1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 15 FEBRUARY 1982 TRADAX GRAANHANDEL BV BROUGHT AN ACTION SEEKING PRIMARILY A DECLARATION PURSUANT TO THE THIRD PARAGRAPH OF ARTICLE 175 OF THE EEC TREATY THAT THE COMMISSION HAD , IN BREACH OF THE TREATY AND DESPITE HAVING BEEN REQUESTED BY A LETTER OF 24 NOVEMBER 1981 SO TO DO , FAILED TO PROVIDE THE APPLICANT WITH THE DATA ON WHICH IT BASED ITS CALCULATION OF THE LEVIES APPLICABLE TO MAIZE IMPORTS FOR THE PERIOD 28 TO 31 OCTOBER 1980 INCLUSIVE .
2 IN THE ALTERNATIVE THE ACTION SEEKS TO HAVE DECLARED VOID , PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY , THE COMMISSION ' S LETTER OF 14 DECEMBER 1981 SIGNED BY MR WILLIAMSON , AT THAT TIME DEPUTY DIRECTOR GENERAL FOR AGRICULTURE , IN WHICH THE COMMISSION , IN REPLY TO TRADAX ' S LETTER OF 24 NOVEMBER 1981 , INFORMED IT THAT CIF PRICES HAD BEEN DETERMINED IN STRICT COMPLIANCE WITH THE PROVISIONS APPLICABLE .
3 FINALLY , WHATEVER THE RESULT OF THOSE TWO CLAIMS , THE ACTION SEEKS DAMAGES PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY , IN THE AMOUNT OF ONE FLORIN , IN COMPENSATION FOR DAMAGE CAUSED TO THE APPLICANT BY THE COMMISSION ' S REFUSAL TO SUPPLY IT WITH THE REQUESTED DATA ON WHICH THE CALCULATION WAS BASED . FACTS OF THE DISPUTE
4 ARTICLE 13 ( 1 ) OF REGULATION NO 2727/75 OF THE COUNCIL OF 29 OCTOBER 1975 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OFFICIAL JOURNAL L 281 , P . 1 ) WHICH REPLACED REGULATION NO 120/67 OF 13 JUNE 1967 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1967 , P . 33 ) PROVIDES FOR A LEVY TO BE CHARGED ON THE IMPORT OF CERTAIN PRODUCTS LISTED IN ARTICLE 1 , EQUAL FOR EACH PRODUCT TO THE THRESHOLD PRICE LESS THE CIF PRICE . ARTICLE 1 ( 2 ) AND ( 3 ) CONTAINS PROVISIONS REGARDING THE CALCULATION OF THE CIF PRICES . PARAGRAPH ( 4 ) GIVES THE COMMISSION THE POWER TO ADOPT DETAILED RULES FOR THE APPLICATION OF THAT ARTICLE IN ACCORDANCE WITH THE SO-CALLED MANAGEMENT COMMITTEE PROCEDURE . FINALLY , PARAGRAPH ( 5 ) PROVIDES THAT THE COMMISSION IS TO FIX THE LEVIES MENTIONED IN THAT ARTICLE .
5 PURSUANT TO ARTICLE 13 ( 4 ) OF REGULATION NO 120/67 , WHICH IS IDENTICAL IN WORDING TO ARTICLE 13 ( 4 ) OF REGULATION NO 2727/75 , ON 23 JUNE 1967 THE COMMISSION ADOPTED REGULATION NO 156/67 ON THE METHOD OF DETERMINING CIF PRICES AND LEVIES FOR CEREALS , FLOUR , GROATS AND MEAL ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1967 , P . 111 ). THAT REGULATION REMAINED APPLICABLE , WITH SOME AMENDMENTS , AFTER THE ENTRY INTO FORCE OF REGULATION NO 2727/75 . THE BASIC RULE LAID DOWN IN ARTICLE 1 ( 1 ) OF THE REGULATION IS THAT ' ' WHEN FIXING THE CIF PRICES . . . THE COMMISSION SHALL TAKE INTO ACCOUNT ALL OFFERS MADE ON THE WORLD MARKET OF WHICH IT HAS KNOWLEDGE THROUGH MEMBER STATES OR BY ITS OWN MEANS AND THE QUOTATIONS OF THE MAIN INTERNATIONAL COMMERCIAL EXCHANGES . . ( THE COMMISSION ) SHALL FIX THE CIF PRICES ON THE BASIS OF THE MOST FAVOURABLE PURCHASING OPPORTUNITIES OF WHICH IT HAS KNOWLEDGE . . . ' ' . ARTICLE 1 ( 2 ) ALLOWS THE COMMISSION TO EXCLUDE CERTAIN OFFERS , FOR EXAMPLE THOSE WHICH REFER ONLY TO A SMALL QUANTITY UNREPRESENTATIVE OF THE MARKET OR WHERE THE TREND OF PRICES IN GENERAL OR THE INFORMATION AVAILABLE MAKES IT PROBABLE THAT THE PRICES IN QUESTION ARE NOT REPRESENTATIVE OF THE MARKET .
