61990CC0055_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
++++
Mr President,
Members of the Court,
1. In the present action brought under Article 178 and the second paragraph of Article 215 of the EEC Treaty, Mr James Joseph Cato requests the Court to compensate him for the damage which he alleges has been caused to him by the Commission.
2. The need to adapt the Community fishing fleet to the new operating conditions resulting both from the introduction of economic maritime zones of two hundred miles and from the limitation on catches of certain types of fish is at the origin of the present dispute. Council Directive 83/515/EEC of 4 October 1983 concerning certain measures to adjust capacity in the fisheries sector (1) (hereinafter "the directive") was intended to encourage the temporary withdrawal of certain vessels and a permanent reduction in the capacity "of fishing fleets, the technical characteristics of which make it difficult to adapt them to the types of fishing anticipated in the medium term", (2) essentially because of the small size of the vessels comprising those fleets. Thus, under Article 5(1) of the directive, "the measures to reduce production capacity permanently ... concern vessels the length of which between perpendiculars is 12 metres or more. (3) They shall be effected by means of:
° scrapping,
° the definitive transfer to a third country, or
° the assignment of vessels to purposes other than fishing in Community waters".
A final cessation premium is to be paid to the owner after the issue of the certificate witnessing that his vessel has been struck off the register of fishing vessels. (4)
3. Member States are not obliged to introduce such a system; (5) if they do so, however, they must submit to the Commission, among other documents, a forward plan of the measures proposed and drafts of any laws, regulations or administrative provisions which they propose to adopt in implementation of the directive. (6) The Commission is required to determine whether the measures contemplated, in particular on the basis of their conformity with the directive, fulfil the conditions for financial contributions from the Community. (7)
4. The United Kingdom decided to introduce such measures for reducing the capacity of its fishing fleet by way of the Fishing Vessels (Financial Assistance) Scheme 1983 (hereinafter "the Scheme"). That measure was approved by Commission Decision 84/17/EEC of 22 December 1983 (8) (hereinafter "the decision").
5. The applicant contends that it is by virtue of this decision that he is entitled to compensation, in so far as the Commission improperly approved a national scheme which did not comply with the directive.
6. Mr Cato found himself having to contend with the following situation. He applied in 1984 for the final cessation premium and placed his vessel "Excelsior" on the market as a houseboat. Mr and Mrs Hann read the advertisement which appeared in the Fishing News on 20 July 1984 and decided that they wanted to purchase the vessel in order to transfer it to the West of Scotland for the purpose of accommodation, as Mr Hann was intending to begin a course at Strathclyde University in October. The official from the Ministry of Agriculture, Fisheries and Food assured Mr Hann that he would be able, in the event of unexpected circumstances, to resell the vessel but added that if he did so the new owner might be required to repay the premium. (9) The sale was completed on 1 August 1984. The following day Mr Cato signed the application form for the final cessation premium. (10) On 9 August 1984, the "Excelsior" was removed from the registry of fishing vessels in Fleetwood. At the same time, Mr Hann brought the vessel to a marina in Strathclyde and used it as a houseboat from 14 September to the beginning of October 1984. Mrs Hann, however, was unexpectedly promoted in her job and for this reason the couple decided at the end of September to resell the vessel. The advertisement made it clear that the vessel was a "decommissioned vessel". Two Irish nationals, Messrs Boyle and Murphy, came forward as potential purchasers and expressed an interest in the vessel' s engine. The sale was concluded on 14 October. Shortly afterwards, Messrs Boyle and Murphy brought the "Excelsior" over to Ireland and applied for it to be registered as a fishing vessel. At the beginning of December 1984, the Irish Department of Tourism, Fisheries and Forestry asked the British authorities whether any final cessation premium had been paid. The latter replied that no premium had been paid, whereupon the Irish authorities issued the fishing licence. On that ground, the British authorities informed Mr Cato on 25 February 1985 that the "Excelsior" was once more being used for the purposes of fishing and that the premium could for that reason not be paid to him.
7. Mr Cato applied on 21 December 1985 to the High Court of England for a judicial review of the refusal by the United Kingdom authorities to pay him the premium. Such a review might have enabled him to present complaints based on United Kingdom public law. His application was refused on the ground that it had been made after the expiry of the prescribed limitation period of three months. It ought to be pointed out that the High Court could nevertheless have extended that period if it had thought that the submissions made by Mr Cato in support of his application had some chance of being upheld. (11)
8. The applicant therefore brought a second action before the High Court on 29 October 1986, based this time on private law, namely the contractual liability of the competent Minister, the fact that the latter had given the applicant false information (negligent mis-statement), and finally the fact that the Minister, by his behaviour, had given rise to a situation which he could not subsequently contest (estoppel).
