OPINION OF MR ADVOCATE GENERAL

VERLOREN VAN THEMAAT

DELIVERED ON 13 MAY 1982 ( 1 )

Mr President,

Members of the Court,

1. Introduction

My opinion in this case, Interagra, can be relatively short. I shall not examine, except in the most cursory fashion, Interagra's arguments on the substance of the case. Although it was my opinion in Case 45/81 Moksei, which is comparable in subject-matter, that the action in that case is admissible, I consider that this action is manifestly inadmissible. To demonstrate this I shall first summarize the facts and the submissions supporting the claim for damages brought under Article 215 of the EEC Treaty.

After that, besides setting out the obvious factual similarities with the Moksel case, I shall briefly set out the differences which are no less obvious. One of those differences, namely the fact that this case involves an action to establish the Community's non-contractual liability whereas the Moksel case concerns an application for a declaration that a similar kind of Commission regulation suspending the grant of export refunds on beef is void, I do not consider crucial. I shall therefore resist the temptation to analyse the decisions of the Court on the question of inadmissibility with respect to Articles 173 and 215 in order to determine whether in fact material differences do emerge here, as the Commission suggested at the hearing. On this point I would merely observe that in its decisions the Court has in principle recognized that the Community may incur non-contractual liability for damage caused by illegal legislative acts. To me this would suggest that if a regulation is found to be of general effect this is not a sufficient ground for concluding that proceedings brought under Article 215 are inadmissible. In the first place I consider the difference between the submissions put forward by Moksel and Interagra to be much more important than the difference in the legal bases of their actions. Interagra bases its action mainly on the wording of the relevant regulations, particularly that of Regulation No 2044/75. In its opinion the Commission misconstrued that regulation. A second difference between the two cases, which in my view is crucial in this action, is the fact that Moksel challenges the legality of the relevant regulations but Interagra expressly does not. At the hearing this was expressly confirmed for the purpose of these proceedings by Counsel for interagra when I questioned him on this point. Hence, as my closer analysis of Interagra's submissions will show, a decisive element as regards the admissibility of this action is in my opinion lacking.- I shall not therefore consider the question whether the fact that Interagra has also appealed to the competent national court against the refusal to grant it export refunds might be relevant nor shall I consider the decisions of this Court on that point.

In the fourth part of my Opinion I shall then examine more closely the submissions put forward by Interagra in support of its claim. I have already indicated in these introductory observations the most important conclusion to which that examination leads. In the light of the conclusions drawn from that examination and also in order not to anticipate the question which the competent French court has in the meantime referred to the Court of Justice on 24 March 1982 I shall, in the final part of my Opinion in which I also summarize my conclusion, consider only very briefly and provisionally the substance of the case.

2. The principal facts and the submissions made in support of the claim

2.1. The facts

Basically I adopt the applicant's own account of the principal tacts which it gave at the hearing. I shall, however, mention some other relevant facts which emerge from the file on the case and occasionally comment on their legal relevance.

On 13 November 1980 the Soviet purchasing agency Prodintorg organized a public invitation to tender for the delivery of 100000 tonnes of butter and 15000 tonnes of butter-oil. Delivery of those products was to be spread over the period from January 1981 to February 1982. Tenders had to be submitted to Prodintorg by 25 November 1980 and tenderers were to remain bound by their tenders until December 1980.

Such tenders are of course based on a price of which the export refunds fixed by the Commission form a crucial element. On 13 November 1980 the amounts of those refunds were fixed for butter and other products in the annex to Commission Regulation No 2943/80. That regulation was published in the Official Journal on 14 November 1980. It entered into force on the same day. According to the penultimate recital in its preamble one of the considerations on which that regulation is based is this, and (I quote): “In order to make it possible for operators to conclude delivery contracts for exports to be carried out as from 1 January 1981, it proves necessary ... to fix a special refund to be valid only in the context of advance fixing for exports carried out as from 1 January 1981”. The comment I would make here is that in invoking the principle of legitimate expectation Interagra partly relies on this aspect of the facts.

Interagra's reply of 17 November 1980 by which it tendered for the delivery of 25000 tonnes of butter was based on the legal position which I have described. Interagra thus based its tender on an amount of refund which the Commission had fixed just three days before and which was expressly stated to cover a period which did not start until 1 January 1981. The other documents in the file show that Interagra's tender was unconditional. In particular, Interagra was apparently so certain that the suppositions on which its tender was based were correct that the tender contained no conditions suspending the tender or discharging Interagra in the event of the Commission's amending the refund rules before the final conclusion of the contract or the closing date for tenders (25 November 1980). The documents in the file show that even when the contraa was concluded on 16 December, by which time its application for advance fixing had already been refused, Interagra did not stipulate any reservations.

