JUDGMENT OF THE GENERAL COURT (Second Chamber)
18 October 2011 (*)
(Non-contractual liability – Health policy – Biocidal products – Establishment of a list of active substances on the market – Adoption of regulations by the Commission by virtue of Directive 98/8/EC – Causal link)
In Case T‑561/08,
Jürgen Gutknecht, residing in Kirchheimbolanden (Germany), represented by K. Van Maldegem and C. Mereu, lawyers,
applicant,
v
European Commission, represented by P. Oliver and G. Wilms, acting as Agents,
defendant,
ACTION for damages seeking compensation for the loss suffered following the allegedly unlawful adoption by the Commission of various regulations pursuant to Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market (OJ 1998 L 123, p. 1) or, in the alternative, following the alleged failure by the Commission to adopt the measures necessary to ensure the right to protection of information supplied under that directive,
THE GENERAL COURT (Second Chamber),
composed of N.J. Forwood, President, J. Schwarcz (Rapporteur) and A. Popescu, Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 17 May 2011,
gives the following
Judgment
Background to the dispute
1        Peracetic acid (‘PAA’) is an active substance used in various industrial applications as a disinfectant and a bleaching agent. Bactria Industriehygiene-Service Verwaltungs GmbH (‘Bactria’) produced PAA and various products containing that substance for industrial customers.
2        Until 5 February 2008, the applicant, Mr Jürgen Gutknecht, was the main partner in and managing director of Bactria. On that date he transferred the company shares which he held in Bactria to the company S.
3        On 16 February 1998, Directive 98/8/EC of the European Parliament and of the Council concerning the placing of biocidal products on the market was adopted (OJ 1998 L 123, p. 1). That directive provided for the establishment at Community level of a list of active substances which may be used in biocidal products.
4        In particular, Article 16(2) of Directive 98/8 provides that the Commission is to commence a 10-year programme of work for the systematic examination of all active substances already on the market and their possible inclusion in the annex to that directive listing active substances approved at Community level. It is further provided in that article that the Commission is to adopt, by means of a regulation, all provisions necessary for the establishment and implementation of the work programme.
5        On 7 September 2000, the Commission adopted Regulation (EC) No 1896/2000 on the first phase of the programme referred to in Article 16(2) of Directive 98/8 (OJ 2000 L 228, p. 6). Article 6(2) thereof provides that all producers of an active substance, which was notified during the first phase of the work programme and for which the notification was accepted by the Commission, as well as all formulators of biocidal products containing such an active substance may start or continue to place on the market the active substance, as such, in the product type or types for which a notification has been accepted.
6        On 8 November 2000, Bactria brought an action for annulment of Regulation No 1896/2000, which was dismissed as inadmissible (order in Case T-339/00 Bactria v Commission [2002] ECR II‑2287).
7        Pursuant to Article 4(1) of Regulation No 1896/2000, PAA was notified before 28 March 2002 by the Peracetic Acid Registration Group (‘PARG’), established within the European Chemical Industry Council and comprising only some of the producers of that active substance, including Bactria.
8        The Commission accepted that notification by letter of 25 March 2003.
9        On 4 November 2003, the Commission adopted Regulation (EC) No 2032/2003 on the second phase of the 10-year work programme referred to in Article 16(2) of Directive 98/8 (OJ 2007 L 307, p. 1).
10      On 17 February 2004, Bactria and other companies producing active substances used in biocidal products brought actions for annulment of certain provisions of Regulation No 2032/2003. The action brought by Bactria was registered as Case T-76/04.
11      On 1 October 2004, the same applicants brought proceedings before the General Court seeking a declaration of the illegality of the refusal to act of the Commission, which had refused to amend certain provisions of Regulations No 1896/2000 and No 2032/2003, annulment of the letter by which it had refused to make the amendments requested, and an order that the Commission compensate them for the damage caused by the failure to make amendments. The action brought by Bactria was registered as Case T‑401/04.
12      On 4 December 2007, the Commission adopted Regulation (EC) No 1451/2007 on the second phase of the 10-year work programme referred to in Article 16(2) of Directive 98/8 (OJ 2007 L 325, p. 3). It repeals and replaces Regulation No 2032/2003.
13      By application lodged at the Court Registry on 14 March 2008, Bactria and several other manufacturers of active substances used in biocidal products requested annulment of several provisions of Regulation No 1451/2007. The action was registered under number T‑120/08.
14      By documents received at the Court Registry on 30 October 2009, Bactria discontinued the actions brought in Cases T‑76/04, T‑401/04 and T‑120/08. By orders of 16 December 2009 and of 12 January 2010, the President of the Seventh Chamber of the General Court ordered that the first two cases be removed from the Court register and that Bactria’s name be removed from the Court Register in the third case.
Procedure and forms of order sought by the parties
15      By application lodged at the Court Registry on 15 December 2008, Bactria and the applicant brought the present action.