9. The High Court dismissed his action on 27 May 1988. On appeal, the Court of Appeal upheld the judgment at first instance on 15 June 1989 and refused to grant Mr Cato leave to appeal. The House of Lords also refused leave to appeal on 24 January 1990.
10. Although the applicant does refer to the point, it does not appear to me worthwhile to examine in detail the admissibility of the application with regard to the five-year period of limitation laid down in Article 43 of the Statute of the Court of Justice of the EEC. The point from which that period began to run in the present case would appear to have been the letter posted on 25 February 1985 in which the United Kingdom informed the applicant of its decision not to pay the premium. Taking account of the additional ten days granted to persons residing in the United Kingdom by the provisions of Annex II to the Rules of Procedure, this would mean that the period expired at midnight on 7 March 1990. Mr Cato' s application was lodged at the Court Registry on 7 March 1990 and entered in the register the following day. Furthermore, the Court, in its judgment in Roquette, (12) has already pointed out that:
"Actions to establish non-contractual liability are governed, pursuant to the second paragraph of Article 215 of the EEC Treaty, by the general principles common to the laws of the Member States. A comparison of the legal systems of the Member States shows that as a general rule, subject to very few exceptions, a court may not of its own motion raise the issue of time limitation". (13)
From this the Court concluded that it is not its function to consider of its own motion whether actions before it seeking to establish liability may be time-barred.
11. In contrast, the objection of inadmissibility made by the United Kingdom in its intervention requires more extensive consideration. Quoting in particular from the judgment of the Court in Wagner, (14) the intervener submits, in the first place, that the Court is not competent to examine under Article 215 the validity of decisions taken by national agencies within the framework of the Common Agricultural Policy, and, secondly, that the present case in fact relates to a claim for payment of amounts allegedly due, a matter which, according to the judgment of the Court in Sucrimex, (15) falls within the exclusive jurisdiction of national courts. The inadmissibility of the application is thus raised by reason of what we are obliged to call "the subsidiary nature" (16) of an action based on non-contractual liability vis-à-vis the remedies available under national law.
12. In 1975, Lord Mackenzie Stuart wrote that this area of Community law resembled a map of Africa at the beginning of the nineteenth century: "The coast is shown; we see the deltas of great rivers; but where they lead and where they have their sources are as yet uncharted. Certainly the avidity with which reports of the decision of the Court are devoured by certain writers would justify the legend 'Here be dragons' ". (17) Without here going over the historic evolution of the case-law of the Court, (18) I would like to point out what appears to me to be its present state.
13. As the Court noted in its judgment in Unifrex, (19)
"An established body of the case-law of the Court of Justice shows that the action for damages, pursuant to Articles 178 and 215 of the Treaty, was set up as an independent action, having its own particular place in the system of means of redress and subject to conditions for its use formulated in the light of its specific purpose. It must nevertheless be viewed in the context of the entire system established by the Treaty for the judicial protection of the individual. When an individual considers that he has been injured by the application of a Community legislative measure that he considers illegal, he may, when the implementation of the measure is left to the national authorities, contest the validity of the measure, when it is implemented, before a national court in an action against the national authorities. That court may, or even must, as provided for in Article 177, refer the question of the validity of the Community measure in dispute to the Court of Justice. However, the existence of such a means of redress will be capable of ensuring the effective protection of the individuals concerned only if it may result in making good the alleged damage." (20)
14. It would thus appear that, according to the case-law of the Court, the admissibility of an application to the Court turns on the question whether or not it was possible for the individual concerned to recover full compensation before national courts for the damage suffered. (21) Thus, according to an authoritative body of learned opinion, (22) if the action is in fact limited to recovering amounts levied by national authorities pursuant to a Community measure, the legality of which is disputed by the applicant, recourse to Article 215 is not available, in so far as national procedures would have enabled the applicant to obtain repayment of the amount unduly paid, following a reference for a preliminary ruling (23) and a declaration that the contested regulation was invalid. (24) On the other hand, in the case where the applicant is seeking to benefit from an advantage unlawfully refused to him by a provision of secondary Community law, an action to establish liability will be declared admissible in so far as the applicant would have been unable to secure the advantage which he seeks by instituting proceedings before the national courts. (25)
15. As Advocate General Capotorti pointed out in his Opinion delivered in Granaria III: (26)
"In all the judgments cited the Court accepted the admissibility of the actions without objecting that internal remedies must first be exhausted. That is explained, in my opinion, by the fact that they were cases in which, even if the applicants had succeeded in convincing the national court of the illegality of the Community measures which had caused them damage, they still could not have obtained from the national administration the benefit to which they claimed to be entitled without the prior intervention of the Community legislature". (27)
16. All these hypotheses concern the ° as it were "classic" ° case in which the measure which originally caused the damage is a measure adopted by a national authority pursuant to a Community provision and in which the invalidity of that provision, through the instrument of the national decision, lies at the origin of the damage. I must point out that the Court is faced in the present case with a slightly different situation. The individual act which gave rise to the damage suffered by Mr Cato, namely the refusal by the competent United Kingdom Minister to pay him the premium, was adopted pursuant to national general rules, which were approved by the Community authorities as being in accordance with the directive. It is not Mr Cato' s case that the directive, being unlawful, caused him damage through the United Kingdom Scheme that implemented it. On the contrary, he rests his case on the improper transposition of that directive by the United Kingdom legislature. Such a plea in law necessarily calls in question the validity of the decision taken by the Commission to approve the United Kingdom Scheme. Although the individual decision whereby the national authorities refused to grant the premium to Mr Cato was not taken on the express order of the Commission, as was the case in Krohn, (28) it was none the less taken pursuant to a general scheme approved by the Community institution. The Court will therefore have to decide whether or not, in such a situation, an action to establish liability is admissible if the remedies available under national law have not first been exhausted.
