Opinion of Mr Advocate General Darmon delivered on 4 February 1992. - James Joseph Cato v Commission of the European Communities. - Non-contractual liability - Common fisheries policy - Non-payment of a final cessation premium in respect of a fishing vessel. - Case C-55/90.



European Court reports 1992 Page I-02533



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. The re-opening of the oral procedure in the action brought by Mr Cato against the Commission for non-contractual liability has led me to add the following points to the Opinion which I delivered in this case on 18 June 1991. With regard to the remaining issues in the case, and in particular that concerning the admissibility of the action, I would of course refer the Court to my earlier Opinion.

2. The first matter on which I would like to comment concerns the divergence of the United Kingdom Scheme from Directive 83/515/EEC. (1)

3. For the purpose of establishing such divergence, the applicant relies on two provisions in the Scheme. The first, he claims, conferred on the appropriate Minister a discretionary power which was not provided for in the Directive; the second, he argues, imposed an extra condition to those contained in the Directive, namely, the obligation on the owner of the vessel to satisfy the appropriate Minister of the permanent nature of the withdrawal of that vessel from the Community fishing fleet.

4. I set out in my earlier Opinion the reasons why I do not believe that the first of those arguments can be accepted. (2) However, I then went on to express my view that, in so far as the United Kingdom Scheme transferred to the owner of the vessel the obligation to ensure that the withdrawal is permanent ° an obligation which the Directive imposes on the Member State ° it departs significantly from the Directive. If it had been in accordance therewith, the damage suffered by Mr Cato would never have materialized. (3) So far as these two points are concerned, I would refer the Court to my first Opinion.

5. It was argued at the re-opening of the hearing (4) that the Directive did not prohibit the introduction of national decommissioning schemes which imposed more restrictive conditions, provided that such schemes enabled the object of the Directive to be attained, namely, a reduction in the Community fishing fleet. It was also argued that the Directive was not intended to create rights for individuals.

6. I find those two arguments unconvincing.

7. In the first place, it is difficult to see why, if the conditions governing the grant of the premium could be determined by national authorities, the Directive contains precise and detailed provisions at Articles 5 and 6 with regard to measures of permanent reduction and also makes the very existence of national schemes subject to approval by way of a Commission decision adopted, in particular, on the basis of compliance by such schemes with the Directive.

8. Secondly, it ought to be noted that many administrative measures, whether adopted at national or Community level, are capable of creating subjective rights for the benefit of individuals, even if that is not their objective. One need think no further than those adopted by the Community in the area of agriculture, such as vine grubbing premiums, the object of which obviously is not to confer subjective rights on vinegrowers, but rather to reduce production within the Community of medium quality wines. Is it nevertheless possible to argue that the economic operator who satisfies all the conditions laid down in order to benefit from the measure in question cannot rely on the Community text which introduced that measure on the ground that its objective does not in any way concern individuals? The answer is clearly "no", since it is not possible, having regard only to the result to be attained, to ignore the means chosen to reach that objective. To phrase it differently, if a legal measure, whether national or Community, has the effect of creating rights for the benefit of individuals, such rights must be respected, even if the objective of the measure lies in a different direction.

9. Admittedly, Member States were not obliged to introduce such measures to reduce the Community fishing fleet; however, if they did so, Article 7(1) of the Directive obliged them to adopt a scheme which would conform to it. In so far as such financial aid derogates from the requirements of Articles 92, 93 and 94 of the EEC Treaty, it was also necessary that such aid should be granted in Member States subject to the same conditions; if this were not done, the equality of treatment between the fishing industries of the various Member States would have been upset. Thus, if one were to accept the view put forward by the United Kingdom, it is difficult to see how such equality of treatment could otherwise be ensured, given that certain national industries benefit from more favourable conditions for the restructuring of their fishing fleets than others.

10. I would for those reasons repeat my previous view that the Scheme does not comply with the Directive.

11. My second observation relates to the wrongful conduct on the part of the Commission. In my Opinion of 18 June 1991, I outlined a distinction based on the fact that the present case did not involve the Commission in the adoption of a legislative measure relating to choices of economic policy. Consequently, the established case-law of the Court, requiring as it does in this regard "a sufficiently serious breach of a superior rule of law for the protection of the individual", (5) could not apply in the present circumstances. Case C-282/90 Industrie - en Handelsonderneming Vreugdenhil BV v Commission gave me the opportunity to develop this distinction in more detail. At paragraphs 41 to 58 of my Opinion in that case, I set out the reasons for which I suggested that the Court should abandon the requirement of serious wrongful conduct if the measure which affected subjective rights did not involve choices of economic policy. The restrictive view adopted by the Court in this area may, in the Court' s own words, be explained

"by the consideration that the legislative authority, even where the validity of its measures is subject to judicial review, cannot always be hindered in making its decisions by the prospect of applications for damages whenever it has occasion to adopt legislative measures in the public interest which may adversely affect the interests of individuals". (6)

12. As I emphasized in this regard, such a requirement of what amounts to arbitrary behaviour, in order to give rise to non-contractual liability on the part of the Community, is justified in cases where the Community institution possesses a wide margin of discretion, as in the case of economic policy, but is not justified where the conditions for the exercise of the power conferred on the institution are clearly and precisely defined. In such circumstances, I believe that any infringement of the legislative measure in question is capable of involving the liability of the Community, on condition, however, that a subjective right has indeed been detrimentally affected.

