JUDGMENT OF THE GENERAL COURT (Third Chamber)

18 December 2009 ( )

(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)

In Joined Cases T‑440/03, T‑121/04, T‑171/04, T‑208/04, T‑365/04 and T‑484/04,

Jean Arizmendi, residing in Bayonne (France), and the 60 other applicants whose names appear in the annex, represented, in Case T‑440/03, by J.-F. Péricaud, P. Péricaud and M. Tournois and, in Cases T‑121/04, T‑171/04, T‑208/04, T‑365/04 and T‑484/04, by J.‑F. Péricaud and M. Tournois, lawyers,

applicants,

supported by

Chambre nationale des courtiers maritimes de France, established in Paris (France), represented by J.-F. Péricaud, lawyer,

intervener in Case T‑440/03,

v

Council of the European Union, represented initially by J.‑P. Jacqué and M. Giorgi Fort, and subsequently by F. Florindo Gijón and M. Balta, acting as Agents,

and

European Commission, represented by X. Lewis and, in Case T‑121/04, by X. Lewis and B. Stromsky, acting as Agents,

defendants,

APPLICATION under Article 235 EC and the first paragraph of Article 288 EC for compensation from the Community for the harm caused by the abolition of the monopoly of the French profession of ship brokers,

THE GENERAL COURT (Third Chamber),

composed of J. Azizi (Rapporteur), President, E. Cremona and S. Frimodt Nielsen, Judges,

Registrar: T. Weiler, Administrator,

having regard to the written procedure and further to the hearing on 30 June 2009,

gives the following

Judgment

Legal context

1 Article 4(17) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Common Customs Code (OJ 1992 L 302, p. 1) defines ‘customs declaration’ as the act whereby a person indicates in the prescribed form and manner a wish to place goods under a given customs procedure.

2 Article 4(19) of Regulation No 2913/92 defines ‘presentation of goods to customs’ as the notification to the customs authorities, in the manner laid down, of the arrival of goods at the customs office or at any other place designated or approved by the customs authorities.

3 Article 5 of Regulation No 2913/92 provides:

‘1. Under the conditions set out in Article 64(2) and subject to the provisions adopted within the framework of Article 243(2)(b), any person may appoint a representative in his dealings with the customs authorities to perform the acts and formalities laid down by customs rules.

2. Such representation may be:

– direct, in which case the representative shall act in the name of and on behalf of another person, or

– indirect, in which case the representative shall act in his own name but on behalf of another person.

A Member State may restrict the right to make customs declarations:

– by direct representation, or

– by indirect representation,

so that the representative must be a customs agent carrying on his business in that country’s territory.’

4 Article 64 of Regulation No 2913/92 provides:

‘1. Subject to Article 5, a customs declaration may be made by any person who is able to present the goods in question or to have them presented to the competent customs authority, together with all the documents which are required to be produced for the application of the rules governing the customs procedure in respect of which the goods were declared.

2. However,

(a) where acceptance of a customs declaration imposes particular obligations on a specific person, the declaration must be made by that person or on his behalf …’

5 Article 38(1) of Regulation No 2913/92 provides:

‘Goods brought into the customs territory of the Community shall be conveyed by the person bringing them into the Community without delay, by the route specified by the customs authorities and in accordance with their instructions, if any:

(a) to the customs office designated by the customs authorities or to any other place designated or approved by those authorities; or,

(b) to a free zone, if the goods are to be brought into that free zone direct:

– by sea or air, or

– by land without passing through another part of the customs territory of the Community, where the free zone adjoins the land frontier between a Member State and a third country.’

6 Article 40 of Regulation No 2913/92, in the version applicable to the present case, provides:

‘Goods which, pursuant to Article 38(1)(a), arrive at the customs office or other place designated or approved by the customs authorities shall be presented to customs by the person who brought the goods into the customs territory of the Community or, if appropriate, by the person who assumes responsibility for carriage of the goods following such entry.’

7 Article 43 of Regulation No 2913/92, in the version applicable to the present case, provides:

‘Subject to Article 45, goods presented to customs within the meaning of Article 40 shall be covered by a summary declaration.

The summary declaration shall be lodged once the goods have been presented to customs. The customs authorities may, however, allow a period for lodging the declaration which shall not extend beyond the first working day following the day on which the goods are presented to customs.’

8 Article 44 of Regulation No 2913/92, in the version applicable to the present case, states:

‘1. The summary declaration shall be made on a form corresponding to the model prescribed by the customs authorities. However, the customs authorities may permit the use, as a summary declaration, of any commercial or official document which contains the particulars necessary for identification of the goods.

2. The summary declaration shall be lodged by:

(a) the person who brought the goods into the customs territory of the Community or by any person who assumes responsibility for carriage of the goods following such entry; or

(b) the person in whose name the persons referred to in subparagraph (a) acted.’

Facts

Initial status of ship brokers

History and nature of the status of ship broker

9 In the French Commercial Code (‘the Commercial Code’), the Corps des courtiers interprètes et conducteurs de navires (‘ship brokers’) had a hybrid status, combining that of public officer, with a monopoly in certain transactions, and that of trader.