6 EXERCISING THE POWER CONFERRED UPON IT BY ARTICLE 13 ( 5 ) OF REGULATION NO 2727/75 THE COMMISSION BY VARIOUS REGULATIONS , NAMELY REGULATIONS NOS 2746/80 OF 28 OCTOBER 1980 ( OFFICIAL JOURNAL L 284 , P . 15 ), 2763/80 OF 29 OCTOBER 1980 ( OFFICIAL JOURNAL L 287 , P . 3 ), 2780/80 OF 30 OCTOBER 1980 ( OFFICIAL JOURNAL L 288 , P . 1 ) AND 2799/80 OF 31 OCTOBER 1980 ( OFFICIAL JOURNAL L 292 , P . 1 ), FIXED THE IMPORT LEVIES APPLICABLE IN PARTICULAR TO CEREALS FOR THE PERIOD 28 TO 31 OCTOBER 1980 INCLUSIVE . THE RECITALS IN THE PREAMBLES TO THE VARIOUS REGULATIONS REFER TO THE APPLICATION OF THE RULES ON OFFER PRICES AND QUOTATIONS LAID DOWN IN COMMISSION REGULATION NO 2035/80 OF 31 JULY 1980 ( OFFICIAL JOURNAL L 200 , P . 1 ). IN ITS RECITALS , THAT REGULATION ITSELF REFERS TO EVEN MORE DETAILED RULES FOR THE CALCULATION OF LEVIES .
7 TRADAX GRAANHANDEL BV WAS DISSATISFIED WITH THE WAY IN WHICH THE COMMISSION HAD FIXED THE CIF PRICES ON THE BASIS OF WHICH LEVIES ON CEREALS HAD BEEN CALCULATED FOR THAT PERIOD , AND IN A LETTER OF 12 OCTOBER 1981 IT ASKED THE COMMISSION TO INDICATE THE PRECISE DATA WHICH IT HAD TAKEN INTO ACCOUNT IN FIXING THE CIF PRICES BETWEEN 28 AND 31 OCTOBER INCLUSIVE AND TO ALLOW IT TO INSPECT AT THE COMMISSION ' S PREMISES THE DOCUMENTS USED IN CALCULATING THOSE PRICES , BUT DID NOT STATE THAT IT HAD IMPORTED MAIZE DURING THAT PERIOD AND HAD PAID IMPORT LEVIES WHICH IT CONSIDERED CLEARLY TOO HIGH , OR THAT IT HAD INSTITUTED , OR INTENDED TO INSTITUTE , AN ACTION IN A NATIONAL COURT WITH REFERENCE TO THE FIXING OF THE LEVIES .
8 TRADAX RECEIVED NO REPLY TO THAT LETTER , AND BY LETTER OF 24 NOVEMBER 1981 IT CALLED UPON THE COMMISSION PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 175 OF THE EEC TREATY TO DEFINE ITS POSITION ON THE REQUEST WHICH IT HAD MADE , ADDING THAT ITS REQUEST WAS IN ACCORDANCE WITH THE CASE-LAW OF THE COURT AS SET OUT IN THE JUDGMENT OF 1 DECEMBER 1965 CASE 16/65 , ( SCHWARZE , ( 1965 ) ECR 877 ).