13. In the present case, the decision which the Commission was required to adopt was one in which its margin of discretion was very narrow. According to Article 7(1) of the Directive, the Community institution was required to grant or refuse its approval of the proposed national scheme, on the basis of the conformity of that scheme with the Directive and account being taken of the other structural measures existing or anticipated in the fisheries sector. Consequently, it was a question of a strictly legal assessment based on the comparison of the provisions of the Directive and those of the national scheme in question. I do not consider it necessary, in order to penalize the mistakes made in the course of that assessment and to rectify the harmful consequences thereof, to require proof that the Commission, by approving a national scheme which did not comply with the Directive, infringed in an overt manner a superior rule of law intended for the protection of individuals. I believe that it is sufficient to record that by approving the Scheme it breached Article 7(1) of the Directive and thereby committed a fault of such a nature as to involve, in the appropriate case, the liability of the Community. (7)

14. In the alternative, should the Court wish to apply in the present case the principles derived from its case-law in respect of legislative measures involving choices of economic policy, I would refer to Paragraph 41 of my earlier Opinion in which I discussed a breach by the Commission of the principles of legitimate expectation and legal certainty.

15. My third and final comment relates to the causal connection between the wrongful conduct of the Commission and the damage suffered by Mr Cato. It is, in my opinion, necessary to define precisely this damage. I do not believe that it lies in the mere fact that he did not receive the premium since, as I have already pointed out, the introduction of a decommissioning scheme was not compulsory. Rather, it lies in the disappointment of the legitimate expectation which Mr Cato was entitled to have by reason of the introduction of the Scheme. Having complied with all the conditions set out in the Directive, Mr Cato sold his boat, but did not receive a premium because there was a discrepancy between the Scheme and the relevant Community provisions. Quite literally, it was his legitimate expectation which was affected, since he was entitled to expect in the circumstances that the national scheme had been approved by the Commission on the basis, in particular, of its conformity with the Directive. The discrepancy between the Scheme and the Directive was made possible only by the wrongful conduct of the Commission.

16. The causal connection between the conduct of the Commission and the damage, as defined, incurred by Mr Cato therefore appears to me to be beyond dispute.

17. Undoubtedly, it is true that the wrongful conduct on the part of the Commission is not the only such example in this case. The United Kingdom itself also acted wrongfully in adopting a scheme which did not comply with the directive. We are thus faced with a delicate situation in which concurrent faults have resulted in damage. It is a long time since the case-law of the Court resolved this particular difficulty. In this connection, I referred in my first Opinion (8) to the judgment of the Court in Kampffmeyer and Others v Commission, (9) in which, after accepting the principle that a Community institution could in fact be liable, the Court 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". (10) It is thus, as I said, 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.

18. This case-law has been criticized by a number of legal writers on the ground that it treats the liability of the Community as a subsidiary liability. (11) I take the view that the present case provides an opportunity for the Court to demonstrate that the principles laid down in Kampffmeyer result, in certain special circumstances where reparation can no longer be obtained from national courts, in the imposition on the Community of the obligation to ensure that the individual whose subjective rights have been infringed will be adequately compensated.

19. The reason for the absence of any compensation by the Member State at fault must be taken into account only if it is due to the behaviour of the applicant himself. In such a case, the applicant may not rely on the fact that he has failed to initiate the relevant domestic legal proceedings or that he has done so out of time.

20. However, for the reasons which I set out at Paragraph 47 of my earlier Opinion, I do not believe that the Court need embark in the present case upon a complex analysis of the possible negligent acts and omissions and their interaction with the wrongful conduct of the Commission, since such negligent acts or omissions could not have had any demonstrable influence on the materialization of the damage.

21. These few additional observations lead me to confirm in all respects the conclusions to my Opinion of 18 June 1991.

(*) Original language: French.

(1) ° Council Directive 83/515/EEC of 4 October 1983 concerning certain measures to adjust capacity in the fisheries sector (OJ 1983 L 290, p. 15).

(2) ° Paragraphs 31 and 32.

(3) ° Paragraphs 33, 34 and 35.

(4) ° By the United Kingdom.

(5) ° See, for example, the judgment in Joined Cases 116 and 124/77 Amylum and Tunnel Refineries v Council and Commission [1979] ECR 3497, at paragraph 13.

(6) ° Judgment in Joined Cases 83 and 94/76, 4, 15 and 40/77 HNL and Others v Council and Commission [1978] ECR 1209, at paragraph 5.

(7) ° It does not appear to be absolutely necessary at this point to refer to Article 155 of the EEC Treaty, which is general in its nature, since there is in the present case a specific rule ° Article 7(1) of the Directive ° which imposes on the Commission the obligation to ensure that the Directive is strictly applied, a fact which demonstrates that this latter provision is in any event the specific expression of the principle established by Article 155.

(8) ° At Paragraph 44.

(9) ° Judgment in Joined Cases 5, 7 and 13 to 24/66 [1967] ECR 245.

(10) ° At p. 266.

(11) ° J. Boulouis et R.-M. Chevallier, Grand arrêts de la Cour de justice des Communautés européennes, Vol. 1, Fifth Edition, 1991, p. 424; J. Rideau and J.-L. Charrier, Code de procédures européennes, Litec, 1990, p. 193.