10 That status arose as a consequence of the French legislature’s desire to protect foreign captains without a command of French, and also French captains, against intermediaries charging excessive tariffs.

Consequences of the hybrid status of ship brokers

– General framework of the obligations and the relevant rights

11 The status of trader and public officer enjoyed by ship brokers gave rise to a number of rights and obligations (‘privileges’).

12 Thus, the status of trader meant that ship brokers were required to keep books and accounts, that the legislation on insolvency applied to them and that they were prohibited from forming civil-law partnerships.

13 The status of public officer, which followed from Article L-131-1 et seq. of the commercial code, meant that ship brokers were appointed by decree of the French Minister for Transport and operated on a market reserved by the legislature.

14 Article L-13l-2 of the commercial code provide the following:

‘[Ship brokers] carry out cargo brokerage and, in addition, they have the sole right, in the event of any disputes brought before the courts, to translate the declarations, charterparties, bills of lading, contracts and any commercial documents which need to be translated; and, last, to establish the freight or cargo rate.

In contentious commercial matters, and for the customs service, they alone shall provide assistance to all foreigners, ships’ captains, traders, ships’ crews and other seafaring persons.’

– Material scope of the privilege

15 Within the scope of their privilege, ship brokers carried out two distinct tasks, concerning, first, the completion of the formalities required by the customs authorities and/or the port authorities and, second, the role of sworn interpreter before the courts.

16 As regards the monopoly for completing the documents and formalities connected with conveyance to customs, those documents and formalities consisted in checking the frequency of ships on arrival and departure, transmitting the physical characteristics that enabled the taxable capacity to be established, drawing up ‘ship declarations’ (on arrival and departure), drawing up attestations and certificates required by the customs and transmitting copies of the crew lists to the other competent authorities, such as the customs, the border police and the coastguards.

– Territorial and personal scope of the privilege

17 The privilege held by ship brokers was limited geographically to the port in which the ship broker had been appointed and generally applied to all ships. That privilege could be shared with ship brokers in the same area.

– Obligations arising from the official appointment as public officer

18 The official appointment, which is one of the constituent elements of the post of public officer, meant that a ship broker was required to act for anyone requesting his services.

19 In addition, each ship broker was required to provide all the services within his remit and, in order to ensure his independence, he was prohibited from engaging in any commercial or banking transactions on his own account.

– Rights arising from the official appointment as public officer

20 First, each ship broker was entitled to charge fees for the services which he supplied, the rates of such services being fixed by decree.

21 Second, each ship broker had the right to present his successor for approval by the minister responsible for merchant shipping. That ‘right of presentation’ could be analysed as an assignable proprietary right, subject to limitation, representing the consideration for the acquisition for value of the official appointment as public officer.

Abolition of the privilege of ship brokers

Adoption of Regulation No 2913/02 and the proceedings for failure to act

22 Regulation No 2913/92, which entered into force on 1 January 1994, liberalised the exercise of certain occupations connected with port business. It laid down, in particular, the principle of freedom of representation with the customs authorities, by prohibiting, in Article 5, double customs representation.

23 In 1997 Article L-131-2 of the Commercial Code, which reserved for ship brokers a monopoly for completing the documents and formalities linked with conveyance to customs, was still in force. The Commission of the European Communities took the view that that legislation was not compatible with Article 5 of Regulation No 2913/92 and initiated proceedings against the French Republic for failure to fulfil its obligations.

24 Thus, on 12 February 1997 the Commission gave formal notice to the French Republic to submit its comments on the monopoly for conveyance to customs reserved for ship brokers.

25 On 3 December 1997 the Commission issued a reasoned opinion within the meaning of the first paragraph of Article 226 EC concerning a breach of Article 5(1) and (2) of Regulation No 2913/92.

26 In that opinion, the Commission considered, in particular, that:

‘With respect to ship brokers, Article [L-131-2] of the French Commercial Code reserves for them the privilege of representation before the customs services. They are responsible for the conveyance of the ship, that is to say, for all the administrative and customs formalities to be completed on the arrival and departure of their ships.

The second subparagraph of Article 5(2) [of Regulation No 2913/92] leaves it open to Member States to reserve representation but, as a derogation from the principle of freedom of representation, that provision must be given a strict interpretation. It can relate only to the preparation of the customs declaration and cannot therefore be extended to documents and formalities other than those directly linked to the customs declaration as defined in Article 4(17) and 62 to 77 of [Regulation No 1913/92].

…

For those reasons, the Commission … issues the reasoned opinion, under [the first paragraph of] Article [226 EC], that, … by reserving, pursuant to Article [L-131-2] of the French Commercial Code, to ship brokers representation for the completion of the documents and formalities linked with conveyance to customs, … the French Republic has failed to fulfil its obligations under Article 5(1) and (2) of [Regulation No 2913/92].

The Commission requests the French Republic to take the necessary measures to comply with the present reasoned opinion within two months of notification thereof.’