17. My view is that the particular circumstances of the present case are closer to the "classic hypothesis" than to the facts in the Krohn case, which I have already cited. Mr Cato questions the individual decision taken by the United Kingdom Minister only in so far as that decision applies a national scheme which is at variance with the directive. Thus, the illegality essentially lies in the Scheme itself. The calling in question of the Scheme necessarily supposes, as I have already stated, a finding that the decision by the Commission is invalid. We are here in a situation which is very close to that in which the questioning of a measure adopted by a national authority also implies a prior finding that the provision of secondary Community law, which the national measure was designed to apply, is invalid. In both cases the national authorities retain a certain margin of manoeuvre; the difference, which in my view is negligible, is that, in the classic hypothesis, they are called upon to act in order to implement Community provisions, whereas in the present case their action depended on prior approval. In any event, however, neither the adoption of the Scheme nor that of the ministerial decision relating to Mr Cato results from the express order of the Commission. The admissibility of the present action would therefore appear to be dependent on the exhaustion of remedies available under national law.
18. According to the case-law of the Court, however, such a requirement has to be satisfied only in so far as "those national rights of action should provide an effective means of protection for the individual concerned and be capable of resulting in compensation for the damage alleged". (29)
19. The main difficulty therefore is to ascertain whether the initiation of proceedings before a national court would have enabled the applicant to obtain a "satisfactory outcome", that is to say in the present case, the payment of the premium.
20. My view on this point is that, had Mr Cato obtained judicial review, the United Kingdom court would in all likelihood have been led to verify the compatibility of the Scheme with the directive and thus to examine the validity of the Commission decision which approved the Scheme. Pursuant to the judgment of the Court in Foto-Frost, (30) it would therefore have been obliged to refer this last point to the Court by way of a request for a preliminary ruling. Let us imagine that the Court held that the United Kingdom Scheme had imposed a condition for the grant of the premium which had not been provided for in the directive and for that reason concluded that the Commission decision was invalid. It may be asked what would be the consequences of such a declaration of invalidity. Since the Commission had unlawfully approved a scheme which did not comply with the directive and had unlawfully made financial contributions from the Community, would the unavoidable conclusion not be that aid granted pursuant to that scheme could no longer be justified under Community law, particularly in the light of the provisions of Article 12 of the directive? (31) In such circumstances, Mr Cato would not have obtained the expected premium, notwithstanding the finding that the Commission decision was invalid, since the United Kingdom court would no longer have been in a position to apply the Scheme.
21. Only if the Court had declared the Commission decision invalid merely to the extent to which it approved a national scheme which included a particular condition in addition to those set out in the directive, might the United Kingdom court perhaps have been in a position to set aside the application of that condition and thereby enable Mr Cato to obtain payment of the premium. Such a solution is not self-evident.
22. Admittedly, the Court on one occasion, after finding that a regulation was invalid inasmuch as it excluded certain operators from qualifying for an exemption from a co-responsibility levy, maintained in force the provisions of that regulation and enjoined the national authorities to ensure that the operators discriminated against might benefit from that exemption, pending action by the Community legislature. (32) In contrast, the Court has limited itself in other judgments to ruling that the Community provision in question was invalid, without indicating the inferences to be drawn from its ruling. Such was the case, for instance, in the Court' s judgment in Weiser (33) in which, after stating that a person who had given up an activity as a self-employed person in order to become an official of the European Communities was not entitled, as Community law then stood, to transfer his pension rights, the Court went on to hold that the relevant provision of the Staff Regulations for officials of the European Communities was invalid, but without drawing any inferences from this. The position was similar in the "gritz" and "quellmehl" cases. In two judgments (34) on references for a preliminary ruling, the Court held that the disputed provisions of the Council regulations in question were incompatible with the principle of equality inasmuch as they provided for an unjustified difference in treatment between certain cereal derivatives. The Court pointed out, however, that it was consequently for the institutions competent in matters relating to the Common Agricultural Policy to adopt the measures necessary to correct that incompatibility. In two later judgments (35) in cases which were brought before the Court under the second paragraph of Article 215 of the EEC Treaty and which concerned the same disputed provisions, the Court, in rejecting the objection of inadmissibility submitted by the Community institutions, held that
"pursuant to the ... judgment[s] of the Court, a national court could not have upheld such an action [for payment] in the absence of any provision of Community law authorizing the national bodies to pay the amounts claimed". (36)
23. The applicant was therefore not in the same position of confidence and certainty as the operator who, in an action for recovery of amounts unduly paid, relies on the invalidity of a provision of Community law under which he was required to make payments and who knows that he will be able to recover those amounts simply on the basis of the Court' s holding the provision in question to be invalid. The initiation of proceedings before the United Kingdom courts thus entailed a hazard as to the consequences of a finding that the Commission decision was invalid. For those reasons it is not certain that the applicant could have obtained a "satisfactory outcome" by this means.
