU:T:1999:11
Date: 1999-01-28
Language of the case: French
Court formation: First Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition;Transport
Concepts: General;Damage for which compensation is payable;Causal link
Procedure: Action for damages - unfounded
Origin: France

summary of the reasons for the decision which showed, inter 
alia, that the agreement between the authorities and the Spanish carrier had been 
modified so as to take account of the Commission's concerns. The Commission 
then stated that it was satisfied that Ferries Golfo de Vizcaya was not receiving 
State aid. The Spanish Government was notified by letter of 11 July 1995 of the 
decision reported by the press release. 
9 On 21 June 1995 the applicant acknowledged receipt of the press release and con­
firmed that it awaited the text of the Commission decision to which it referred. In 
reply, the Commission, after indicating that the decision would be published in the 
Official Journal of the European Communities within the next few weeks, reaf­
firmed that it would send the applicant a copy of the text as soon as possible. 
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BAI v COMMISSION 
10 In those circumstances, on 28 November 1995, when the text of the decision had 
still not been received by the applicant or been published, the applicant sent by 
post the application initiating the present proceedings. However, because of strikes 
affecting the dispatch of mail in France at the time, the application was not regis­
tered at the Court Registry until 18 December 1995. 
1 1 In the meantime the Commission's decision of 7 June 1995 was published in the 
Official Journal of the European Communities on 1 December 1995 (OJ 1995 
C 321, p. 4). On 8 December 1995 the Commission sent the applicant by fax the 
text of the decision as published. 
1 2 By application received by the Court Registry on 1 February 1996, the applicant 
then brought a second action, registered under number T-14/96, for the annulment 
of the Commission decision terminating the procedure concerning the aid to Fer­
ries Golfo de Vizcaya. 
1 3 Upon hearing the report of the Judge-Rapporteur, the Court of First Instance 
(First Chamber, Extended Composition) opened the oral procedure. The parties 
presented oral argument and their replies to the Court 's questions at the hearing 
on 16 June 1998. 
Forms of order sought 
14 The applicant claims that the Court should: 
— order the Commission to make good the damage suffered by the applicant as a 
result of the delay in communicating to it the decision of 7 June 1995; 
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JUDGMENT OF 28. 1. 1999 — CASE T-230/95 
— fix a period within which the parties must transmit to the Court particulars in 
figures of the compensation established by common accord or, failing agree­
ment, a period within which the parties must lodge their submissions on quan­
tum of damage at the Court; 
— order the Commission to pay the costs. 
15 The Commission contends that the Court should: 
— dismiss the applicant's action for compensation as unfounded; 
— order the applicant to pay the costs. 
Law 
Arguments of the parties 
16 The crux of the applicant's case is that, by failing to notify it immediately, in spite 
of several requests and a formal notice, of the terms of the decision adopted fol­
lowing the complaint lodged by the applicant, the Commission committed a fault 
giving rise to the non-contractual liability of the Community within the meaning 
of the second paragraph of Article 215 of the Treaty. 
17 The applicant submits that the Commission's delay in transmitting its decision, 
which was adopted on 7 June 1995 and notified to the Spanish Government on 11 
July 1995, is unreasonable. The fact that the text of the decision was not available 
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BAI v COMMISSION 
in all the Community languages could not constitute a valid justification for such 
a delay. It maintains, first, that arguments founded on manifest failure in the func­
tioning of the internal services of an institution find no acceptance in the case-law 
(see Case 13/83 Parliament v Council [1985] ECR 1513) and, second, that the text 
of the decision was certainly available in Spanish because it was notified to the 
Member State concerned. The applicant also contends that it ought to have been 
available in French, the language of the procedure which the applicant had caused 
to be initiated. According to the applicant, the absence of any proper justification 
shows that the Commission deliberately refrained from communicating to it the 
final decision, when there was no practical obstacle to doing so and the Commis­
sion communicated the decision to the other parties to the procedure. 