Amendment of the French legislation

27 The French legislature adopted Law No 2001-43 of 16 January 2001 adapting various provisions to Community law in the field of transport (JORF, 17 January 2001, p. 848). That law abolished the monopoly held by ship brokers.

28 Article 1 of that law provides:

‘I. Article L-131-2 of the Commercial Code is repealed.

II. Charter brokerage, the fixing of rates for cargo or freight, the formalities associated with conveyance to customs, the translation of declarations, charterparties, bills of lading, contracts and all commercial documents, where they relate to ships, shall be effected freely by the shipowner or his representative, who may be the captain.’

29 Articles 2 and 4 of Law No 2001-43 set out the conditions in which ship brokers may be compensated for the loss of their right.

30 Article 5 of Law No 2001-43 states that the conditions in which ship brokers may have access to the professions of freight forwarder, registrar of the commercial court, bailiff or administrator appointed by the court to oversee the liquidation of undertakings are to be fixed by decree, in particular with respect to total or partial exemption from qualifications and professional training.

Procedure

31 By applications lodged at the Court Registry between 29 December 2003 and 9 December 2004, the applicants Mr Jean Arizmendi and the 60 other ship brokers whose names appear in the annex brought the present actions for damages.

32 By document lodged at the Court Registry on 8 March 2004, the Chambre nationale des courtiers maritimes de France requested leave to intervene in the present proceedings in support of the applicants in Case T‑440/03. By order of 30 June 2004, the President of the Third Chamber of the Court granted leave to intervene. The intervener lodged its statement in intervention within the prescribed period.

33 By separate documents lodged at the Court Registry between 29 March 2004 and 19 January 2005, the Council of the European Union raised two objections of inadmissibility, pursuant to Article 114 of the Rules of Procedure of the Court, in each of the present cases.

34 By separate documents lodged at the Court Registry between 30 March 2004 and 20 January 2005, the Commission raised three objections of inadmissibility, pursuant to Article 114 of the Rules of Procedure, in each of the present cases, to which a fourth objection of inadmissibility was added in Case T‑121/04.

35 By order of the President of the Third Chamber of the Court of 28 April 2005, Cases T-440/03, T‑121/04, T‑171/04, T‑208/04, T‑365/04 and T‑484/04 were joined for the purposes of the written procedure, the oral procedure and the judgment, in accordance with Article 50 of the Rules of Procedure.

36 By order of the Court of 5 December 2005, the objections of admissibility raised by the Council and the Commission were joined to the substance of the cases, in application of Article 114(4) of the Rules of Procedure, and costs were reserved.

37 Upon hearing the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure. In the context of the measures of organisation of procedure, the Court invited the parties to reply to a number of questions. The parties complied with those requests.

38 The parties presented oral argument and their replies to the questions put by the Court at the hearing on 30 June 2009.

Forms of order sought by the parties

39 The applicants claim that the Court should:

– dismiss the objections of inadmissibility raised by the Council and the Commission and declare the actions admissible;

– primarily, recognise that the European Community is liable to each of the applicants for having unlawfully adopted, and then applied to them, Article 5 of Regulation No 2913/92;

– in the alternative, recognise that the Community is responsible to each of the applicants by virtue of the adoption, even lawful, and then the application of Article 5 of Regulation No 2913/92, which caused them abnormal and special harm;

– in consequence, order the Council and the Commission jointly and severally to compensate the applicants for the harm sustained in the amounts specified in their pleadings;

– order the Council and the Commission jointly and severally to pay the costs.

40 The Chambre nationale des courtiers maritimes de France claims that the Court should:

– declare the action in Case T‑440/03 admissible and well founded;

– order the Council and the Commission to pay its costs.

41 The Council and the Commission contend that the Court should

– dismiss the actions as inadmissible;

– in the alternative, dismiss the actions as unfounded;

– order the applicants to pay the costs.

42 The Commission claims, in addition, that the Court should order the Chambre nationale des courtiers maritimes de France to bear its own costs should judgment be given for the applicants.

Preliminary observations

The principles relating to non-contractual liability

43 It has consistently been held that in order for the Community to incur non-contractual liability, a number of conditions must be satisfied, namely: the unlawfulness of the conduct alleged against the institutions, the fact of damage and the existence of a causal link between the alleged conduct and the damage complained of (Case C‑243/05 P Agraz and Others v Commission [2006] ECR I‑10833, paragraph 26; Joined Cases C‑120/06 P and C‑121/06 P FIAMM and Others v Council and Commission [2006] ECR I‑6513, paragraph 106; and judgment of 30 April 2009 in Case C‑497/06 P CAS Succhi di Frutta v Commission, not published in the ECR, paragraph 39).

44 The cumulative nature of those conditions means that, when one of them is not satisfied, the action for damages must be dismissed in its entirety and it is unnecessary to consider the other conditions (Case C‑257/98 P Lucaccioni v Commission [1999] ECR I‑5251, paragraphs 14 and 63; Case C‑122/01 P T Port v Commission [2003] ECR I‑4261, paragraph 30; and CAS Succhi di Frutta v Commission, paragraph 43 above, paragraph 40).