On the same day on which it submitted its tender, namely 17 November 1980, Interagra applied to the competent French intervention agency, the Fonds d'Orientation et de Régularisation des Marchés Agricoles [Agricultural Markets Guidance and Stabilization Fund, hereinafter referred to as “the French Fund”] for certificates fixing export refunds in advance in accordance with Commission Regulation No 2943/80 and furnished the security required. Three days later, on 20 November 1980, that is to say just six days after that regulation had entered into force, the Commission, by Regulation No 2993/80, suspended the advance fixing of export refunds on butter from 20 to 27 November 1980.

By letter of 28 November 1980 the French Fund informed Interagra that the applications which it had submitted on 17 November were devoid of purpose. At the same time Interagra's security was returned.

Despite a written request from Interagra for a review of that decision the French Fund, after consulting the Commission, refused by letter of 24 December 1980 to reserve it. Copies of all the relevant documents are in the file.

Interagra thereupon made an application on 21 January 1981 first to the competent administrative court in Paris for the annulment of the French Fund's decision. As I mentioned earlier, that application led to the submission by the French court, for a preliminary ruling, of the questions received at the Registry of this Court on 24 March 1982 (Case 109/82). Some months later and parallel to the application to the French court Interagra lodged with this Court the present claim for damages based on the Commission's non-contractual liability for the French Fund's decision. In point of fact Interagra believes on the basis of the telex messages exchanged between the French Fund and the competent directorate-general of the Commission that the French Fund acted on instructions from the Commission. In order that the history of the claim for damages may be properly understood I shall now give more details of the telex messages exchanged.

In the first telex message of 19 November 1980 the Commission officer concerned had already drawn the French Fund's attention to the fact that the regulation suspending the advance fixing of expon refunds meant that lications for advance fixing of export refunds submitted after 17 November were devoid of purpose by virtue of Article 3 (3) of Regulation (EEC) No 2044/75 and must therefore be refused and the security returned.

Later, in a telex message ( 2 ) referred to by Interagra, the French Fund first of all asked the competent Commission officer to confirm whether the Commission's telex message also applied to refunds fixed in advance under Article 6 of Regulation (EEC) No 2044/75. That first question is preceded by the following explanatory statement, which figured prominently in the proceedings :

“However, under Article 19 of Regulation No 193/75 certificates applied for under Article 6 of Regulation No 2044/75 are not issued until the day on which the applicant has been awarded a contract and only in respect of the quantity for which the applicant has been awarded a contract. Therefore Article 3 (3) does not seem to cover applications for provisional certificates lodged in connection with governmental invitations to tender.”

The first question, by which the French Fund asks for confirmation that the previous telex message of 19 November applies to the cases in hand, is followed by a second question which reads:

“(2) I also note that according to Article 2 (2) of the Seventeenth Amendment to Regulation (EEC) No 2044/75 the duration of advance fixing of provisional certificates applied for prior to 22 November but issued after that date is reduced to five months. Some traders who lodged provisional applications before advance fixing was suspended from 12 to 14 November have told my officers that they are astonished that such a measure should retroactively alter the bases on which they have irrevocably and in good faith submitted their tenders. Please inform me of the legal factors on which I should base my reply to them.”

The answer to those two questions of the French Fund came in a telex message of 27 November 1980 sent by the Director-General for Agriculture. It is appended to the Commission's defence as Annex IV. Because of its importance for the case I shall quote it in full:

“As regards your question under (1) I confirm that the first subparagraph of Article 3 (3) of Regulation (EEC) No 2044/75 covers all applications for export certificates which involve advance fixing of the refund on the products concerned and which were being processed no more than five working days before the advance fixing of the refund was suspended.

The reason for this is that no exception is made for applications for certificates submitted in connection with invitations to tender. Those applications are, however, special in so far as if advance fixing is suspended after the period of five working days has expired the suspension may no longer affect them even if they are still in the course of being processed at the time of suspension, pending the outcome of the invitation to tender.

As regards point (2) of your telex message I should inform you that as far as previous applications for certificates are concerned the reduction of the duration of validity applies only to applications which were submitted before 22 November and in respect of which the period of five working days had not yet expired on 22 November 1980.

They are in fact applications for certificates involving the advance fixing of the refund on the products mentioned in headings 04.02 A II (b) (1) and 04.02 B I (b) 2 (aa) of the Common Customs Tariff which were lodged after 14 November 1980.

As far as those applications are concerned the reduction of the period of validity of the certificate is a ‘special measure’ within the meaning of the first subparagraph of Article 2 (3) of Regulation (EEC) No 2044/75.

To avoid any misunderstanding the Commission will immediately submit to the Management Committee a draft regulation containing the above clarification”.