18 The applicant states that the Commission's wrongful conduct prevented it from 
challenging the validity of the decision in question as soon as possible because it 
had no knowledge of the reasons on which it was based (see Case 236/86 Dillinger 
Hüttenwerke v Commission [1988] ECR 3761, paragraph 14). It was essential for it 
to be in possession of the actual text of the decision and not merely a press release 
summarising the decision. In order to ascertain whether the press release set out 
the main points of the decision, as the Commission has claimed in its defence, it 
was necessary for the applicant to be in possession of the actual text, and it was 
precisely this that it did not have. To contest the decision, it was necessary to 
know the grounds on which it was based and, in particular, why the Commission 
had taken the view that the new agreement between the Spanish authorities and 
Ferries Golfo de Vizcaya did not contain any element of State aid. 
19 In this connection, the applicant points out in its reply that the Commission has 
still not responded to its letter of 21 December 1995, in which it asked the Com­
mission to transmit the text of the new agreement, considering that the implica­
tions of the decision could not be understood or assessed without the text of the 
agreement. 
20 The applicant adds that the Commission's conduct of which it complains caused it 
serious and certain damage in that its new, and only, competitor, Ferries Golfo de 
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JUDGMENT OF 28. 1. 1999 — CASE T-230/95 
Vizcaya, has continued to receive aid unlawfully. That aid enables it to secure its 
position in the market. Since only the first three years of operation are predicted to 
show a loss, and even assuming that one day Ferries Golfo de Vizcaya may be 
required to repay the subsidies unlawfully granted to it, it has been able to take 
advantage of the procedural delays to establish itself in the market and to gain the 
loyalty of customers. The delay of several months on the part of the Commission 
in notifying the applicant of its final decision denied it the opportunity for the 
same length of time to put an end to the improper competition of which it is the 
victim. 
21 With regard to the actual existence of the alleged damage, the applicant contends 
that the Commission is not justified in maintaining that the two shipping lines in 
question are not in direct competition and that therefore the applicant has suffered 
no damage. In any case, the harm of which the applicant complains does not arise 
from unlawful competition but from the Commission's wrongful conduct. In fail­
ing to communicate immediately and spontaneously the text of the decision to the 
applicant, the Commission treated the applicant unfairly. Even if the damage 
caused in this way is only non-material, it is nevertheless certain and reparable, in 
accordance with the general principles common to the legal systems of the Mem­
ber States. 
22 Furthermore, according to the applicant, without the agreement whereby the 
Spanish authorities undertook to make good the losses of the new line for at least 
three years, the line would not have been set up because the demand was not suf­
ficient. Although the decision to open a review procedure theoretically put an end 
to the payment of the aid, the applicant points out that its competitor, as the deci­
sion of 7 June 1995 shows, merely made provision for the first instalments of aid 
to be repaid, but it has not actually repaid them. As the new agreement provides 
for payments to Ferries Golfo de Vizcaya from 1995, it follows that the aid scheme 
was interrupted only from September 1993 to December 1994, that is to say, for 
one year and three months. 
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BAI v COMMISSION 
23 The applicant adds that the amount of the damage suffered by it cannot yet be 
quantified exactly. In its reply it argues that the amount depends largely on the 
outcome of the action for annulment which it has brought against the Commis­
sion's decision terminating the procedure initiated as a result of its complaint. 
However, as the damage is certain, it considers that the Court is in a position to 
give judgment (see Case 44/76 Eier-Kontor v Council and Commission [1977] ECR 
393, Case 59/83 Biovilac v EEC [1984] ECR 4057, and Case 281/84 Zuckerfabrik 
Bedburg and Others v Council and Commission [1987] ECR 49). It is for the par­
ties either to notify the Court of the amount of compensation established by com­
mon accord or to submit their own assessments, with supporting figures, within a 
specified period (see Case C-308/87 Grifoni v Euratom [1990] ECR I-1203). 
24 The Commission, for its part, contends that the press release and the French-
language version of the decision of 7 June 1995 were sent to the applicant without 
delay, having regard to the availability of the documents in question. The applicant 
has no justification for claiming that the Commission's conduct with respect to it 
was of an unlawful nature such as to render the Community liable. 