The scope of the action

Overview of the parties’ arguments

45 In their applications, the applicants, who are ship brokers, claim that the Community, represented by the Commission and the Council, should be ordered to compensate them for the losses attributable to the abolition of their privilege. They attach to their applications an evaluation setting out, principally, the amount of those losses for each of the applicants and, subsidiarily, the same amount less the compensation received pursuant to Law No 43-2001. The applicants formulate two alternative claims, both seeking compensation for the losses.

46 Primarily, the applicants claim compensation for the loss which they sustained owing to the abolition, in application of Article 5 of Regulation No 2913/92, of the privilege conferred on them by the status of ship broker. That claim is based on the premiss that Article 5 of Regulation No 2913/92 prohibits the maintenance of the privilege. More particularly, they submit that Article 5 of Regulation No 2913/92 is the cause of the enactment by the French Republic of Law No 2001-43, which abolished the ship brokers’ monopoly. The adoption of Article 5 of Regulation No 2913/92 renders the Community liable in negligence and also strictly liable. The applicants maintain that the adoption of Article 5 of Regulation No 2913/92 is unlawful, as it infringes Article 45 EC, the principle of legal certainty, legitimate expectations, the principle of non-discrimination, the principle of proportionality and also their property rights. The applicants further contend that, irrespective of the question of the lawfulness of that provision, the harm incurred by ship brokers following the adoption of Article 5 of Regulation No 2913/92 is special and abnormal.

47 In the alternative, the applicants claim compensation for the loss which they sustained owing to the abolition of the privilege conferred on them by the status of ship broker after the Commission wrongly initiated infringement proceedings against the French Republic. This claim is based on the premiss that Article 5 of Regulation No 2913/92, which dealt with customs representation, does not apply to the activities of ship brokers, who undertake customs brokerage. Accordingly, the Commission erred in sending the French Republic, on 3 December 1997, a reasoned opinion in which it considered, in substance, that maintaining the monopoly of ship brokers was incompatible with Article 5 of Regulation No 2913/92. That reasoned opinion compelled the French Republic to adopt Law No 2001-43 abolishing the monopoly of ship brokers, with the consequence that the Community is liable for the harm caused to the applicants owing to the abolition of their privilege.

48 The Commission and the Council contest the admissibility and the merits of the action, as regards both the principal claim and the alternative claim. In addition, in Case T‑121/04, the Commission claims that Ms Anne Le Boutillier’s application is inadmissible on the ground that it is not specified on what basis she is the successor to the rights of Ms Martine Le Boutillier.

Further particulars of the scope of the dispute provided by the parties in the course of the proceedings

49 During the proceedings the applicants provided further particulars of the scope of the dispute between them.

50 In its defence, the Commission withdrew the plea of inadmissibility raised against the action brought by Ms A. Le Boutillier in Case T‑121/04.

51 Furthermore, in their answers to the written questions put by the Court, the applicants, after pointing out that ship brokers are involved in brokerage and not in representation, stated that they convey ships to customs and do not convey goods to customs. Article 5 of Regulation No 2913/92 therefore does not apply to them, since it deals only with representation when goods are conveyed to customs.

52 At the hearing, the applicants submitted that the activity of ship brokers before the customs authorities was covered by Articles 38, 43 and 44 of Regulation No 2913/92, which govern the presentation to customs of goods brought into the customs territory. In the applicants’ submission, the summary declaration referred to in Article 43 of Regulation No 2913/92 corresponds to the lodging of the ‘Manifest’, the brokerage of which is the responsibility of the brokers.

53 Last, the applicants stated at the hearing that the cause of their loss is not Article 5 of Regulation No 2913/92 but rather the Commission’s reasoned opinion of 3 December 1997, in which the Commission misinterpreted that provision by considering that it prohibited the maintenance of the ship brokers’ monopoly.

Findings of the Court

54 First of all, the Court finds that, in the light of the Commission’s defence, there is no longer any reason to adjudicate on the plea of inadmissibility which the Commission raised against the action brought by Ms A. Le Boutillier in Case T‑121/04.

55 Next, the Court considers that, in the light of the applicants’ declaration at the hearing, set out at paragraph 52 above, that only the reasoned opinion of 3 December 1997 was the cause of their loss, there is no longer any need to adjudicate on the applicants’ principal claim for compensation in their applications, which rests on the premiss that Article 5 of Regulation No 2913/92 is the cause of the alleged loss in that it prohibits the maintenance of the ship brokers’ monopoly (see paragraph 46 above). The questions of admissibility and of substance raised by the applicants’ claim for compensation on the basis of that premiss will therefore not be examined by the Court.

