Opinion of Mr Advocate General Jacobs delivered on 11 October 1989. - Briantex Sas and Antonio Di Domenico v European Economic Community et Commission of the European Communities. - Non-contractual liability for incorrect information. - Case 353/88.



European Court reports 1989 Page 03623



Opinion of the Advocate-General

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My Lords,

1 . In these proceedings, the Italian textile company, Briantex SAS (" Briantex ") and the managing director of Briantex, Mr Di Domenico, seek compensation under Article 215(2 ) of the Treaty against the EEC and the Commission in respect of damage allegedly suffered as a result of the provision of misleading information .

2 . Between 29 February and 4 March 1988 an EEC-China Business Week was held in Brussels under the aegis of the Commission . The business week was organized by Price Waterhouse, Belgium (" Price Waterhouse ") acting under a contract made with the Commission . Under the contract, dated 18 June 1987, Price Waterhouse inter alia undertook to promote the business week by providing information to interested circles and to participate in drawing up a detailed programme, including the organization of individual meetings between businessmen . These tasks were to be carried out on the basis of general guidelines drawn up by the competent Commission officials and in close consultation with them .

3 . By a standard letter dated 29 December 1987, the Institut italien pour le commerce extérieur ( Italian Institute for Foreign Trade ), based in Brussels, sent information concerning the business week, together with a brochure and application form, to Italian business circles . The letter stated that there would be present at the business week 10 Chinese import-export corporations and regional and provincial representatives "with decision-making powers ". The letter invited any Italian firms interested in bilateral meetings to complete the questionnaire attached to the brochure and return it directly to the agency charged with the organization of the business week .

4 . Following receipt of this letter, Mr Di Domenico registered for the business week . In completing the questionnaire attached to the registration form, he stated that his company' s main field of activity was in relation to embroidered table-cloths, doilies and handkerchiefs, and that he wished to have a bilateral meeting with representatives of the China National Arts and Craft Import-Export Corporation (" CNART "), which deals in textile products . A meeting was duly organized by Price Waterhouse on 29 February 1988, and Mr Di Domenico attended in the hope of concluding a contract for the import of embroidered handkerchiefs . However, according to the applicants, at the meeting the Chinese representatives informed Mr Di Domenico that it was impossible for them to do business with him because the Italian import quota for the type of goods in question was already exhausted . In this connection, it should be mentioned that the agreement between the European Economic Community and the People' s Republic of China on trade in textile products, initialled on 18 July 1979 and approved by Council Decision No 86/669/EEC ( Official Journal 1986, L 389, p . 1 ) provides in Article 3 for the fixing by China of annual quotas on the export to the Community of the products listed in Annex III . The export of such products ( which include cotton handkerchiefs ) is subject to a system of double control by the exporting and importing country set out in Protocol A to the agreement .

5 . Briantex and Mr Di Domenico promptly brought proceedings before the tribunal de première instance, Brussels, seeking damages against Price Waterhouse and against the EEC and the Commission under Article 1382 of the Belgian Civil Code . Shortly afterwards they also lodged the present action for damages against the EEC and the Commission, seeking BFR 96 380 in respect of Mr Di Domenico' s travel and hotel expenses, BFR 200 000 for four wasted days in Brussels, and BFR 500 000 in respect of loss of anticipated business .

6 . Essentially, in these proceedings the applicants argue that the Commission was at fault in providing, through its agents Price Waterhouse, misleading information to the effect that the Chinese representatives were in a position to do business whereas in fact, because of the exhaustion of the relevant quota, this was not the case . Since ( according to the applicants ) the Commission was responsible for monitoring quotas on trade in textiles with China, it should have been aware of the true position and should have informed the applicants accordingly .

7 . The Commission objects to the admissibility of the action against itself, arguing that the proceedings should be directed only against the EEC, represented by the Commission . It also objects to the admissibility of the action in so far as it is brought by Mr Di Domenico, arguing that he has no interest in bringing proceedings in his own right . On the procedural plane, the Commission, invoking the principle of lis pendens, argues that the Court should stay the proceedings pending the outcome of the parallel actions brought by the same applicants against the same defendants in the Belgian courts . The Commission also argues that a stay is necessary in view of the related national action against Price Waterhouse .