9 BY LETTER OF 14 DECEMBER 1981 THE DEPUTY DIRECTOR GENERAL FOR AGRICULTURE , REFERRING TO THE LETTERS OF 12 OCTOBER AND 24 NOVEMBER 1981 , STATED IN REPLY THAT THE CIF PRICES FOR 28 , 29 , 30 AND 31 OCTOBER 1980 HAD BEEN ' ' DETERMINED IN STRICT COMPLIANCE WITH THE PROVISIONS APPLICABLE ' ' .
10 TRADAX CONSIDERED THAT AN INADEQUATE REPLY , AND ON 15 FEBRUARY 1982 BROUGHT AN ACTION BASED , AS IS STATED ABOVE , ON ARTICLES 175 , 173 AND 215 OF THE EEC TREATY . ADMISSIBILITY
11 THE COMMISSION DISPUTES THE ADMISSIBILITY OF EACH OF THE CLAIMS . IN REGARD TO THE ALLEGED FAILURE TO ACT IT STATES THAT THE CLAIM IS INADMISSIBLE INTER ALIA BECAUSE NO RULE OF LAW REQUIRED IT IN SUCH CIRCUMSTANCES TO PROVIDE THE INFORMATION REQUESTED . THE CLAIM THAT THE LETTER OF 14 DECEMBER 1981 SHOULD BE DECLARED VOID SHOULD BE DISMISSED IN PARTICULAR BECAUSE THE LETTER DOES NOT MEET THE CONDITIONS NECESSARY FOR IT TO BE CONSIDERED A DECISION WITHIN THE MEANING OF ARTICLE 173 OF THE EEC TREATY . FINALLY , WITH REFERENCE TO THE CLAIM BASED ON ARTICLE 215 OF THE TREATY , ONE OF THE REASONS FOR ITS INADMISSIBILITY IS THE FACT THAT THE APPLICANT HAS NOT ESTABLISHED THE EXISTENCE OF A MANIFEST AND SERIOUS WRONGFUL ACT OR OMISSION OR A SUFFICIENTLY SERIOUS BREACH OF A SUPERIOR RULE OF LAW .
12 IN VIEW OF THE CLOSE RELATIONSHIP BETWEEN THE QUESTION OF ADMISSIBILITY OF THE VARIOUS CLAIMS AND THE SUBSTANCE OF THE ACTION , IT IS APPROPRIATE TO PROCEED DIRECTLY TO CONSIDERATION OF THE SUBSTANCE OF THE CASE . SUBSTANCE
13 IN SUPPORT OF THE ACTION BASED ON ARTICLES 175 , 173 AND 215 OF THE EEC TREATY THE APPLICANT ARGUES THAT ACCORDING TO THE PRINCIPLES OF GOOD ADMINISTRATION , OF LEGALITY AND OF THE PROTECTION OF THE RIGHTS OF THOSE CONCERNED , OF LEGAL CERTAINTY AND OF THE PROTECTION OF LEGITIMATE EXPECTATION THE COMMISSION WAS OBLIGED TO PROVIDE IT WITH THE INFORMATION REQUESTED . IN FAILING OR REFUSING TO DEFINE ITS POSITION ON THE REQUEST FOR COMMUNICATION OF THE PRECISE DATA WHICH IT HAD USED IN FIXING THE CIF PRICES FOR THE PERIOD IN QUESTION THE COMMISSION BREACHED THOSE PRINCIPLES AND COMMITTED A WRONGFUL ACT OR OMISSION .