25 The Commission adds that the applicant has adduced no specific evidence to show 
with sufficient certainty that there was actually any damage or that such damage 
was imminent and foreseeable. Therefore the applicant cannot rely on the settled 
case-law according to which an action may be brought before the Court of Justice 
in order to obtain a finding that the Community is liable for imminent damage 
foreseeable with sufficient certainty, even though the damage cannot yet be pre­
cisely quantified (see Joined Cases 56/74 to 60/74 Kampffmeyer and Others v 
Commission and Council [1976] ECR 711 and the judgment in Grifoni v Euratom, 
cited above). 
26 The Commission maintains that the applicant has not succeeded in defining clearly 
and exactly the actual nature of its material damage or in identifying the non-
material damage which is the subject of its secondary and alternative claim. In any 
case, the Commission denies that the applicant suffered any damage whatever. 
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JUDGMENT OF 28. 1. 1999 — CASE T-230/95 
27 Nor, it adds, has the applicant shown that the damage claimed was due to the 
Commission's alleged wrongful conduct. The establishment of Ferries Golfo de 
Vizcaya on the market by means of aid unlawfully received can only have been 
caused by the decision of 7 June 1995, assuming that it is proved to be unlawful, 
and not by the alleged delay with which the decision was communicated to the 
applicant. By indicating that the amount of the alleged damage depends on the suc­
cess or failure of the action for annulment, the applicant itself shows that there is 
no direct causal link between the Commission's alleged delay and that damage, the 
nature of which is necessarily connected with the specific terms of the decision in 
question. 
28 Finally, the Commission submits that any causal link was broken by the appli­
cant's own conduct, since, as from 19 June 1995, it had sufficient knowledge of the 
decision to assert its rights of action. 
Findings of the Court 
29 B y vir tue of the second paragraph of Art ic le 215 of the Treaty and the general 
principles to which that provision refers, in order for the Community to incur 
non-contractual Lability a number of conditions must be met as regards the unlaw­
fulness of the conduct alleged against the institutions, the actual existence of dam­
age and the existence of a causal link between that conduct and the alleged damage 
(see Joined Cases 197/80 to 200/80, 243/80, 245/80 and 247/80 Ludwigshafener 
Walzmühle and Others v Council and Commission [1981] ECR 3211, paragraph 
18, and Case T-199/96 Bergaderm and Goupil v Commission [1998] ECR II-2805, 
paragraph 48). 
30 The present action seeks reparation for the damage said to have been caused to the 
applicant by the delay with which the Commission's decision of 7 June 1995 was 
communicated to it. It follows that the burden of proving a causal link between 
the alleged fault on the part of the institution and the injury pleaded falls on the 
applicant (see Joined Cases C-363/88 and C-364/88 Finsider and Others v Com­
mission [1992] ECR I-359, paragraph 25, Case C-362/95 P Blackspur DIY and 
II -134 
BAI v COMMISSION 
Others v Council and Commission [1997] ECR I-4775, paragraph 31, and Joined 
Cases T-213/95 and T-18/96 SCK and FNK v Commission [1997] ECR II-1739, 
paragraph 98). 
31 The applicant primarily alleges material damage, certain and serious in nature, 
although it cannot yet quantify it exactly. In the alternative and secondarily, it 
alleges damage of a non-material nature. 
32 The applicant explains that its material damage arises from the fact that it was pre­
vented from challenging as soon as possible the Commission's decision concerning 
the aid granted to Ferries Golfo de Vizcaya, which, the applicant claims, enabled 
that company to establish itself in the market by means of aid unlawfully received. 
The consequence of the delay in notifying the applicant of the decision is, it main­
tains, that it was unable to bring an action for annulment earlier and thus to put an 
end to the improper competition from which it has suffered. 
33 According to the applicant, the determination of the amount of its damage 
depends on the outcome of the action which it brought on 1 February 1996 against 
the decision of 7 June 1995, in that annulment of the decision by the Court would 
confirm the existence of material damage. As the application to the Court was nec­
essarily belated owing to the Commission's conduct, Ferries Golfo de Vizcaya 
benefited from an unlawful aid scheme for six months too long. Should the Court 
dismiss the action for annulment, the applicant would have to limit its claim to 
compensation for non-material damage. 