In my view the wording of the French Fund's first decision of 28 November 1980 refusing the application for an advance-fixing certificate and the wording of its letter of 24 December 1980 to Interagra wherein it refused to review that decision do not support Interagra's contention that in its letters the French Fund expressly referred to an instruction from the Commission. I here refer the Court to the copies of those letters which Interagra has appended to its application. As reasons for the refusal the letters refer only to the relevant regulations.

The French Fund did not use the phrase “instruction from the Commission” until it submitted its defence of 17 April 1981 in the proceedings before the French court. That probably explains why the claim for damages based on the Commission's non-contractual liability was lodged at this Court a few weeks after that date.

At the hearing it was confirmed in the clearest terms in the course of the argument put forward by Counsel for Interagra that Interagra bases the Commission's liablity solely on those instructions from the Commission, which were not mentioned by the French Fund until 17 April 1981, and therefore not on the illegality of the Commission regulations themselves. Rather, it was expressly stated at the hearing that Interagra would have no more objections to make if the interpretation the Commission places on the relevant regulations and Interagra challenges should turn out to be the correct one. On that part of Interagra's argument at the hearing I would comment that the question of interpretation can of course be examined in full when the questions submitted to this Court by the French court come to be answered. Even in the further course of his argument submitted at the hearing on 3 March Counsel for Interagra concentrated entirely on those questions of interpretation. However, as far as the question of admissibility is concerned, Interagra's answer to those questions of interpretation strikes me as irrelevant and I shall not, therefore, consider it here. As I have said, as far as the question of admissibility is concerned the only relevant fact is that in these proceedings Interagra is contesting the interpretation which the Commission places on its regulations but not their legality. The issue of admissibility is therefore reduced to the question whether an allegedly incorrect interpretation by the Commission of its regulations can by itself engage the Commission's non-contractuality liability for damage thereby caused.

2.2. The claim and the submissions supporting the claim

According to the application the claim is divided into the following four heads set out below:

Interagra asks the Court to :

(a) Declare and adjudge that it was wrongly refused the refund provided for by Regulation No 2943/80 to which it was entitled;

(b) Declare and adjudge that the damage which it suffered as a result amounts in total to FF 61956250;

(c) Declare and adjudge that the Commission is liable in the matter because the French Fund was only an intermediary and simply acted pursuant to Regulation No 2943/80 and on instructions from the Commission;

(d) Declare and adjudge that Regulation No 2993/80 adopted by the Commission on 19 November 1980 offends against the principle of legitimate expectation.

Of the submissions made in support of those four heads of claim I consider the following points to be of crucial importance as far as the question of admissibility is concerned:

First, the application, the reply and Interagra's oral argument at the hearing confirm that in the first head of claim the request is intentionally made that the Court should declare and adjudge that Interagra has an incontestible right to be granted the refunds applied for. The main emphasis of all Interagra's written and oral submissions is on the Commission's allegedly wrong interpretation of Regulations Nos 193/75, 2044/75, 3015/80 and 3137/80.

Secondly, as became clear at the hearing, the fourth head of claim, besides the first and third, also stands or falls by the correctness or incorrectness of the applicant's interpretation of those regulations, particularly Regulation No 2044/75. Should the Commission's interpretation of those regulations be correct the applicant does not challenge the legality of Regulation No 2993/80. The final words of Counsel for Interagra at the hearing were that it did not seek to establish the nullity of any regulation at that stage: “Je ne recherche pas la nullité d'un texte, à ce stade-là”.

Thirdly, the application, the reply and the submission made at the hearing confirm that the applicant does not base the Commission's liability on its regulations but only on its allegedly incorrect interpretation of those regulations and on the instructions allegedly given to the French Fund.

3. Similarities to and differences from Case 45/81 Moksel

The similarity to the Moksel case, on which I delivered my Opinion on 4 February of this year, lies above all in the fact that it too concerned a regulation suspending advance fixing of export refunds. Although the Moksel case concerned export refunds on beef the general impon of the regulations in question was much the same as that of the regulations at issue in this case. Another important point of similarity between both cases is that a telex message sent by the Commission having the same purport as the telex messages in the present case also played a prominent part in the Moksel case. Therefore the observations on that telex message contained in my Opinion and in the Court's judgment in Moksel are also relevant to this case. The first important difference between the two actions is that unlike the Moksel case this case turns, as I have said, on the interpretation of the relevant regulations in so far as they relate to governmental invitations to tender. According to Interagra's interpretation of those regulations, the suspension of advance fixing could not apply to governmental invitations to tender and for that reason the French Fund was wrong to refuse its application. A second and, as far as the admissibility of the claim is concerned, crucial difference between the two cases is directly related to the first difference. In this case, unlike the situation in the Moksel case, no challenge is made to the legality of the regulations suspending advance fixing or ofany other regulation at issue; only the actual refusal to grant a refund is challenged, on the ground that the regulation suspending advance fixing is not applicable. The specific refusal of the French Fund is said to be based on the incorrect interpretation (which the Commission is alleged to have prescribed) of the regulations which are not considered to be unlawful in themselves. I was able to consider Moksel's claim admissible simply because in my view, which, in its judgment of 25 March 1982, the Court did not share, all the relevant conditions laid down in Article 173, including, besides Moksel's being directly and individually concerned, the alleged illegality of the regulation suspending advance fixing, were fulfilled. In so far as Interagra bases the Commission's non-contractual liability under Article 215 on Regulation No 2993/80 suspending advance fixing Interagra ought to have challenged the legality of that regulation as well. However, it has not done so and does not need to do so because its interpretation of Regulation No 2044/75 implies that Regulation No 2993/80 is not applicable in its case.

