3.

From this it may further be asked whether the making of a claim for compensation on the basis of a regulation is excluded for so long as the regulation is valid, that is, is not annulled or so long as its invalidity has not been found. It seems justified to consider this question in the context of an extensive examination of admissibility even if there is no doubt that a similar problem was discussed in the case of Plaumann (Case 25/62 [1963] ECR 95) when the substance of that case was considered. In this respect there are many who take the view that with regard to the provision of Article 34 of the ECSC Treaty the question should be answered in the affirmative at least as far as undertakings having a right of action are concerned, because there is reference in the said provision to ‘equitable redress for the harm resulting directly from the decision or recommendation declared void’. In the EEC Treaty on the other hand (I have already stressed this in my opinion in Joined Cases 43, 45 and 48/59, Rec. 1960, p. 970) there is no similar express provision. There it appears obvious in this respect too to adopt criteria by reference above all to the principles of the national legal orders. Studies of comparative law in fact show that at least in French, Belgian and German law the making of claims on the ground of the liability of the administration in respect of measures taken by public authorities is not dependent on the prior finding of their invalidity or their annulment. ( 9 ) In other Member States such a solution is obviously not available solely because of the fact that the ordinary courts having jurisdiction in claims for compensation do not have power to declare the acts of the administration invalid. ( 10 ) Since this consideration does not apply to Community law because there is here a court having jurisdiction both in actions for liability for breach of official duty and for actions for annulment, it could be established in the present connexion too that the dependence of an action for liability for breach of official duty on a previous finding of the invalidity of the act causing the damage is not a generally binding principle under Article 215 of the EEC Treaty. Now it is true—I have already mentioned it and the Council has stressed it—that in the judgment in Case 25/62 [1963] ECR 95, the finding was made that an administrative measure which has not been annulled cannot of itself constitute a wrongful act. The context in which the finding was made makes it clear that it was in no way meant that it relates only to cases in which a decision could have been but was not contested, for the application for annulment made at the same time was likewise unsuccessful (that is, inadmissible). Accordingly it should appear obvious to proceed in the same way when claims for compensation are alleged to have their origin in regulations which cannot be challenged at all by private individuals (or which can only be reviewed as the result proceeding under Articles 184 and 177, a procedure which is often not available in the absence of the relevant conditions). However, it appears to me extremely doubtful that the case-law of the Court taken as a whole necessarily leads to this view. The strong criticism from many quarters of the finding in the Plaumann Case is well-known. May I refer only to the opinion which Ule gave at the 46th conference of German lawyers, ( 11 ) to the observations which Börner made on this occasion, ( 12 ) to the statements of Fusz, ( 13 ) the comment by von Bülow, ( 14 ) the opinion of Ganshof van der Meersch ( 15 ) and the already mentioned exposition by Goffin. ( 16 ) Goffin, in support of his criticism referred inter alia to the fact that the arguments put forward in the Plaumann judgment resulted in a shortening of the time-limit prescribed by Article 43 of the Protocol on the Statute of the Court of Justice of the EEC and moreover that it is not impossible for damage to arise or to be known only after the expiration of the time-limit. All critics are agreed that there is no principle corresponding to that in the Plaumann judgment which can be found in the legal systems of the Member States or in the EEC Treaty and in this connexion they stress the fact that Article 34 of the ECSC Treaty expressly lays down the contrary rule. As far as regulations are concerned it must moreover be observed that a prior finding of their invalidity (in so far as this is at all possible), namely in proceedings under Article 177 of the EEC Treaty, would mean a time-wasting detour without material gain and by reason of the long duration of legal proceedings in many cases the limitation period under Article 43 of the EEC Statute could not be prevented from expiring before the Court could give a relevant ruling. Thus it is to be welcomed that recently—perhaps under the influence of the above criticism—a certain change in the case-law (which I had already said was desirable in my opinion in Joined Cases 106 and 107/73, Töpfer v Commission [1965] ECR 405) appears noticeable. I am thinking of the judgment referred to by the applicant in Case 4/69, Lütticke v Commission of the European Communities. We read there: ‘The action for damages provided for in Articles 178 and 215 of the Treaty was included as an autonomous form of action, with a particular purpose to fulfil within the system of actions, and subject to conditions on its use by its specific nature. It would be contrary to the autonomy of this action as well as to the efficacy of the general system of the forms of action established by the Treaty to regard the action for damages as inadmissible because it in certain circumstances lead to a result similar to that of an action for failure to act brought under Article 175’. Even if these findings of the autonomy of the forms of action (which moreover are similarly present in the judgment in Joined Cases 9 and 12/60, Rec. 1961, p. 424) were made in a case in which an action for failure to act was conceivable, they are nevertheless equally important, in my opinion, in the present connexion. According to the system of legal protection of the Treaty there can in fact be no difference in principle in regard to a situation in which there is a measure open to challenge adopted by a public authority and alleged to having damaging effects. As regards applications for annulment, too, it may rather be said that they are distinguishable by their aim and purpose (annulment of a measure having effect erga omnes—which means extensive repercussions) and by their conditions from applications for compensation, which, more narrowly limited, aim only to compensate in the individual case and moreover depend on there being a wrongful act or omission. Having regard to the more recent case-law on a similar question and because no general principle can be deduced that liability attaching to the administration by virtue of a measure adopted by it is only possible where there has been a previous finding of the invalidity of such measure, I therefore think that merely because the regulation allegedly causing damage is still extant in law, this does not mean that the application is inadmissible (or, from another point of view, unfounded).