34 It must be observed that the applicant has not proved the existence of a causal link 
between the conduct of the Commission of which it complains and the material 
damage which it claims to have suffered. It is clear from the applicant's argument 
as a whole that the cause of the material damage of which it complains is the deci­
sion adopted by the Commission on 7 June 1995 permitting the Spanish authori­
ties to pay certain amounts to Ferries Golfo de Vizcaya, and not the fact that the 
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JUDGMENT OF 28. 1. 1999 — CASE T-23D/95 
applicant was notified of the decision six months later. The applicant's delay in 
bringing the action for annulment, which, it claims, is due to the Commission's 
conduct, cannot, even assuming that that conduct can be characterised as wrongful, 
have caused the applicant independent material damage distinct from any damage 
which could arise from the decision which has been challenged in Case T-14/96. 
That decision, whose effects have been continuous since the date of its adoption, is 
the necessary cause of any material damage which the applicant may have sus­
tained. If such a decision had not been adopted or implemented, any delay in com­
municating the Commission's position in relation to the aid at issue could not have 
harmed the applicant's business, as the applicant claims it has. 
35 Those findings are not called in question by the applicant's argument that, if it had 
been notified of the decision immediately, it could have brought its action for 
annulment six months earlier and thus attempted to mitigate the damage which it 
claims to have sustained. The applicant's reasoning presupposes that the annulment 
of the decision and the possible repayment of the aid, on the completion of the 
procedures laid down by Community and national law, are not capable of making 
good in full the alleged material damage. In any event, having regard to the con­
tinuing nature of the damage alleged, the applicant cannot prove the existence of a 
causal link between the Commission's delay of which it complains and the part of 
that damage which is claimed to be irreparable. It is sufficient to observe that the 
temporal effects produced by the decision of 7 June 1995 flow in their entirety 
from its implementation and not from any delay in communicating it to the appli­
cant. 
36 Furthermore, the Court notes that the applicant has at no time submitted an appli­
cation for a suspension of execution of the decision challenged in Case T-14/96. If 
it had applied for suspension of the effects of the decision of 7 June 1995, it could 
have brought about a reduction in the alleged material damage, provided that it 
showed that all the conditions for the grant of interim measures by the Commu­
nity judicature were fulfilled. 
II - 136 
BAI v COMMISSION 
37 As the Court has found that the conduct with which the Commission is charged is 
not the cause of the material damage of which the applicant complains, it remains 
to consider whether that conduct caused the applicant damage of a non-material 
nature. 
38 In order to obtain reparation for the alleged non-material damage, the applicant 
must show that it has sustained actual and certain damage. Accordingly, it cannot, 
in principle, confine itself to pleading the allegedly wrongful nature of the Com­
mission's conduct with respect to it (see, to this effect, Case T-230/94 Farrugia v 
Commission [1996] ECR II-195, paragraph 46). 
39 Since the applicant has put forward nothing to show the existence of its non-
material damage or to establish its extent, it falls to it, at the very least, to prove 
that the Commission's conduct of which it complains was, by reason of its gravity, 
such as to cause it damage of that kind. However, although the applicant does sub­
mit that it was treated unfairly, it bases itself entirely on its own conception of the 
way in which the Commission treats, or ought to treat, complainants in proce­
dures relating to State aid. As the applicant has not specified the objective circum­
stances which might support its claim of unfair treatment, the existence of the non-
material damage alleged by the applicant cannot be held to have been established. 
40 It follows that none of the conditions which must be satisfied for the Communi­
ty's liability to be incurred with respect to the applicant are fulfilled in the present 
case. The action for compensation must therefore be dismissed as unfounded, 
without there being any need for the Court to rule on the question whether the 
Commission's conduct, of which the applicant complains, was lawful. 
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JUDGMENT OF 28. 1. 1999 — CASE T-230/95 
Costs 
41 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. As the applicant has been unsuccessful, it must be ordered to pay the 
costs as applied for by the Commission. 
O n those grounds, 
T H E C O U R T O F FIRST INSTANCE (First Chamber, Extended Composition) 
hereby: 
1. Dismisses the application; 
2. Orders the applicant to pay the costs. 
Vesterdorf Bellamy Moura Ramos 
Pirrung Mengozzi 
Delivered in open court in Luxembourg on 28 January 1999. 
H. Jung 
Registrar 
B. Vesterdorf 
President 
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