4. Closer analysis of the claim

As I observed earlier, in the first head of its claim Interagra asks the Court to declare and adjudge that the refusal to grant it the export refund, to which it believes that it is entitled by virtue of Regulation No 2943/80, is illegal. Since it was the competent national intervention agency, the Fonds d'Orientation et du Régularisation des Marchés Agricoles, which refused the refund, Interagra has contested that decision at first instance before the French court having jurisdiction in the matter.

However, in the third head of its claim the applicant holds the Commission liable for that decision on the ground that the French Fund was only an extension of the Commission and acted pursuant to Regulation No 2943/80 and on the Commission's instructions. I have already observed that, according to the interpretation which Interagra places on Regulation No 2044/75 in particular, Regulation No 2993/80 did not apply to its application for certificates. Therefore that regulation, as so construed, could not b) itself make the Commission liable for the decision to refuse the refunds. Furthermore, the Commission's liability for unlawful acts, for the purposes of the second paragraph of Article 215 of the EEC Treaty, would presuppose the illegality of Regulation No 2993/80. However, as I have explained, Interagra does not challenge the legality of that regulation. It contends instead that that regulation is not applicable to its case.

As regards the third head of claim it only remains to examine the question whether the French Fund acted on the basis of a binding instruction from the Commission. However, the relevant telex messages from the Commission which I have cited contain no binding instructions but simply an interpretation of the regulations in question given at the request of the French Fund. To that extent the same findings at which I arrived in my Opinion and the Court arrived at in its judgment in the Moksel case as regards the telex message at issue in that case apply here. Moreover, in order to demonstrate that it is impossible, especially for its officers, to give binding instructions, the Commission in my opinion rightly refers on page 16 of its defence to the Court's judgment in Case 133/79 Sucrimex [1979] ECR 1299 and to the opinion of Mr Advocate General Reischl in that case.

As far as the fourth head of claim is concerned, I should remind the Court that at the hearing Interagra expressly confirmed that it does not challenge the legality of Commission Regulación No 2993/80. Thus an essential condition for the admissibility of the action is not fulfilled in the case of that head of claim either.

5. Final observations

5.1. The substantive aspects of the case

On the basis of the analysis which I have undertaken the action is in my opinion manifestly inadmissible. In order not to anticipate the proceedings for a preliminary ruling now pending before the Court I shall therefore content myself with the following brief remarks on the substance of the case. That Interagra has suffered damage or at any rate is in danger of suffering damage as a result of the course of events is quite plain. However, as the Commission's written submissions show, opinions may differ on the question of the quantum of damages.

On the matter of causality, I share the Commission's view that whether Interagra acted so carelessly in submitting an unconditional tender that it largely or wholly, and also in view of the time-limits which Prodintorg set for tenders, unnecessarily caused that damage itself, is the decisive question.

The question whether the regulation at issue, Regulation No 2993/80, might be illegal can arise only if Interagra's contention that that regulation is not applicable to its case is rejected in the proceedings for a preliminary ruling now pending before the Court and the Commission's interpretation of all the relevant regulations is accepted by the Court. Presumably that explains why Interagra has not expressly challenged the legality of any regulation at this stage, as I have already pointed out. Therefore, at this suge of the proceedings, only questions of interpretation arise and they should be answered only in the proceedings for a preliminary ruling and not in these proceedings.

5.2. Conclusion

My conclusion is that the application before the Court is inadmissible. It is not possible to deduce from the informatory telex messages sent by the Commission that it is liable for the contested refusal to grant the expon refunds. Its liability for the refusal may result solely from the regulations which it adopted and on which the refusal was based. In order to put in issue the Commission's liability for that refusal, for the purposes of the second paragraph of Article 215, Interagra ought therefore to have challenged the legality of those regulations and in particular that of Regulation No 2993/80. This it has not done. Therefore an essential condition for the admissibility of this application is not fulfilled.

Since the application must in my opinion be declared inadmissible Interagra should also be ordered to pay the costs.

( 1 ) Translated trom the Dutch.

( 2 ) The original language is French.