16      By document registered at the Court Registry on 13 May 2009, the Commission requested that argument be limited to the principle of the incurring of non-contractual liability by the European Community. The Court decided to grant that request.
17      By a document lodged at the Court Registry on 22 September 2009, Bactria withdrew from the present action. By order of 27 October 2009, the President of the Seventh Chamber of the Court removed Bactria’s name from the Court Register in the present case.
18      The composition of the chambers of the General Court having been modified, the Judge-Rapporteur was assigned to the Second Chamber, to which this case was therefore allocated.
19      The applicant claims that the Court should:
–        order the Community to compensate him for the loss suffered, the amount of which was determined finally in his reply to written questions from the Court, namely EUR 1 671 500, or another sum capable of being established by the parties during the proceedings or by the Court ruling in equity, as a result of:
–        principally, the unlawful adoption of Article 6(2) of Regulation No 1896/2000 together with Regulation No 2032/2003 and Regulation No 1451/2007;
–        or, in the alternative, the Commission’s failure to fulfil its obligation to adopt the measures necessary to ensure the safeguard of the right to the protection of information submitted by the companies participating in the work programme;
–        in the alternative, by means of interlocutory judgment, rule that the Community is obliged to compensate the loss suffered and order the parties to produce to the Court, within a reasonable period from the date of the judgment, figures as regards the amount of the compensation agreed between the parties or, failing agreement, order the parties to produce to the Court within the same period their submissions with detailed figures in support;
–        order the Community to pay compensatory interest at the ‘default rate’ from the date of the loss suffered;
–        order the Community to pay ‘default interest’ of 8% or any other appropriate rate to be determined by the Court, calculated on the amount payable as from the date of the Court’s judgment until actual payment, and
–        order the Commission to pay the costs.
20      The Commission claims that the Court should:
–        dismiss the application as manifestly inadmissible in part and manifestly unfounded in its entirety;
–        order the applicant to pay the costs.
21      By document of 15 December 2010, the Court put questions to the parties. The applicant replied by a letter received at the Court Registry on 14 January 2011; the Commission by a letter received on 29 December 2010.
Law
22      First, it must be borne in mind that the Court is entitled to assess, according to the circumstances of each case, whether the proper administration of justice justifies the dismissal of the action on the merits without first ruling on the objection of inadmissibility raised by the defendant (Case C‑23/00 P Council v Boehringer [2002] ECR I‑1873, paragraphs 51 and 52, and Case T‑36/06 Bundesverband deutscher Banken v Commission [2010] ECR II‑0000, paragraph 32).
23      In the circumstances of the present case, the Court considers it necessary to begin by examining the pleas put forward by the applicant, without first ruling on the plea of inadmissibility raised by the Commission, since the action for compensation is in any event unfounded on the grounds set out below.
24      It must be borne in mind that it is settled case-law that in order for the Community to incur non-contractual liability under the second paragraph of Article 288 EC a number of conditions must be satisfied: the institutions’ conduct must be unlawful, actual damage must have been suffered and there must be a causal link between the conduct and the damage pleaded (Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16; Case T‑336/94 Efisol v Commission [1996] ECR II‑1343, paragraph 30; and Case T‑267/94 Oleifici Italiani v Commission [1997] ECR II‑1239, paragraph 20).
25      If any one of the abovementioned conditions is not satisfied, the action for damages must be dismissed in its entirety and it is unnecessary to consider the other conditions for non-contractual liability (Case C‑146/91 KYDEP v Council and Commission [1994] ECR I‑4199, paragraph 81, and Case T‑170/00 Förde‑Reederei v Council and Commission [2002] ECR II‑515, paragraph 37).
26      First, it is appropriate to examine the condition relating to the existence of a direct causal link between the allegedly unlawful acts at issue in the present case and the alleged damage.
27      The applicant submits that he suffered a loss when selling, on 5 February 2008, company shares which he held in Bactria. He argues that he would have been able to transfer those shares at a price of EUR 2 461 500, calculated on the basis of the value of the company in the light of the profits generated between 1999 and 2007, had companies D. and H. not ceased to obtain their PAA from the company, whereas he actually sold the shares for a price of EUR 790 000.
28      According to the applicant, the loss suffered on the sale of the shares which he held in Bactria was caused, principally, by the unlawful adoption of Article 6(2) of Regulation No 1896/2000, of Regulation No 2032/2003 and of Regulation No 1451/2007. He claims that companies D. and H. ceased their commercial relationship with Bactria after the publication of Regulation No 1896/2000 in the Official Journal of the European Communities due to the costs borne by the latter company as a participant in the review programme. Following the loss of those two clients, Bactria’s sales of PAA were reduced by half from 2000 and 2001, as was its gross sales margin. In the alternative, he argues that his loss is due to the fact that the Commission failed in its obligation to apply Article 12 of Directive 98/8, which provides in particular that information provided by an operator participating in the review programme is not to be disclosed to other applicants for authorisation for biocidal products or for inclusion of active substances in one of the annexes to that directive. Such a circumstance allowed companies which had not participated in the review programme to lower their prices and to eliminate Bactria from the market.