8 . As regards the substance, the Commission argues that the organization of the business week was the responsibility of Price Waterhouse acting for its own account under a contract for services ( contrat d' entreprise ) and not as the Commission' s agent : any wrongful act or omission on the part of Price Waterhouse was therefore not imputable to the Community . In any event, the Commission disputes the charge that the applicants were provided with misleading information : at no stage was it suggested by anyone to the applicants that they would definitely be able to conclude contracts at the business week . The Commission adds that even if it had been asked at the relevant time about the availability of quota, it would not have been able to give a precise answer . This is because under the agreement between the EEC and China on trade in textile products mentioned above it is for the competent Chinese and Member State authorities, when granting export licences or import authorisations on quota-restricted goods, to check that the quota has not been exceeded . Any checks carried out by the Commission are conducted after the event, on the basis of the information provided by the Member State authorities . In addition, in the Commission' s view, the applicants, as experienced operators in the textiles area, should have been aware of the existence of quotas and should have made their own inquiries about the conditions of trade with China .

9 . As regards the admissibility of the action against itself, the Commission is no doubt formally correct in stating that proceedings under Article 215 of the Treaty should in principle be directed against the relevant Community, represented by the institution or institutions against which the matter giving rise to liability is alleged ( see Joined Cases 63 to 69/72 Werhahn v Council (( 1973 )) ECR 1229, paragraphs 6 and 7 ). However, in practice the Court has, as in those cases, accepted actions brought directly against the relevant institution or institutions . The error, if any, is one of pure form which does not affect the substance of the application and I do not consider that it is necessary to declare any part of the action inadmissible on that ground .

10 . As to the standing of Mr Di Domenico, I agree with the Commission that he has no individual interest in bringing proceedings . He plainly attended the business week in his capacity as managing director of Briantex and not in his personal capacity, and any damage resulting from that participation is therefore a matter for Briantex . The point is one of somewhat more substance than the previous point and I would therefore declare the action inadmissible in so far as it is brought by Mr Di Domenico .

11 . In my view, it is unnecessary for the Court to rule on the Commission' s request for a stay in these proceedings pending the outcome either of the parallel action against the EEC and the Commission or the related action against Price Waterhouse in the Belgian courts . That is because this case can be readily disposed of on its own merits .

12 . I also consider it unnecessary to consider the preliminary question which arises on the merits of this case, namely, whether Price Waterhouse, in undertaking the organization of the business week, was acting as the agent of the Commission and whether in consequence, in accordance with the general principles common to the laws of the Member States referred to in Article 215(2 ) of the Treaty, its acts or omissions are imputable to the Community . The issue of imputability is only relevant if there is in the first place a wrongful act or omission, and in my view the applicants have not succeeded in establishing that this is the case .

13 . In my opinion, on the facts of this case, a wrongful act could only have arisen if Price Waterhouse ( acting for the Commission ) had represented to the applicants that they would definitely be able to make contracts for the purchase of specific quantities of the goods in which they were interested at the business week . However, no such representation was made . The information disseminated by the Italian Institute for Foreign Trade which induced the applicants to attend the business week ( and which, it is not denied, did originate with Price Waterhouse ), was of a general nature and contained no specific representation of the type mentioned . Nor does it assist the applicants to analyse the alleged fault in terms of a wrongful omission, i.e . a failure to warn the applicants or put them on notice that the relevant quota was already taken . The fact that the applicants indicated on the application form that they were interested in textile products ( including handkerchiefs ), and that they requested a meeting with representatives of the CNART, was not sufficient to put the organizers of the business week on notice that the applicants expected to make firm contracts for the import of specific quantities of handkerchiefs . Nor is there anything to suggest that, if the quota had not already been taken, the applicants would have been certain to be able to make the desired contract with their Chinese counterparts, since the latter remained free in their choice of contracting partners . In fact, it appears from the file that the CNART representatives indicated to Mr Di Domenico that they had a long-standing arrangement for the export of the total quantity of handkerchiefs subject to the Italian quota to another Italian textiles firm .

14 . I would add that the applicants were invited, in a letter from the Court, to produce any evidence, apart from the standard letter from the Italian Institute for Foreign Trade, which might have led them to the conviction that they would certainly be able to conclude contracts with Chinese representatives at the business week . However, the applicants failed to produce any such evidence .

15 . Accordingly, I am of the opinion that the Court should :

( 1 ) declare the action inadmissible in so far as it is brought by Mr Di Domenico;

( 2 ) for the rest, dismiss the action as unfounded;

( 3 ) order the applicants to pay the costs of these proceedings .

(*) Original language : English .