II - 4883Joined Cases T-440/03, T-121/04, T-171/04, T-208/04,  
T-365/04 and T-484/04
Jean Arizmendi and Others
v
Council of the European Union and  
European Commission
(Non-contractual liability — Customs union — Proceedings for failure to fulfil 
obligations — Reasoned opinion — Abolition in the French legislation of the 
monopoly of the profession of ship brokers — Sufficiently  
serious breach — Causal link)
Judgment of the General Court (Third Chamber), 18 December 2009            I - 4887
Summary of the Judgment
1. Non-contractual liability  — Conditions  — Unlawfulness  — Commission not bringing 
 proceedings for failure to fulfil obligations
(Arts 226 EC and 288, second para, EC)
2. Actions for damages — Independent of an action for annulment — Purpose
(Arts 226, first para., EC and 288, second para., EC)
3. Non-contractual liability  — Conditions  — Sufficiently serious breach of a rule of law 
 intended to confer rights on individuals
(Arts 226 EC and 288, second para., EC)
SUMMARY — JOINED CASES T-440/03, T-121/04, T-171/04, T-208/04, T-365/04 AND T-484/04
II - 48844. Non-contractual liability — Conditions — Causal link — Concept
(Arts 226 EC and 288, second para., EC)
5. Actions for failure to fulfil obligations — Pre-litigation procedure — Purpose
(Art. 226 EC)
1  An action for damages based on the Com -
mi
ssion’s failure to institute infringement 
proceedings under Article 226 EC is in -
admissible   Since the Commission is un -
der no oblig
ation to initiate infringement 
proceedings under Article 226 EC, its de -
cision not to initiate such proceedings is 
not in any event unlawful, so that it can -
not give rise to non-contractual liabil -
ity on the part of the Community   Thus, 
since the Commission is under no oblig a-
tion 
to initiate infringement proceedings, 
its failure to do so cannot give rise to li -
ability on the part of the Community  
(see para   62)
2  An action for compensation is an inde -
p
endent form of action, with a purpose 
to fulfil within the framework of legal remedies
  Its purpose is to seek compen -
sa
tion for damage resulting from a mea s-
ure or from unlawful conduct attribut -
able to an institution  Therefore, irrespective of whether it con -
stitutes a challengeable act apt to lead to 
an action for annulment, any act of an 
institution, even though it was adopted by that institution in the exercise of a di s-
cretion, is in principle capable of for m-
ing the subject-matter of an action for compensation
  The discretion conferred 
on an institution does not have the con -
s
equence of releasing it from its oblig a-
tion to act in conformity both with the higher rules of law, such as the Treaty and the general principles of Comm u-
nity law, and with the relevant secondary legislation
  Where the legality of that act 
is challenged in an action for compensa-tion, t
he act is therefore capable of b e-
ing assessed against the yardstick of the obligations borne by that institution
  A 
contrary approach would run counter to a Comm
unity based on the rule of law 
and would render the action for compen -
sation ineffective since it would prevent the Court from assessing the legality of 
an act of an institution in such an action
 
Consequently, although, in the context  
of the powers which it derives from Article  226  EC, the Commission enjoys a  
discretion in deciding whether or not to 
initiate infringement proceedings and is 
not required to justify its decision and 
II - 4885ARIZMENDI AND OTHERS v COUNCIL AND COMMISSION
although it may address a reasoned opin -
ion to the Member State concerned in 
the exercise of its powers, it cannot be 
precluded that in very exceptional cir -
cumstances a person may be able to dem -
onstrate that such a reasoned opinion is vitiated with illegality constituting a suf -
ficiently serious breach of a rule of law 
that it is likely to cause damage to him
 
The fact that a reasoned opinion adopted 
by the Commission under the first para -
graph of Article 226 EC is not a measure intended to produce binding legal effects with respect to third parties and that, ac -
cordingly, that opinion is not a measure capable of forming the subject-matter of an action for annulment does not affect 
that assessment
 
(see paras 64-69)
3  Where the unlawfulness of a legal act is in 
issue, whether or not the non-contract -
ual liability of the Community is incurred 
depends on the existence of a sufficiently 
serious breach of a rule of law that is in-
tended to confer rights on individuals   
As regards that condition, the decisive c
riterion for establishing that a breach of 
Community law is sufficiently serious is that an institution manifestly and gravely disregarded the limits on its discretion
 Under the procedure for failure to fulil obligations as provided for in Art
-
icle 226 EC, only the Court has jurisdic -
tion to hold that a Member State has 
failed to fulfil its obligations under Com-
munity law   Thus, while the Commission 
enjoys a discretion in deciding whether or not t
o commence an action for fail -
ure to fulfil obligations, it cannot make a binding finding that there has been such a failure
  In so far as, in a reasoned opin -
ion, t
he Commission confines itself to 
adopting a position on the existence of a failure by a Member State to fulfil its obligations under Community law, the 
adoption of that opinion cannot entail a 
sufficiently serious breach of a rule of law 
 
intended to confer rights on individ -
uals  Accordingly, even the adoption by 
the Commission in a reasoned opinion of an inc
orrect position on the scope of 
Community law cannot constitute a suf -
ficiently serious breach capable of ren -
dering the Community liable  
On the other hand, if the assessments made in a reasoned opinion go beyond 
the determination of the existence of 
a breach by a Member State or if other action taken by the Commission on the 
occasion of infringement proceedings 
exceeds the powers conferred on it, for example if it wrongfully discloses busi -
ness secrets or information that harms a person’s reputation, those assessments or actions are capable of constituting a breach of such a kind as to render the 
Community liable
 
(see paras 74-78)
SUMMARY — JOINED CASES T-440/03, T-121/04, T-171/04, T-208/04, T-365/04 AND T-484/04
II - 48864  In an action for compensation, there is 
a causal link where there is a sufficiently 
dir
ect causal link between the impugned 
conduct of the institution and the loss pleaded, the burden of proof of which rests on the applicants
  The impugned 
conduct must thus be the decisive cause 
of the loss  
In infringement proceedings initiated by 
the Commission under Article  226  EC, 
the fact that, in the reasoned opinion, the 
Commission considered that the national legislation was incompatible with Com -
munity law — and that it may have been mistaken in that regard — is in reality im -
material, since that reasoned opinion did 
not require the Member State to amend 
its legislation
  In infringement procee d-
ing
s only a judgment of the Court can 
have such a binding effect  
Thus, in the absence of any binding effect of the reasoned opinion, in that the Com -
mission claims therein that a Member S
tate has failed to fulfil its obligations 
under Community law, that opinion can-not be regarded as the decisive cause of 
the loss arising from the amendment of 
the national legislation in question in ac -
cordance with the said reasoned opinion
 
(see paras 85, 90, 92-93)
5  The objective of the pre-litigation pr o-
c
edure provided for in Article 226 EC is 
to give the Member State concerned an opportunity to comply with its oblig a-
tions under Community law or to avail 
itself of its right to defend itself against 
the complaints made by the Commission
  
The Member State is thus under no ob -
lig
ation to follow that reasoned opinion 
but may, if it considers that the Com -
mission is wrong to accuse it of failing to fulfil its obligations, not comply with that 
opinion
 
(see para   87)