24. I accordingly conclude, on that ground, that the application is admissible.
25. In the alternative, even if the Court should decide to make the admissibility of an action to establish liability in the particular circumstances of the present case dependant on the exhaustion of remedies available under national law, I must point out that in the present case the applicant has indeed made use of those remedies. However, the first action was out of time and the court of competent jurisdiction refused to grant an extension of time, even though it was empowered to do so if it considered that prima facie the applicant' s case was not devoid of merit. It appears that this action ° an application for judicial review ° would have provided an exceptionally appropriate context for a review by the national court of the conformity of the United Kingdom Scheme with the directive.
26. The second action, based on private law, was indeed brought by the applicant, who moreover made use of all the remedies open to him. Although he did not claim in those proceedings that there was any discrepancy between the Scheme and the directive, it is not clear that the procedural rules of English law would have allowed him to do so. (37) I would also point out that it was, in my view, for the High Court or the Court of Appeal, when faced with an incompatibility between the national legal rule and the rule under Community law, to raise that issue of its own motion, in accordance with the principle laid down by the Court in Simmenthal. (38) Lord Justice Purchas, delivering the majority judgment in the Court of Appeal, expressly stated that: "Happily, on the view that I have taken of the provision of the Scheme and the events which have taken place, the paragraphs of the Scheme are in sympathy with the Articles of the Directive so that it is not necessary to enter upon an exercise of construction of the sort envisaged in Lister' s case". (39)
27. It is perhaps not necessary, at the stage of admissibility, to embark on an examination of the complex issue of causality in the case of concurrence of fault, an issue which properly falls for consideration in the context of the causal connection between the wrongful act and the damage and consequently goes to the substance of the case. In my view, it is sufficient to note that the remedies under national law were used, that the proceedings brought were not manifestly inadmissible, that the remedies have been exhausted and that they did not allow the question of the possible illegality of the Commission decision approving the United Kingdom Scheme to be examined by the Court of Justice. From this point of view also, I believe that the application is admissible.
28. Let us therefore examine, as regards the substance of the case, the possible liability of the Commission. The applicant relies on the fact that the Community institution, by approving the United Kingdom Scheme, although it was not in conformity with the directive, infringed superior rules of law for the protection of individuals, namely the principles of legal certainty and the protection of legitimate expectations, and thus committed a wrongful act from which the damage suffered by the applicant directly arose. The Commission and the United Kingdom, on the other hand, take the view that the Scheme is wholly in conformity with the directive.
29. The applicant relies on two provisions of the Scheme for the purpose of establishing this inconsistency. He claims that the first of those provisions conferred a discretion on the competent Minister which was not provided for in the directive; the second provision, he claims, imposed a condition that did not number among those set out in the Community instrument, namely the obligation imposed on the owner of the vessel to satisfy the competent Minister that the withdrawal of the vessel from the Community fishing fleet would be permanent.
30. I do not believe that the first of those arguments can be accepted. Admittedly, paragraph 26 of the Scheme does provide that:
"On receipt of a declaration submitted in pursuance of paragraph 25, the appropriate Minister may, if he is satisfied °
(a) that the vessel to which the declaration relates has been removed from the fishing boat register,
(b) that the conditions (if any) subject to which his approval was given have been observed, and
(c) that the foregoing requirements of this Part have been met in respect of the vessel,
pay a decommissioning grant to the applicant". (40)
31. The judgment of the Court of Appeal, however, explained how that provision ought to be interpreted. Lord Justice Purchas stated: "Once the Minister is 'satisfied' that the requirements of sub-paragraphs (a) to (c) of paragraph 26 have been met then he is empowered and under a duty to pay a grant in accordance with paragraph 27". (41)
32. In other words, if the conditions for payment of the premium laid down by the Scheme have been fulfilled, that premium is due to the owner of the vessel, and the Minister retains no discretion whatever in the matter. From that perspective, such a provision does not appear to be at variance with the directive.
