Dorsch Consult Ingenieurgesellschaft mbH v Council of the European Union and Commission of the European Communities.
Date: 2000-06-15
17 It should be pointed out at the outset that the Court of First Instance has rightly pointed out, in paragraph 59 of the contested judgment, that it is settled law of the Court of Justice that if the Community is to incur non-contractual liability as a result of a lawful or unlawful act, it is necessary in any event to prove that the alleged damage is real and that a causal link exists between that act and the alleged damage (Case 26/81 Oleifici Mediterranei v European Economic Community [1982] ECR 3057, paragraph 16, Joined Cases C-258/90 and C-259/90 Pesquerias De Bermeo and Naviera Laida v Commission [1992] ECR I-2901, paragraph 42).
18 The Court of First Instance also rightly considered that it is clear from the relevant case-law that, in the event of the principle of Community liability for a lawful act being recognised in Community law, a precondition for such liability would in any event be the existence of unusual and special damage (see Joined Cases 9/71 and 11/71 Compagnie d'Approvisionnement, de Transport et de Crédit et Grands Moulins de Paris v Commission [1972] ECR 391, paragraphs 45 and 46, and Case 59/83 Biovilac v European Economic Community [1984] ECR 4057, paragraph 28).
19 It follows that the Community cannot incur non-contractual liability in respect of a lawful act, as in the present case, unless the three conditions referred to in the two preceding paragraphs, namely the reality of the damage allegedly suffered, the causal link between it and the act on the part of the Community institutions, and the unusual and special nature of that damage, are all fulfilled.
Existence of actual and certain damage
23 The Court observes, first of all, that the Court of First Instance rightly observed that it is incumbent upon the appellant to produce to the Community judicature the evidence to establish the fact of the loss which it claims to have suffered (see Case 26/74 Roquette Frères v Commission [1976] ECR 677, paragraph 24, and Case C-362/95 P Blackspur DIY and Others v Council and Commission [1997] ECR I-4775, paragraph 31).
25 Lastly, the existence of actual and certain damage cannot be considered in the abstract by the Community judicature but must be assessed in relation to the specific facts characterising each particular case in point.
35 It is settled law that the Court of First Instance alone has jurisdiction to find the facts, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and also to appraise those facts. The appraisal of the facts therefore does not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice (see Case C-390/95 P Antillean Rice Mills and Others v Commission [1999] ECR I-769, paragraph 29).
36 Consequently, it is only where the appellant contends that the Court of First Instance has made findings which the documents in the file show to be substantially incorrect or that it has distorted the clear sense of the evidence before it, that objections based on findings of fact and their assessment in the contested judgment will be admissible.
50 It is settled law that it is for the Court of First Instance alone to assess the value to be attached to the items of evidence adduced before it (Case C-136/92 P Commission v Brazzelli Lualdi [1994] ECR I-1981, paragraph 66, and Blackspur DIY and Others v Council and Commission, cited above, paragraph 29).
51 As the Advocate General has observed in point 11 of his Opinion, the Court of First Instance cannot, subject to its obligation to observe general principles and the Rules of Procedure relating to the burden of proof and the adducing of evidence and not to distort the true sense of the evidence, be required to give express reasons for its assessment of the value of each piece of evidence presented to it, in particular where it considers that that evidence is unimportant or irrelevant to the outcome of the dispute.
54 The cumulative nature of those conditions means that if one of them is not satisfied, the Community cannot incur non-contractual liability in respect of a lawful act of its institutions. In the present case, it is clear from the whole of the foregoing that the appeal must be rejected in that regard and that it is not necessary to examine the 4th to 17th pleas submitted in it.
The failure by the Community legislature to exercise its discretion regarding the fixing of the amount of compensation