7.

I should say at once that the Commission's main arguments to the effect that the judgments in Sucrimex and Interagra are applicable to this case must be upheld if only for practical reasons. It is worth examining in detail the arguments put forward by the parties on this point. The Commission points out that in both the cases cited its departments exerted a degree of influence upon the national intervention agencies by sending them telex messages which were ultimately followed in the intervention agencies' decisions. Nevertheless, in both the judgments the Court held that the intervention agencies' decisions were the sole source of the damage of which the importers complained. Such telex messages, the Court held, merely reflect the necessary cooperation between the Commission and the national bodies, and that cooperation cannot make the Community liable to individuals (Sucrimex, cited above, at paragraphs 22 and 23 of the decision; Interagra, cited above, at paragraphs 8 and 9). As I have said, Krohn disagrees. It argues in essence that the Court made its findings in Sucrimex and Interagra on the basis that the Commission's communications were not binding on the national bodies, whereas in this case the Commission is much more closely involved in the procedure laid down for the issue of import licences and its powers are sufficient to enable it to restrict the national body's freedom of action by means of a telex message. Krohn's argument is indisputably correct. The most that can be said against it is that even in this case it is the national body which decides on the importer's request and its power to do so cannot in all probability be denied it. The present degree of Community integration does not seem sufficient to deprive the Member States of their powers with regard to the implementation of an agreement such as that between the EEC and Thailand. Do these essentially formal considerations suffice to establish the inadmissibility of the action as they did in the two judgments cited? I am not altogether convinced that that is so. It remains the case, however, that the opposite conclusion gives me still greater cause for doubt. Suppose that, as Krohn advocates, the Court were to determine the issue of jurisdiction in the light of the specific rules applicable in each case by assessing either the powers which they confer upon the Commission and the national body or the actual exercise of those powers by each of them. It is obvious what the outcome would be: should the Commission's telex messages be framed as mere suggestions, the national court would have jurisdiction; yet the injured party would be compelled to come before this Court if he succeeded in proving that the national body's measure was merely the embodiment at national level of a decision imputable to the Commission. For my part, I can scarcely imagine a worse solution. It would require those concerned to pore over every document in the procedure leading to the measure adversely affecting them in order to establish whether the national body or the Commission made the greater contribution to its adoption. Clearly it would be difficult to reconcile the need for such an inquiry — which in any event might not yield a reliable answer because it is rare for the terms of the dilemma to be as clearly posed as in the case I have put — with the principle of legal certainty which requires that all rules, and rules conferring jurisdiction most of all, be defined in a clear and intelligible manner. On the other hand, the greatest degree of clarity and simplicity would be achieved if the Court were to decide that the decisions of national bodies are always and in every case the liability of the Member States and that the determination of liability falls within the exclusive jurisdiction of the national courts. In the result we are presented with two possible courses, one of which may seem excessively formalistic whilst the other, although theoretically more plausible, has disastrous practical consequences. As I have said, I would opt for the former, partly also because the difficulties to which it gives rise are in the last analysis surmountable. I have in mind of course cases where the Commission has the power to bind national authorities so that it would appear unjustified or indeed unjust to hold the Member States liable. In fact there is a remedy in such cases: the Member State may recover the money either in an action brought ad hoc against the Commission or, more conveniently, in the context of the auditing of EAGGF accounts. As far as I know, no legal provision or pronouncement of the Court stands in the way of such a procedure. One further point, which is drawn from the Commission's second argument, militates unequivocally in favour of the inadmissibility of the action. As the Court is aware, the Bundesanstalt's decision has been challenged before the Verwaltungsgericht, and that court's forthcoming judgment may contain an interpretation of the Community rules applicable to this case differing from the one which would be given by the Court of Justice. Anomalies of this kind would not be compatible with the system of the Treaty and in order to avoid them the Court has held, as it happens in the Sucrimex and Interagra judgments, that ‘a review of administrative acts of Member States in applying Community law is primarily a matter for national courts without prejudice to their power to refer questions for a preliminary ruling...’{Sucrimex, cited above, at paragraph 24; Interagra, cited above, at paragraph 10). In saying ‘primarily’, it seems to me that the Court implied that an action under Articles 178 and 215 of the EEC Treaty has an essentially subordinate role in relation to the legal remedies available at the national level, unless — and as the facts show, this is not the case here — it is the only form of legal protection open to the applicant.