33. The same does not hold true, in my view, of those provisions which make payment of the premium subject to conditions which are not provided for in the directive. Article 5(2) of the directive states that "the financial aid ... shall consist of the grant by Member States to the owner of a final cessation premium, fixed on a flat-rate basis per gross registered ton, ... after the issue of the certificate witnessing that the vessel has been struck off the register of fishing vessels". Article 5(4) provides: "All Member States shall take the necessary measures to ensure that vessels for which final cessation premiums have been paid are permanently barred from fishing in Community waters". The conclusion which has to be drawn from those two provisions, read together, is that the owner, once his vessel has been scrapped, transferred to a third country or assigned to purposes other than fishing in Community waters, is entitled to payment of the premium as soon as he has caused the vessel to be struck off the register of fishing vessels. The directive does not lay down any other conditions. Furthermore, the seventh recital in the preamble to the directive points out that "the granting of this premium should be conditional on the vessel' s first being struck off the register of fishing vessels so as to ensure that it is not again used for fishing in the waters of any Member State". It is thus the Member States that are obliged to ensure that the withdrawal of the vessel from fishing in Community waters is permanent, as is made very clear in Article 5(4) of the directive. The Member States are assisted in this task by the procedure set out in Article 5(5), which requires them to forward to the Commission a list of vessels for which the premium has been granted; this list is then published in the Official Journal of the European Communities. I would also stress on this point that the provisions of the directive strike me as being unequivocally mandatory in nature. There is in my opinion no question whatever of the foregoing being an interpretation which the Community directive permits but does not dictate. The machinery thus described displays a high degree of coherence and alone appears capable of attaining the objectives of the directive; moreover, it is difficult to understand why the Member States should be obliged to submit draft national schemes for the approval of the Commission, which examines in particular whether such schemes are consistent with the directive, if those Member States still retained the right to deviate from the Community provisions.
34. The United Kingdom Scheme diverges appreciably on this point from the directive. If we combine paragraphs 23 (42) and 26(b) of the Scheme, it becomes clear that the appropriate Minister may approve the application if he is satisfied that it meets the necessary requirements, in particular that relating to the permanent nature of the withdrawal; his decision may also attach such other conditions as he considers to be appropriate. Thus, not only does paragraph 23(2) of the Scheme allow the Minister to add conditions which were not provided for by the directive, but the United Kingdom Scheme has also effected, to some degree, a transfer of obligations. Whereas the directive places upon the Member State the responsibility for ensuring that the withdrawal is permanent, a very straightforward task given that all administrative authorities within the Community which are responsible for maintaining registers of fishing vessels have access to the lists published in the Official Journal of the European Communities, the Scheme has shifted this responsibility to the owner of the vessel. Once the vessel has been sold, that person no longer has any control over the use to which it is put. As Lord Justice Stocker pointed out in his concurring judgment, "Where the assignment takes the form not only of attribution for purpose but the physical transfer of ownership by sale such a test of genuineness of assignment in my view is not appropriate since once sold the claimant has no further control over the purpose to which the vessel is in fact put". (43)
35. Thus, had the United Kingdom Scheme been in strict conformity with the directive, the damage suffered by Mr Cato would never have materialized. The "Excelsior" had been struck off the register of fishing vessels on 9 August 1984. The United Kingdom authorities ought, as from that moment, to have paid the premium and submitted the relevant information to the Commission in order that the name of the "Excelsior" should appear in the lists published in the Official Journal of the European Communities. The Irish authorities could then have identified the "Excelsior" from those lists at the beginning of December 1984. Should that not have been the case, they would have asked the competent United Kingdom authorities whether a premium had been paid for the withdrawal of the "Excelsior" (which is in fact what they did); the latter would thereupon have answered in the affirmative and it would consequently not have been possible to re-register the vessel in Ireland.
36. Paragraphs 23 and 26(b) of the Scheme are thus not in conformity with the directive. It follows therefore that the Commission failed to comply with Article 7(1) of the directive, which makes approval of national schemes subject to such conformity. This clearly constitutes a wrongful act. It remains to be examined whether that wrongful act can be categorized as:
"a sufficiently flagrant violation of a superior rule of law for the protection of the individual". (44)
37. The applicant submits in this regard that there has been a breach of the principles of legal certainty and the protection of legitimate expectations. (45) I feel that I must point out immediately on this matter that the traditional legal view expressed by the Court, to the effect that
"the Community does not incur liability on account of a legislative measure which involves choices of economic policy unless a sufficiently serious breach of a superior rule of law for the protection of the individual has occurred", (46)
was expressly directed at legislative measures involving choices of economic policy. The relevant cases most often concerned the implementation of the Common Agricultural Policy, in respect of which the Court has always accepted that the Community institutions enjoy a wide discretion. (47)
38. Such is not the position in the present case. For the purposes of applying Article 7(1) of the directive, the Commission had either to refuse approval for the national scheme in question if it was not in conformity with the directive or, if it did comply with the directive, to grant approval, and had no further latitude. On this specific point, there was no question whatever of a decision involving choices of economic policy.