14 IN ACCORDANCE WITH THE PRINCIPLE OF GOOD ADMINISTRATION WHICH IS COMMON TO THE LAWS OF THE MEMBER STATES AND IS THEREFORE PART OF COMMUNITY LAW , THE APPLICANT SAYS THAT PERSONS CONCERNED HAVE A RIGHT TO INFORMATION OR AT LEAST A RIGHT OF ACCESS TO ADMINISTRATIVE DOCUMENTS WHICH AFFECT THEM . THE PRINCIPLES OF LEGALITY AND OF THE PROTECTION OF THE RIGHTS OF THOSE CONCERNED REQUIRE THE ADMINISTRATION TO REPLY TO LEGITIMATE REQUESTS MADE TO IT AND , WITH A VIEW TO PROTECTION BY THE COURTS OF THE INTERESTS OF THE UNDERTAKING CONCERNED , TO PLACE AT ITS DISPOSAL ALL THE TECHNICAL DATA ON WHICH IT HAS RELIED . THE APPLICANT REFERS TO THE JUDGMENT OF 1 DECEMBER 1965 REFERRED TO ABOVE . FINALLY , THE PRINCIPLES OF LEGAL CERTAINTY AND OF THE PROTECTION OF LEGITIMATE EXPECTATION IMPLY THAT PERSONS CONCERNED SHOULD HAVE THE OPPORTUNITY OF CHECKING THAT THE ADMINISTRATION HAS MADE NO ERRORS OF FACT OR OF LAW IN ADOPTING DECISIONS WHICH AFFECT THEM AND HENCE OF OBTAINING THE INFORMATION NECESSARY FOR THAT PURPOSE .
15 THE COMMISSION ARGUES THAT THE LETTER OF 14 DECEMBER 1981 DID NOT AMOUNT TO A DECISION REFUSING TO PROVIDE THE INFORMATION REQUESTED BY THE APPLICANT . THE LETTER LEFT OPEN THE QUESTION WHETHER THE COMMISSION WOULD COMPLY WITH THE APPLICANT ' S REQUEST , AND LEFT THE APPLICANT ENTIRELY AT LIBERTY TO RAISE THE MATTER IN GREATER DETAIL .
16 THE COMMISSION MAINTAINS THAT NO OBLIGATION , BE IT GENERAL OR LIMITED TO THE SPECIAL CIRCUMSTANCES OF THIS CASE , TO PROVIDE SUCH INFORMATION CAN BE DEDUCED FROM THE RULES ON THE FIXING OF CEREAL LEVIES , THE PRINCIPLES RELIED ON BY THE APPLICANT OR THE CASE-LAW OF THE COURT . THE ABSENCE OF ANY REFERENCE IN THE REGULATIONS CONCERNED TO SUCH AN OBLIGATION IS DELIBERATE . IT REFLECTS THE CONCERN OF THE COMMUNITY LEGISLATURE FOR THE GENERAL OBLIGATION OF PROFESSIONAL SECRECY BY WHICH THE COMMUNITY IS BOUND IN THIS AREA , AN OBLIGATION DESIGNED TO PROTECT THE BUSINESS SECRETS OF UNDERTAKINGS . FURTHERMORE , REGARD BEING HAD TO THE NUMBER OF TASKS TO BE PERFORMED BY THE COMMISSION IN THIS AREA AND THE VERY LIMITED TIME AVAILABLE TO IT FOR THEIR ACCOMPLISHMENT , THE IMPOSITION OF SUCH AN OBLIGATION WOULD MAKE THE FULFILMENT OF ITS DUTIES PARTICULARLY DIFFICULT .
17 THE COMMISSION SUBMITS THAT THE PRINCIPLE OF GOOD ADMINISTRATION DOES NOT APPLY IN AREAS IN WHICH THE COMMISSION ACTS NOT AS AN ADMINISTRATION , ADOPTING MEASURES OF MANAGEMENT , BUT AS A LEGISLATURE , MAKING LAW . TO LAY A GENERAL OBLIGATION OF THAT KIND ON THE COMMISSION WOULD MOREOVER PREVENT ALL PROPER MANAGEMENT . THE PRINCIPLES OF LEGAL CERTAINTY AND OF THE PROTECTION OF LEGITIMATE EXPECTATION HAVE NO BEARING IN THIS CASE BECAUSE THE APPLICANT HAS NOT SHOWN IN WHAT WAY THE ACTION OR INACTION OF THE COMMISSION COULD HAVE HARMED A ' ' LEGALLY ESTABLISHED POSITION ' ' .