56 Consequently, the Court will examine only the claim for compensation which the applicants submitted in the alternative in their applications, which rests on the premiss that the loss which they incurred was caused by the reasoned opinion of 3 December 1997. The Court will examine first the objection of inadmissibility raised by the Commission against the actions on the ground that the Community cannot be required to make reparation for loss caused by the initiation of infringement proceedings. That objection is the only objection among those raised in the present case which is based on the latter premiss and which does not relate to the question of imputability, which goes to the substance and not to the admissibility of an action for compensation (see, to that effect, Case T‑113/96 Dubois et Fils v Council and Commission [1998] ECR II‑125, paragraph 34). Then, provided that that objection must be dismissed, the Court will examine the substantive issues raised by these actions.

Admissibility

Arguments of the parties

57 The Commission claims that the action is inadmissible on the ground that it cannot be required to make reparation for loss caused by the institution of infringement proceedings.

58 The Commission observes that the Community cannot be held liable for not having instituted infringement proceedings (see order in Case T‑202/02 Makedoniko Metro and Michaniki v Commission [2004] ECR II‑181, paragraph 43 and the case-law cited there). It submits that if an individual cannot challenge the fact that the Commission has not instituted infringement proceedings, it is perfectly logical that an individual cannot challenge the fact that the Commission did institute such proceedings. In the context of Article 226 EC, only the Member State concerned can challenge the institution of infringement proceedings.

59 The Commission maintains that the consequences which a Member State might draw from the infringement proceedings instituted against it cannot be imputed to the Commission. Nor can the action or inaction of the Member State concerned be imputed to the Commission any more than the fact of having or not having instituted proceedings can be imputed to it.

60 The applicants, supported by the intervener, contest the argument can be inadmissible on the ground that the Commission cannot be held liable for the loss caused by the institution of infringement proceedings.

Findings of the Court

61 The Commission maintains that an action for compensation based on the fact that it instituted infringement proceedings is inadmissible on the ground that if it cannot be held liable for not having instituted infringement proceedings it is perfectly logical that it cannot be held liable for having instituted such proceedings.

62 In that regard, it should be borne in mind that, as recognised by a well-established body of case-law, an action for damages based on the Commission’s failure to institute infringement proceedings under Article 226 EC (now Article 258 TFEU) is inadmissible. According to that case-law, since the Commission is under no obligation to initiate infringement proceedings under Article 226 EC, its decision not to initiate such proceedings is not in any event unlawful, so that it cannot give rise to non-contractual liability on the part of the Community (orders in Case C‑72/90 Asia Motor France v Commission [1990] ECR I‑2181, paragraphs 13 to 15; Case T‑201/06 Smanor and Others v Commission [1997] ECR II‑1081, paragraphs 30 and 31; and Makedoniko Metro and Michaniki v Commission, paragraph 58 above, paragraphs 43 and 44). Thus, since the Commission is under no obligation to initiate infringement proceedings, its failure to do so cannot give rise to liability on the part of the Community.

63 However, it cannot be inferred from that absence of liability for failure to initiate infringement proceedings that the initiation of such proceedings by the Commission also precludes any liability on the part of the Community.

64 In that regard, it should be borne in mind that an action for compensation is an independent form of action, with a purpose to fulfil within the framework of legal remedies (Case 4/69 Lütticke v Commission [1971] ECR 325, paragraph 6, and Joined Cases T‑3/00 and T‑337/04 Pitsiorlas v Council and ECB [2007] ECR II‑4779, paragraph 283). Its purpose is to seek compensation for damage resulting from a measure or from unlawful conduct attributable to an institution (see Case C‑234/02 P Ombudsman v Lamberts [2004] ECR I-2803, paragraph 59 and the case-law there cited).

65 Accordingly, irrespective of whether it constitutes a challengeable act apt to lead to an action for annulment (see paragraph 69 below), any act of an institution, even though it was adopted by that institution in the exercise of a discretion, is in principle capable of forming the subject-matter of an action for compensation (see, to that effect, Case T‑277/97 Ismeri Europa v Court of Auditors [1999] ECR II‑1825, paragraphs 109 and 110, upheld on appeal in Case C‑315/99 P Ismeri Europa v Court of Auditors [2001] ECR I‑5281, paragraph 41).

66 The discretion conferred on an institution does not have the consequence of releasing it from its obligation to act in conformity both with the higher rules of law, such as the Treaty and the general principles of Community law, and with the relevant secondary legislation. Where the legality of that act is challenged in an action for compensation, the act is therefore capable of being assessed against the yardstick of the obligations borne by that institution.

67 A contrary approach would run counter to a Community based on the rule of law and would render the action for compensation ineffective since it would prevent the Court from assessing the legality of an act of an institution in such an action (Ombudsman v Lamberts, paragraph 64 above, paragraph 61).

68 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 (Case C‑70/99 Commission v Portugal [2001] ECR I‑4845, paragraph 17) and although it may address a reasoned opinion to the Member State concerned in the exercise of its powers, it cannot be precluded that in very exceptional circumstances a person may be able to demonstrate that such a reasoned opinion is vitiated with illegality constituting a sufficiently serious breach of a rule of law that is likely to cause damage to him (see, to that effect Ombudsman v Lamberts, paragraph 64 above, paragraph 52, and Case T‑209/00 Lamberts v Ombudsman [2002] ECR II‑2203, paragraph 57).