39. Similarly, the relevant case-law of the Court was for the greater part developed in connection with Council regulations, which are in a way the expression of the Community' s legislative activity. It has moreover been remarked in legal literature how much the Court has drawn inspiration from solutions prevailing in a number of Member States with regard to liability incurred as the result of a legislative act. (48) In the present case, the directive set out the precise limits within which the Commission had to act, and the Commission' s action therefore appears to be much more closely associated with the executive activity of the administration. It would, in my opinion, be prudent to apply separate criteria of liability to these two forms of activity, inasmuch as the discretion conferred on the Community institutions differs appreciably in each of the two cases. A number of legal writers have already stressed this difficulty, (49) taking the view that it is "a consequence of the confusion between the legislative and executive functions within the institutional system of the European Communities". (50)
40. It seems to me in any case, without wishing to question the application in Community law of the "Schutznormtheorie", that the requirement of a "sufficiently serious breach of a superior rule of law for the protection of individuals", that is to say, the seriousness of the wrongful act, ought to be assessed by taking into account both the legal context of the measure in question and the more or less wide margin of discretion accorded to the institution which adopted that measure.
41. Since Article 7(1) of the directive expressly made the approval accorded to national schemes subject to their compliance with the directive, Mr Cato was perfectly entitled to believe that the Scheme complied strictly with the Community law provisions, in view of the fact that it had been approved by the Commission. The legitimate expectation which he was entitled to derive from that state of affairs was not respected by reason of the unlawful conduct of the Community institution. That institution, moreover, violated the principle of legal certainty, since Mr Cato would, on the basis of the directive, have received the payment requested, whereas he was in fact unable to obtain the expected benefit because of the unlawful approval of the Scheme. The principles of the protection of legitimate expectations and legal certainty go hand in hand ° and not for the first time ° in the present case. These findings are in my view sufficient to show that there has been a breach of a superior rule of law designed for the protection of individuals.
42. So far as the appraisal of the damage suffered by Mr Cato is concerned, it is sufficient to note that the non-payment of the premium, after he had sold his vessel, clearly goes beyond the bounds of the economic risk inherent in that type of activity, even if one can still regard a self-employed fisherman who ceases fishing and sells his means of livelihood as an economic operator. The particular nature of the damage suffered by Mr Cato is equally obvious.
43. It remains for me to examine the question of the causal connection between the wrongful act committed by the Commission and the damage suffered by Mr Cato.
44. Two problems warrant examination in this regard. In the first place, the blameworthy conduct of the Commission has its origin in the wrongful act of the United Kingdom in adopting a scheme for decommissioning vessels which did not comply with the directive. Admittedly, it is recognized in the case-law of the Court that there may be concurrent liability on the part of a Member State and on the part of a Community institution; (51) I do not believe, however, that this can lead the Court to hold that liability must be apportioned. That would be tantamount to declaring that a Member State is liable to a given degree, something which clearly exceeds the Court' s jurisdiction. In its judgment in Kampffmeyer, the Court, after recognizing the liability in principle of a Community institution, went on to request the applicants to await the outcome of national proceedings concerning the possible liability of the Member State in question in order "to avoid the applicants' being insufficiently or excessively compensated". (52) It is thus only at the compensation stage that the Court takes into account such liability on the part of a Member State as may have been determined by the national courts. Consequently, it would be sufficient in the present case to find that Mr Cato can no longer obtain any compensation whatever from the United Kingdom authorities before United Kingdom courts, as has already been confirmed during the oral procedure.
45. In the present case, however, I do not believe that any apportionment of liability between the United Kingdom and the Commission should be envisaged. It follows from Articles 7 and 12 of the directive, read together, that a national scheme cannot be applied unless it has been approved by the Commission, in particular on the basis of its conformity with the directive. The breaches of the principles of legal certainty and the protection of legitimate expectations arising from the behaviour of the Community institution are directly attributable to the decision of approval taken by the Commission, since if it had not been for that decision the Scheme, in its present form, could never have seen the light of day. In other words, the failure by the United Kingdom to comply with the provisions of the directive was not capable per se of causing the damage suffered by Mr Cato. That damage is not constituted, in abstracto, by the fact that he did not receive the premium (he would also have been in that position if the United Kingdom had decided not to introduce a scheme for a permanent reduction in its fishing capacity), but lies rather in his disappointed expectation, given that once he had learned of the existence of the Scheme and that it had been approved by the Commission, and after complying with all the conditions set out in the directive, he was perfectly entitled to believe that he had an indisputable right to receive the premium. The direct origin of that damage lies in the unlawful approval of the Scheme by the Community institution.