18 FINALLY , WITH REGARD TO THE PRINCIPLES OF LEGALITY AND OF PROTECTION OF THE RIGHTS OF INTERESTED PARTIES , THE COMMISSION EMPHASIZES THAT THE COURT ' S JUDGMENT OF 1 DECEMBER 1965 ( CASE 16/65 , SCHWARZE , ( 1965 ) ECR 877 ), RELIED ON BY THE APPLICANT , DOES NOT IMPLY THE EXISTENCE OF A GENERAL DUTY FOR THE COMMISSION TO DIVULGE DATA USED IN CALCULATING LEVIES , BECAUSE THE COURT , IN GIVING A DECISION ON THE NECESSARY DEGREE OF DETAIL IN THE STATEMENT OF THE REASONS ON WHICH A MEASURE FIXING FREE-AT-FRONTIER PRICES WAS BASED , HELD THAT THE ADMINISTRATION WAS ENTITLED TO ' ' CONFINE ITSELF TO SETTING OUT IN A GENERAL FORM THE ESSENTIAL FACTORS TO AND THE PROCEDURE WHICH FORMED THE BACKGROUND TO ITS EVALUATION OF THE FACTS , WITHOUT ITS BEING NECESSARY TO SPECIFY THE FACTS THEMSELVES ' ' , AND THAT ' ' THE NEED TO PROTECT THE PARTIES TO WHOM THE DECISION IS ADDRESSED AND NATIONALS OF MEMBER STATES AFFECTED BY THE DECISION , AS ALSO THE NEED FOR PROPER JUDICIAL REVIEW , IS SUFFICIENTLY MET AS LONG AS THE COMMISSION . . . PUTS AT THE DISPOSAL OF THE PARTIES THE TECHNICAL DATA USED BY IT IN FIXING THE FREE-AT-FRONTIER PRICES WHENEVER THE DECISION IS CHALLENGED BEFORE A COURT HAVING THE APPROPRIATE JURISDICTION ' ' .
19 THE COMMISSION ARGUES THAT OBSERVATION OF THE PRINCIPLES OF LEGALITY AND OF PROTECTION OF THE RIGHTS OF INTERESTED PARTIES REQUIRES ONLY THAT IN CERTAIN WELL-DEFINED CIRCUMSTANCES , AND IN PARTICULAR WHEN THE DISPUTE HAS ALREADY BEEN SUBMITTED TO A COURT HAVING THE APPROPRIATE JURISDICTION , THE INFORMATION BE PROVIDED IN ORDER THAT PROPER JUDICIAL REVIEW MAY BE CARRIED OUT . IT NOTES IN THIS RESPECT THAT THE APPLICANT DID NOT MENTION THE EXISTENCE OF SUCH CIRCUMSTANCES IN ITS LETTER OF 12 OCTOBER 1981 OR IN THAT OF 24 NOVEMBER 1981 .
20 THE FIRST QUESTION TO BE RESOLVED IS WHETHER THE LETTER OF 14 DECEMBER SIGNED BY MR WILLIAMSON MUST BE REGARDED AS THE DEFINITION BY THE COMMISSION OF ITS POSITION IN RESPONSE TO THE DEMAND SET OUT IN THE LETTER OF 24 NOVEMBER 1981 . THE COMMISSION ' S ARGUMENT TO THE EFFECT THAT THE REPLY SHOULD BE TREATED AS AN INVITATION TO REVERT TO THE REQUEST CANNOT BE ACCEPTED . IN THIS RESPECT IT CANNOT BE DENIED THAT , IN RESPONSE TO A REQUEST FOR ACCESS TO THE FIGURES ON WHICH THE CIF PRICES WERE BASED AND FOR PERMISSION TO CONSULT AT THE COMMISSION ' S PREMISES THE DOCUMENTS USED , A REPLY RESTRICTED TO THE STATEMENT THAT THE CIF PRICES HAD BEEN DETERMINED IN STRICT COMPLIANCE WITH THE PROVISIONS APPLICABLE AMOUNTED TO A REFUSAL .