69 The fact that a reasoned opinion adopted by the Commission under the first paragraph of Article 226 EC is not a measure intended to produce binding legal effects with respect to third parties and that, accordingly, that opinion is not a measure capable of forming the subject-matter of an action for annulment (see, to that effect, Case 48/65 Lütticke and Others v Commission [1966] ECR 19, 27, and orders in Case T‑182/97 Smanor and Others v Commission [1998] ECR II‑271, paragraph 28, and of 5 September 2006 in Case T‑242/05 AEPI v Commission, not published in the ECR, paragraph 30) does not affect the preceding assessment. A reasoned opinion may, owing to its unlawful content, cause harm to third parties. Thus, for example, it cannot be precluded that the Commission should cause harm to persons who have entrusted it with confidential information by disclosing that information in a reasoned opinion. Likewise, it cannot be precluded that a reasoned opinion should contain inaccurate information about certain persons likely to cause them harm.

70 The question whether a reasoned opinion is capable of rendering the Community liable is a matter for the examination of the substance and not for that of the admissibility of the action.

71 Accordingly, the objection of inadmissibility raised by the Commission must be dismissed.

Substance

The existence of a sufficiently serious breach

Arguments of the parties

72 The applicants maintain, in substance, that the reasoned opinion of 3 December 1997, which invites the French Republic to amend Article L-131-2 of the Commercial Code in that it confers on ship brokers a privilege incompatible with Article 5 of Regulation No 2913/92 is incorrect in so far as that article does not apply to the activities of ship brokers.

73 The Commission and the Council dispute that argument.

Findings of the Court

74 First of all, it should be borne in mind that where the unlawfulness of a legal act is in issue, whether or not the non-contractual liability of the Community is incurred depends on the existence of a sufficiently serious breach of a rule of law that is intended to confer rights on individuals (see judgment of 12 September 2007 in Case T‑259/03 Nikolaou v Commission, not published in the ECR, paragraph 39 and the case-law cited there). As regards that condition, the decisive criterion for establishing that a breach of Community law is sufficiently serious is that an institution manifestly and gravely disregarded the limits on its discretion (Case C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraphs 43 and 44, and Case C‑282/05 P Holcim (Deutschland) v Commission [2007] ECR I‑2941, paragraph 47).

75 Next, it should be borne in mind that infringement proceedings as provided for in Article 226 EC constitute a specific procedure designed to enable the Commission, as the guardian of the Treaty (see, to that effect, Article 211 EC), to ensure that Member States comply with Community law (see, to that effect, Case C‑431/92 Commission v Germany [1995] ECR I‑2189, paragraph 21). It enables the Commission to obtain, after it has adopted a reasoned opinion, and in so far as that opinion has not been followed by the Member State to which it was addressed, a declaration by the Court that the Member State concerned has failed to fulfil its obligations. Only the Court has jurisdiction to declare that a Member State has failed to fulfil its obligations under Community law (order in Smanor and Others v Commission, paragraph 69 above, paragraph 28).

76 Thus, while the Commission enjoys a discretion in deciding whether or not to commence an action for failure to fulfil obligations (Commission v Portugal, paragraph 68 above, paragraph 17), it cannot make a binding finding that there has been such a failure. In infringement proceedings the Commission can only give an opinion as to whether a Member State has failed to comply with Community law. Provided that it confines itself in that opinion 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 individuals.

77 Accordingly, even the adoption by the Commission in a reasoned opinion of an incorrect position on the scope of Community law cannot constitute a sufficiently serious breach capable of rendering the Community liable. The applicants’ claims for compensation are therefore unfounded.

78 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 business 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. However, it must be emphasised that such a breach is not alleged in the present case.

The causal link

Introduction

79 Independently of the question of the existence of a sufficiently serious breach, the Court considers that it is also necessary to verify the existence of a causal link between the adoption by the Commission of the reasoned opinion of 3 December 1997 and the loss alleged by the applicants.

Arguments of the parties

80 In the applicants’ submission, the Council acknowledges that it was on the basis of the Commission’s reasoned opinion of 3 December 1997 that Law No 2001-43, which entailed the loss of the privilege enjoyed by ship brokers, and therefore the loss sustained by them, was enacted.

81 They maintain that the French Republic, to which that reasoned opinion was addressed, had no discretion to adopt the national measure implementing Community law. The title of Law No 2001-43 attests to the fact that the French authorities merely complied with the Commission’s instructions contained in the reasoned opinion of 3 December 1997.

82 Law No 2001-43 cannot therefore act as a screen between the Community measure occasioning the loss and the loss. The loss sustained by the applicants is therefore fully attributable to the Commission, notwithstanding the adoption of Law No 2001-43 by the French Republic, and only the Community judicature has jurisdiction to entertain a claim for compensation for such loss.

83 The applicants emphasise that the exclusive liability of the Community, represented by the Commission in the light of its role in drawing up the act in issue, is the counterpart of the limitations and the surrender of sovereignty by the Member States for the creation of the customs union.