46. Secondly, it is necessary to consider the effect on the materialization of the damage of any lack of diligence, mainly on the part of Mr Cato, which resulted in the remedies available under national law being exhausted without the question of the validity of the Commission decision ever having been brought before the Court of Justice. As I have already pointed out, Mr Cato failed to comply with the three-month period laid down by United Kingdom procedural law for the making of an application for judicial review. The court in question could have extended that period if it had believed that the application had some chance of succeeding; however, it did not do so. The private-law action brought by Mr Cato apparently did not enable him to rely on the discrepancy between the provisions of the Scheme and those of the directive.
47. However, I do not believe that it is necessary for the Court to engage in a complex analysis of a possible lack of diligence and its interaction with the Commission' s wrongful act. Since, as I have already said, it is not established that the initiation of national proceedings, would, even if followed through to their conclusion, have enabled Mr Cato to obtain a satisfactory outcome, as it is not certain that a finding by the Court of Justice that the disputed decision was invalid would have induced the United Kingdom courts to order payment of the premium to the applicant, there is no purpose to be served by considering the lack of diligence responsible for the fact that the proceedings initiated by Mr Cato before the national courts did not result in the Court of Justice being given an opportunity to make such a finding of invalidity. To put it differently, that lack of diligence did not undeniably contribute to the materialization of the damage.
48. For those reasons I would propose that the Court should:
(1) declare the application admissible and hold that there is non-contractual liability on the part of the Community, inasmuch as the Commission, by Decision 84/17/EEC of 22 December 1983, approved the United Kingdom Fishing Vessels (Financial Assistance) Scheme 1983, contrary to the provisions of Article 7(1) of Council Directive 83/515/EEC of 4 October 1983 concerning certain measures to adjust capacity in the fisheries sector;
(2) request the parties to submit to it, within a period of six months following delivery of the judgment, figures relating to the amount of compensation, determined by mutual agreement, or, in the absence of such agreement, to submit to the Court, within the same period, their respective sets of figures;
(3) reserve the costs.
(*) Original language: French.
(1) ° OJ 1983 L 290, p. 15.
(2) ° Seventh recital in the preamble to the directive.
(3) ° My emphasis: vessels the length of which between perpendiculars is 18 metres or more are the subject of measures for temporary reduction (Articles 3 and 4 of the directive).
(4) ° Article 5(2).
(5) ° Article 1(1).
(6) ° Article 6.
(7) ° Article 7(1).
(8) ° Concerning the implementation by the United Kingdom of certain measures to adjust capacity in the fisheries sector pursuant to Council Directive 83/515/EEC (OJ 1984 L 18, p. 39).
(9) ° Pages 4 and 5 of the judgment of the High Court.
(10) ° Page 8 of the judgment of the High Court.
(11) ° On this point, see the observations of the United Kingdom, II, 2.4.
(12) ° Judgment in Case 20/88 Roquette Frères v Commission [1989] ECR 1553.
(13) ° Paragraph 12 of the judgment.
(14) ° Judgment in Case 12/79 Wagner v Commission [1979] ECR 3657.
(15) ° Judgment in Case 133/79 Sucrimex and Westzucker v Commission [1980] ECR 1299.
(16) ° With regard to the ambiguity of this concept, see for example R. Joliet, Le droit institutionnel des Communautés européennes, le contentieux, Liège 1981, p. 250; J. Rideau and J.-L. Charrier, Code de procédures européennes, Litec 1990, p. 183-186; M. Waelbroeck, J.-V. Louis, D. Vignes, J.-L. Dewost and G. Vandersanden in J. Mégret, Le Droit de la Communauté Economique Européenne, Vol. 1, Book 10, 1983, p. 280.
(17) ° The Non-Contractual Liability of the European Economic Community, XII, Common Market Law Review, p. 512 (1975), vol. 12.
(18) ° On this point, see J. Rideau and J.-L. Charrier, op. cit., at pages 183 to 186.
(19) ° Judgment in Case 281/82 Unifrex v Commission and Council [1984] ECR 1969.
(20) ° Paragraph 11 of the judgment.
(21) ° For a discussion in legal literature, see R. Joliet, op. cit., pages 250 to 258; M. Waelbroeck, J.-V. Louis, D. Vignes, J.-L. Dewost and G. Vandersanden, op. cit., pages 266 to 297; J. Boulouis and R.-M. Chevallier, Grands arrêts de la Cour de justice des Communautés européennes, Vol. 1, Fifth Edition 1991, p. 412 et seq.
(22) ° R. Joliet, op. cit., p. 250-251; M. Waelbroeck, J.-V. Louis, D. Vignes, J.-L. Dewost and G. Vandersanden, op. cit., p. 279.
(23) ° A reference which, furthermore, has been obligatory since the judgment of the Court in Case 314/85 Foto-Frost v Hauptzollamt Luebeck-Ost [1987] ECR 4199.