21 IT IS THEREFORE NECESSARY TO CONSIDER WHETHER THE REFUSAL WAS JUSTIFIED OR WHETHER , ON THE CONTRARY , THE COMMISSION WAS OBLIGED TO FURNISH THE APPLICANT WITH THE DATA REQUESTED AND TO ALLOW IT TO EXAMINE THE RELEVANT DOCUMENTS AT THE COMMISSION ' S PREMISES . IT SHOULD FIRST BE EMPHASIZED THAT , AS THE COMMISSION RIGHTLY NOTES , IN ITS JUDGMENT OF 1 DECEMBER 1965 REFERRED TO ABOVE THE COURT FOUND THAT , IN THE STATEMENT OF THE REASONS ON WHICH A MEASURE FIXING FREE-AT-FRONTIER PRICES IS BASED , THE ADMINISTRATION IS ENTITLED TO CONFINE ITSELF TO SETTING OUT IN A GENERAL FORM THE ESSENTIAL FACTORS AND THE PROCEDURE WHICH FORMED THE BACKGROUND TO ITS EVALUATION OF THE FACTS , WITHOUT ITS BEING NECESSARY TO SPECIFY THE FACTS THEMSELVES . WHEN THE FIXING OF FREE-AT-FRONTIER PRICES MUST BE EFFECTED WITHIN A SHORT TIME , TO REQUIRE THE ADMINISTRATION TO SET OUT IN DETAIL , IN THE STATEMENT OF THE REASONS ON WHICH THE MEASURE IS BASED , ALL THE DATA ON WHICH THE CALCULATION WAS BASED WOULD GO BEYOND WHAT MAY REASONABLY BE DEMANDED . THE COURT THEREFORE HELD THAT THE NEED TO PROTECT PERSONS CONCERNED AND THE NEED FOR PROPER JUDICIAL REVIEW WOULD BE MET IF THE COMMISSION PUT AT THE DISPOSAL OF THE PARTIES THE TECHNICAL DATA USED BY IT IN FIXING THE FREE-AT-FRONTIER PRICES WHENEVER THAT DECISION WAS CHALLENGED BEFORE A COURT HAVING JURISDICTION IN THE MATTER .
22 IT SHOULD HOWEVER BE POINTED OUT THAT IT WOULD BE CONSISTENT WITH GOOD ADMINISTRATION FOR THE COMMISSION PERIODICALLY TO PUBLISH FOR THE INFORMATION OF THE TRADERS CONCERNED THE MAIN DATA TAKEN INTO ACCOUNT IN FIXING CIF PRICES . SUCH AN ARRANGEMENT FOR THE SUPPLY OF PERIODIC INFORMATION DOES NOT HOWEVER INCLUDE A DUTY TO REPLY TO INDIVIDUAL REQUESTS SUCH AS THAT MADE BY THE APPLICANT OR TO ALLOW INSPECTION AT THE COMMISSION ' S PREMISES OF ALL THE DATA WHICH IT HAS ASSEMBLED .
23 IN THOSE CIRCUMSTANCES IT CANNOT BE HELD THAT THE COMMISSION IS UNDER A GENERAL DUTY TO PROVIDE ANY TRADER WHO SO REQUESTS WITH THE DATA ON WHICH THE CALCULATION OF THE CIF PRICES WAS BASED .
24 SIMILARLY , IT CANNOT BE STATED THAT THE PRINCIPLES OF LEGAL CERTAINTY AND OF THE PROTECTION OF LEGITIMATE EXPECTATION MAY ENTAIL THE RIGHT FOR ANY PERSON CONCERNED , AS THE APPLICANT CLAIMS , TO BE ENABLED TO CHECK WHETHER THE LEGISLATION IN FORCE HAS BEEN CORRECTLY APPLIED . SUCH A REVIEW WOULD BE WITHIN THE JURISDICTION OF ANY COURT CALLED UPON TO APPLY THE REGULATIONS .
25 IT FOLLOWS FROM THE CONSIDERATIONS SET OUT ABOVE THAT THE COMMISSION HAD IN THE PRESENT CASE NO DUTY TO PROVIDE , AT THE APPLICANT ' S REQUEST , THE DATA ON THE BASIS OF WHICH THE CIF PRICES WERE FIXED .
26 ALL THE CLAIMS MADE BY THE APPLICANT MUST THEREFORE BE DISMISSED .
27 THE APPLICATION MUST THEREFORE BE DISMISSED IN ITS ENTIRETY .