84 The Council and the Commission dispute those arguments.

Findings of the Court

85 In an action for compensation, there is a causal link where there is a sufficiently direct 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 (see, to that effect, CAS Succhi di Frutta v Commission, paragraph 43 above, paragraph 59; Case T‑149/96 Coldiretti and Others v Council and Commission [1998] ECR II‑3841, paragraph 101; see order in Case T‑201/09 Royal Olympic Cruises and Others v Council and Commission [2000] ECR II‑4005, paragraph 26 and the case-law there cited, upheld on appeal by order of 15 January 2002 in Case C‑49/01 P Royal Olympic Cruises and Others v Council and Commission, not published in the ECR; and Pitsiorlas v Council and ECB, paragraph 64 above, paragraph 292).

86 As regards the existence of a causal link between the reasoned opinion of 3 December 1997 and the loss alleged by the applicants, it must be observed, first of all, that the only acts that the Commission may find it necessary to adopt in the context of infringement proceedings governed by Article 226 EC are acts addressed to the Member States (see order in Case T‑334/02 Viomichania Syskevasias Typopoiisis Kai Syntirisis Agrotikon Proïonton v Commission [2003] ECR II‑5121, paragraph 44 and the case-law there cited). Those proceedings therefore deal only with the relations between the Commission and the Member States.

87 Next, it should be observed that the infringement proceedings provided for by Article 226 EC distinguish a pre-litigation or administrative phase and a contentious or judicial phase. Thus, if the Commission considers that a Member State has failed to fulfil one of its obligations, it first of all initiates a pre-litigation phase in the course of which it gives the Member State concerned the opportunity to adopt a position on the alleged failure to fulfil its obligations. The Commission concludes that pre-litigation procedure by addressing a reasoned opinion to that Member State. The objective of the pre-litigation procedure provided for in Article 226 EC is to give the Member State concerned an opportunity to comply with its obligations under Community law or to avail itself of its right to defend itself against the complaints made by the Commission (Case C‑490/04 Commission v Germany [2007] ECR I‑6095, paragraph 25). The Member State is thus under no obligation to follow that reasoned opinion but may, if it considers that the Commission is wrong to accuse it of failing to fulfil its obligations, not comply with that opinion.

88 Only if the Member State concerned fails to comply within the period prescribed for that purpose with the reasoned opinion which the Commission has addressed to it can the Commission, in application of the second paragraph of Article 226 EC, initiate a contentious phase by bringing an action for failure to fulfil obligations (see Case C‑221/04 Commission v Spain [2006] ECR I‑4515, paragraph 22 and the case-law cited there).

89 The purpose of the action brought under Article 226 EC is to obtain a declaration that a Member State has failed to fulfil its Community obligations, and it is the finding of such an infringement that requires the Member State in question to take the measures necessary to comply with the judgment of the Court (Case C‑104/02 Commission v Germany [2005] ECR I‑2689, paragraph 49).

90 Since the infringement proceedings initiated by the Commission under Article 226 EC concern only the relationship between the Commission and the Member State concerned and since, moreover, such proceedings lead initially to a reasoned opinion which the Member State concerned can follow or ignore, the Court must examine whether in the present case the Commission’s reasoned opinion of 3 December 1997 was capable, owing to its content, of constituting the decisive cause of the loss alleged by the applicants.

91 In that regard, it should be noted that in its reasoned opinion the Commission stated that, by reserving to ship brokers, under Article L-131-2 of the Code of Commerce, representation for the completion of the acts and formalities associated with conveyance to customs, the French Republic had failed to fulfil its obligations under Article 5(1) and (2) of Regulation No 2913/92. The Commission also invited the French Republic to take the measures necessary to comply with that reasoned opinion within two months.

92 The fact that in the reasoned opinion of 3 December 1997 the Commission considered that Article L-131-2 of the Code of Commerce was incompatible with Community law – and that it may have been mistaken in that regard – is in reality immaterial in the present case, since that reasoned opinion did not require the Member State to amend its legislation. In infringement proceedings only a judgment of the Court can have such a binding effect.

93 In the absence of any binding effect of the reasoned opinion of 3 December 1997, in that the Commission claims therein that the French Republic has failed to fulfil its obligations under Community law, that opinion cannot be regarded as the decisive cause of the loss alleged by the applicants. Accordingly, the causal link between the alleged loss and the fact giving rise to that loss, that is to say, in the applicants’ contention, the reasoned opinion of 3 December 1997, has not been established.

94 Consequently, the actions must be dismissed as unfounded.

Costs

95 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

96 As the applicants have been unsuccessful, they must be ordered to pay the costs in accordance with the form of order sought by the Commission and the Council.

97 Under the third subparagraph of Article 87(4) of the Rules of Procedure, moreover, the Court may order an intervener to bear its own costs.

98 In the present case, the intervener intervened in Case T‑440/03 in support of the applicants, who have been unsuccessful. Consequently, the Court considers that the intervener must be ordered to bear its own costs.