(24) ° For an application of this solution see: judgment in Case 96/71 Haegeman v Commission [1972] ECR 1005; judgment in Case 26/74 Roquette Frères v Commission [1976] ECR 677; judgment in Case 46/75 IBC v Commission [1976] ECR 65; judgment in Case 133/79 Sucrimex, cited above; judgment in Case 217/81 Interagra v Commission [1982] ECR 2233.
(25) ° See, in particular, the following: judgment in Case 5/71 Zuckerfabrik Schoeppenstedt v Council [1971] ECR 975; judgment in Joined Cases 9 and 11/71 Compagnie d' Approvisionnement v Commission [1972] ECR 391; judgment in Case 43/72 Merkur v Commission [1973] ECR 1055; judgment in Case 153/73 Holtz and Willemsen v Council and Commission [1974] ECR 675; judgment in Case 74/74 CNTA v Commission [1975] ECR 533; most recently, judgment in Case 81/86 De Boer Buizen v Council and Commission [1987] ECR 3677; judgment in Case 175/84 Krohn v Commission [1986] ECR 753.
(26) ° Case 90/78 Granaria v Council and Commission [1979] ECR 1081.
(27) ° At p. 1099.
(28) ° Case 175/84, cited above.
(29) ° Case 175/84, cited above, at paragraph 27 of the judgment.
(30) ° Case 314/85, cited above.
(31) ° Article 12 provides that Articles 92, 93 and 94 of the Treaty shall apply, in the field covered by this directive, to national aid other than that provided for in Articles 3 and 5 .
(32) ° Judgment in Case 300/86 Van Landschoot v Mera [1988] ECR 3443, at paragraphs 22, 23 and 24.
(33) ° Judgment in Case C-37/89 Weiser v Caisse Nationale des Barreaux Français [1990] ECR I-2395.
(34) ° With regard to quellmehl: judgment in Joined Cases 117/76 and 16/77 Ruckdeschel and Others v Hauptzollamt Hamburg-St. Annen; Diamalt v Hauptzollamt Itzehoe [1977] ECR 1753; with regard to gritz: judgment in Joined Cases 124/76 and 20/77 SA Moulins et Huileries de Pont-à-Mousson v ONIC; Société Coopérative Providence Agricole de la Champagne v ONIC [1977] ECR 1795.
(35) ° Judgments in Joined Cases 261 and 262/78 Interquell Staerke-Chemie and Diamalt v Council and Commission [1979] ECR 3045, and in Joined Cases 64 and 113/76, 167 and 239/78, 27, 28 and 45/79 P. Dumortier Frères SA and Others v Council [1979] ECR 3091.
(36) ° At paragraph 6 of each judgment.
(37) ° On this point see the judgment of the Court of Appeal (page 10) which states as follows: The exercise of the Minister' s functions under paragraphs 23(2) and 26 are administrative public law functions which would only be reviewable in judicial review proceedings under R.S.C.O. 53 on the well-known principles in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] l KB 223 .
(38) ° I would refer on this point to the treatment of this question in my Opinion in Joined Cases C-87, C-88 and C-89/90 Verholen and Others v Sociale Verzekeringsbank Amsterdam, in particular at paragraphs 11 to 22.
(39) ° Annex 2 to the application, judgment of the Court of Appeal, p. 30.
(40) ° My emphasis.
(41) ° Judgment of the Court of Appeal, p. 9.
(42) ° Which provides as follows:
(1) If the appropriate Minister is satisfied that an application for a decommissioning grant meets the foregoing requirements of this Part, he may approve the application.
(2) An approval by the appropriate Minister under sub-paragraph (1) of this paragraph may be made subject to such conditions as the appropriate Minister sees fit .
(43) ° Judgment of the Court of Appeal, p. 40.
(44) ° Case 5/71, cited above, at paragraph 11 of the judgment.
(45) ° There is no dispute that these are rules of law for the protection of individuals: with regard to the protection of legitimate expectations, see judgment in Case 97/76 Merkur v Commission [1977] ECR 1063.
(46) ° Judgment in Joined Cases 116 and 124/77 Amylum v Council and Commission [1979] ECR 3497, at paragraph 13.
(47) ° Ibid.
(48) ° R. Joliet, op. cit., p. 269-271; J. Rideau and J.-C. Charrier, op. cit., p. 189.
(49) ° R. Joliet, op. cit., p. 270, paragraph 2; J. Rideau and J.-C. Charrier, op. cit., p. 189.
(50) ° J. Rideau and J.-C. Charrier, op. cit., p. 189.
(51) ° Judgment in Joined Cases 5, 7 and 13 to 24/66 Kampffmeyer and Others v Commission [1967] ECR 245.
(52) ° Joined Cases 5, 7 and 13 to 24/66, cited above, at 266.