29      The applicant also argues that Bactria was not able to raise its prices between 2001 and 2006 to cover the costs of participation in the review programme and therefore to return to profitability. That situation is due to the competition from companies which did not participate in the review programme and from multinational companies which can sell PAA at no profit or at a loss.
30      In that regard, it must be borne in mind that the causal link required for the Community to incur non-contractual liability under the second paragraph of Article 288 EC is established where the damage is the direct consequence of the wrongful act in question (Case C‑331/05 P Internationaler Hilfsfonds v Commission [2007] ECR I‑5475, paragraph 23, and the judgment of 30 April 2009 in Case C‑497/06 P CAS Succhi di Frutta v Commission, not published in the ECR, paragraph 59).
31      In the present case, it is established that, by letters dated 8 November 2000 and 19 March 2001 respectively, companies D. and H. informed Bactria of their decision no longer to purchase PAA from it. It is apparent from those letters that the decisions of the two companies were motivated by Bactria’s increasing the sales price of PAA, because of its participation in the review programme. In its letter, company D. also pointed out that Bactria was not a global player and informed Bactria that it would henceforth be obtaining its supplies from two global companies.
32      In addition, it is apparent from the file that Bactria’s sales of PAA, which represented approximately 80% of its turnover in 1999, namely DEM 4 146 000 of a total of DEM 5 118 000, dropped significantly in 2000 and then in 2001, no longer representing in 2001 more than approximately 50% of the 1999 PAA sales, namely DEM 2 100 000. Furthermore, Bactria’s turnover from companies D. and H. fell from DEM 2 051 000 in 1999 to DEM 85 000 in 2001.
33      It follows from the findings in paragraphs 31 and 32 above, which are based on documents in the file which have not been disputed, that the direct causes of the considerable reduction in Bactria’s turnover and profit margin are the decisions by companies D. and H. to cease purchasing PAA from that company on the ground that it had not been in a position not to increase its prices following its participation in the review programme.
34      Moreover, it must be noted that, in its letter of 8 November 2000, company D. informed Bactria that it would obtain its supplies from global companies and it is apparent from the application that those companies also participated in the review programme.
35      Accordingly, firstly, Article 6(2) of Regulation No 1896/2000 is not, as such, the cause of the reduction in Bactria’s turnover and profit margin.
36      Accordingly, the loss allegedly suffered by the applicant on the sale of the shares which he held in Bactria is not, in any event, the direct consequence of the allegedly wrongful act, namely Article 6(2) of Regulation No 1896/2000.
37      Secondly, with regard to Regulations No 2032/2003 and No 1451/2007, the applicant stated at the hearing that the provisions of Article 3 and Article 4(2) of and Annex II to Regulation No 2032/2003 and the provisions which replaced them in Regulation No 1451/2007 are the cause of his alleged loss, on the ground that the Commission failed to amend, by those provisions, the tenor or scope of Article 6(2) of Regulation No 1896/2000.
38      The provisions of Regulations No 2032/2003 and No 1451/2007 referred to in the previous paragraph can in no way, in any event, be the cause of the applicant’s alleged loss, since Article 6(2) of Regulation No 1896/2000, which they did not amend, is not itself the cause of that loss, and it is on the sole ground of their failure to amend that provision that the applicant regards them as being the cause of his loss.
39      Thirdly, although the applicant complains of a failure by the Commission to ensure that Bactria’s right to protection of its information was upheld, pursuant to Article 12 of Directive 98/8, it must be held that, by that argument, he again calls into question the provisions of Article 6(2) of Regulation No 1896/2000 and those of Regulations No 2032/2003 and No 1451/2007 referred to in paragraph 37 above. On the grounds set out in paragraphs 34, 36 and 38, those various provisions cannot, in any event, be regarded as being the cause of the alleged loss suffered by the applicant.
40      Accordingly, the applicant has failed to show the existence of a direct causal link between, on the one hand, the adoption of Article 6(2) of Regulation No 1896/2000, Regulation No 2032/2003 and Regulation No 1451/2007 and the Commission’s failure to ensure that the right to protection of information, as laid down in Article 12 of Directive 98/8, was upheld and, on the other, the loss which he suffered on the sale of the shares which he held in Bactria.
41      Consequently, the action for damages must be dismissed.
Costs
42      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. Since the applicant has been unsuccessful, he must be ordered to pay the costs as applied for by the Commission.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Mr Jürgen Gutknecht to bear his own costs and to pay those of the European Commission.
Forwood
Schwarcz
Popescu
Delivered in open court in Luxembourg on 18 October 2011.
[Signatures]
* Language of the case: English.