99 The Commission and the Council shall bear their own costs incurred in connection with the intervention, since they did not apply for the intervener to be ordered to pay the costs if the applications should be dismissed.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1. Dismisses the applications;

2. Orders Mr Jean Arizmendi and the 60 other applicants whose names appear in the annex to bear their own costs and to pay the costs of the Council of the European Union and the European Commission;

3. Orders the Chambre nationale des courtiers maritimes de France to bear its own costs;

4. Orders the Council and the Commission to bear their own costs incurred in connection with the intervention of the Chambre nationale des courtiers maritimes de France.

Azizi Cremona Frimodt Nielsen

Delivered in open court in Luxembourg on 18 December 2009.

E. Coulon J. Azizi

Registrar President





Annex

Case T‑440/03,

Alain Assier de Pompignan, residing in Fort-de-France (France),

Bruno Bachemont, residing in Dunkirk (France),

Heirs of Frédéric Blanchy, residing in Bordeaux (France),

Stéphane De Borville, residing in Dunkirk,

Jean-Pierre Caradec, residing in Brest (France),

Jean-Jacques Caruel, residing in Baie Mahault (France),

Christian Colin-Olivier, residing in Le Havre (France),

Édouard Croze, residing in Nice (France),

Philippe Demonchy, residing in Boulogne-sur-mer (France),

Heir of Jacques Durand-Viel, residing in Lacanau (France),

Michel Elain, residing in Brest,

Bernard Flandin, residing in Rouen (France),

Patrick Foissey, residing in Calais (France),

François Boyer de la Giroday, residing in Bassens (France),

Thierry Gelée, residing in Tréport (France),

Stanislas Gomercic, residing in Marseilles (France),

Michel Hecquet, residing in Dunkirk,

Jacques Héliard, residing in Nantes (France),

Xavier Humann, residing in Le Havre,

Francis Humann, residing in Rouen,

Michel Jolivet, residing in Montoir (France),

Guy Jourdan-Barry, residing in Marseilles,

Pierre Lambot, residing in Les Sables-d’Olonne (France),

Pierre Laurent, residing in Rochefort (France),

Joachim Lefebvre, residing in Dunkirk,

Didier Levavasseur, residing in Le Havre,

Alexis Lobadowski, residing in Le Havre,

Heirs of Erik Martin, residing in Le Havre,

Éric Mascle, residing in Port-la-Nouvelle (France),

Catherine Meclot, residing in Basse-Terre (France),

Loïc Morice, residing in Brest,

Roger Phelippeau, residing in Toulon (France),

Serge Pierre, residing in Dunkirk,

Jean-Pierre Porry, residing in Fort-de-France,

Antoine Ravisse, residing in Calais,

Heir of Félix Rogliano, residing in Port-de-Bouc (France),

François Sédard, residing in Venosc (France),

Raymond Schmit, residing in Pointe-à-Pitre (France),

Jean-Philippe Taconet, residing in Le Havre,

Lionel Taconet, residing in Rouen,

Philippe Thillard, residing in Le Havre,

Olivier Vallois, residing in Dunkirk,

Daniel-Guy Voillot, residing in Le Havre.

Case T‑121/04,

Henri Boquien, residing in Bordeaux,

Yves Delamaire, residing in Saint-Malo (France),

Éric Eltvedt, residing in Marseilles,

Thierry Ferran, residing in Port-Vendres (France),

Didier Frisch, residing in Sète (France),

Merri Jacquemin, residing in Larmor-Plage (France),

Heirs of Anne Le Boutillier, residing in La Rochelle (France),

Pierre-Olivier Le Normand de Bretteville, residing in Port-de-Bouc,

Gérard Lesaignoux, residing in Sète,

Jean-Pierre Roger, residing in Plerin (France),

Michel Roy, residing in Saint-Malo,

Léon Ruggiero, residing in Sète,

Pascal Vialard, residing in Sète.

Case T‑171/04,

Daniel Surget, residing in Cherbourg (France).

Case T‑208/04,

Dominique Hardy, residing in Coudeville-Plage (France).

Case T‑365/04,

Dominique Cantoni, residing in Marseilles.

Case T‑484/04,

François Pilat, residing in Honfleur (France).





Table of contents





Legal context

Facts

Initial status of ship brokers

History and nature of the status of ship broker

Consequences of the hybrid status of ship brokers

– General framework of the obligations and the relevant rights

– Material scope of the privilege

– Territorial and personal scope of the privilege

– Obligations arising from the official appointment as public officer

– Rights arising from the official appointment as public officer

Abolition of the privilege of ship brokers

Adoption of Regulation No 2913/02 and the proceedings for failure to act

Amendment of the French legislation

Procedure

Forms of order sought by the parties

Preliminary observations

The principles relating to non-contractual liability

The scope of the action

Overview of the parties’ arguments

Further particulars of the scope of the dispute provided by the parties in the course of the proceedings

Findings of the Court

Admissibility

Arguments of the parties

Findings of the Court

Substance

The existence of a sufficiently serious breach

Arguments of the parties

Findings of the Court

The causal link

Introduction

Arguments of the parties

Findings of the Court

Costs