1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 17 MARCH 1986, DE BOER BUIZEN BV, A COMPANY WHOSE REGISTERED OFFICE IS AT HEERHUGOWAARD, NETHERLANDS, BROUGHT AN ACTION UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY SEEKING COMPENSATION FOR THE DAMAGE WHICH IT CLAIMS TO HAVE SUSTAINED AS A RESULT OF THE IMPLEMENTATION BY THE COUNCIL AND THE COMMISSION OF THE ARRANGEMENT CONCLUDED IN JANUARY 1985 BETWEEN THE COMMUNITY AND THE UNITED STATES OF AMERICA CONCERNING TRADE IN STEEL PIPES AND TUBES ( OFFICIAL JOURNAL 1985, L*9, P.*2; HEREINAFTER REFERRED TO AS "THE ARRANGEMENT ").
2 IN ITS APPLICATION THE APPLICANT SOUGHT A DECLARATION THAT THE COMMUNITY WAS LIABLE FOR THE DAMAGE WHICH THE APPLICANT CLAIMS TO HAVE SUFFERED AS A RESULT OF THE FACT THAT, SINCE 1 JANUARY 1985, IT HAS BEEN PREVENTED FROM EXPORTING STEEL TUBES AND PIPES TO THE UNITED STATES; HOWEVER, IT FURTHER STATED THAT, AT A LATER STAGE, THE PARTIES SHOULD REACH AGREEMENT AS TO THE EXTENT OF THE DAMAGE SUSTAINED, FAILING WHICH THE PROCEEDINGS BEFORE THE COURT SHOULD BE CONTINUED . THE COUNCIL AND THE COMMISSION BASED THEIR DEFENCE CHIEFLY ON THE POINT WHETHER THE COMMUNITY SHOULD BE HELD LIABLE FOR THE DAMAGE SUFFERED BY THE APPLICANT, ALTHOUGH THEY ALSO DOUBTED WHETHER THERE WAS ACTUALLY ANY DAMAGE .
3 SINCE THE DISPUTE BETWEEN THE PARTIES RELATED MAINLY TO THE ADMISSIBILITY OF THE APPLICATION AND THE ALLEGED ILLEGALITY OF THE CONDUCT FOR WHICH THE INSTITUTIONS WERE CRITICIZED, THOSE POINTS SHOULD BE CONSIDERED FIRST .
4 REFERENCE SHOULD BE MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE RELEVANT PROVISIONS, THE FACTS OF THE CASE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT . ADMISSIBILITY
5 THE DEFENDANT INSTITUTIONS CONTEND THAT THE APPLICATION IS INADMISSIBLE . THEY TAKE THE VIEW THAT AN UNDERTAKING MAY NOT HAVE RECOURSE TO ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY WHEN SOME OTHER MEANS OF REDRESS COULD AFFORD IT EFFECTIVE PROTECTION . THAT IS THE CASE IN THIS INSTANCE, SINCE THE APPLICANT WAS ABLE TO CHALLENGE IN NATIONAL LEGAL PROCEEDINGS THE REFUSAL TO ISSUE EXPORT LICENCES TO IT .
6 THE COUNCIL POINTS OUT THAT THE ARRANGEMENT WAS IMPLEMENTED PRIMARILY BY COUNCIL REGULATION NO 60/85 OF 9 JANUARY 1985 ON THE RESTRICTION OF EXPORTS OF STEEL PIPES AND TUBES TO THE UNITED STATES OF AMERICA ( OFFICIAL JOURNAL 1985, L*9, P . 13 ). ARTICLE 5 ( 1 ) OF THAT REGULATION EXPRESSLY PROVIDES THAT EXPORT LICENCES ARE TO BE ISSUED BY THE COMPETENT AUTHORITIES OF EACH MEMBER STATE WITHIN THE LIMITS OF THE AMOUNTS ALLOCATED TO IT . THE SHARING OUT OF THAT NATIONAL QUOTA AMONGST THE UNDERTAKINGS IS THEREFORE SOLELY A MATTER FOR THE NATIONAL AUTHORITIES .
7 ACCORDING TO THE COMMISSION, THE APPLICANT SHOULD HAVE COMMENCED PROCEEDINGS BEFORE THE COMPETENT NATIONAL COURT TO CHALLENGE THE REFUSAL OF AN EXPORT LICENCE AND, IN THAT CONTEXT, TO RAISE THE QUESTION OF VALIDITY OF THE RELEVANT COMMUNITY REGULATIONS . IF SUCH PROCEEDINGS HAD LED TO A DECLARATION THAT THE LICENCE HAD BEEN WRONGLY REFUSED, THEN THE APPLICANT COULD HAVE RELIED ON THAT DECLARATION IN SEEKING COMPENSATION FOR ANY DAMAGE BEFORE A NATIONAL COURT .
8 IT SHOULD BE NOTED THAT THE APPLICANT IS TAKING ISSUE NOT WITH THE MEASURES ADOPTED BY THE NATIONAL AUTHORITIES TO GIVE EFFECT TO THE COMMUNITY REGULATIONS, BUT WITH THE REGULATIONS THEMSELVES, INASMUCH AS IT CRITICIZES THE COUNCIL AND THE COMMISSION FOR NOT ALLOWING THE NATIONAL AUTHORITIES TO GRANT LICENCES FOR THE EXPORTATION OF STEEL TUBES AND PIPES TO THE UNITED STATES TO PERSONS OTHER THAN THE PRODUCERS OF THOSE GOODS . THE EFFECT OF BOTH ARTICLE 5 OF COUNCIL REGULATION NO 60/85, MENTIONED ABOVE, AND ARTICLE 3 OF COMMISSION REGULATION NO 61/85 OF 9 JANUARY 1985 ON THE MONITORING BY THE COMMUNITY OF EXPORTS OF STEEL TUBES AND PIPES TO THE UNITED STATES OF AMERICA ( OFFICIAL JOURNAL 1985, L*9, P . 19 ) IS THAT EXPORT LICENCES MAY BE GRANTED ONLY TO UNDERTAKINGS WHICH PRODUCE THOSE GOODS .
9 THE COURT HAS CONSISTENTLY HELD THAT THE ACTION FOR DAMAGES UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 WAS ESTABLISHED AS AN AUTONOMOUS FORM OF ACTION WITH A PARTICULAR PURPOSE TO FULFIL WITHIN THE SYSTEM OF ACTIONS, AND THAT ITS EXERCISE IS SUBJECT TO CONDITIONS IMPOSED IN VIEW OF THE SPECIFIC OBJECTIVE THEREOF . ALTHOUGH AN ACTION FOR DAMAGES MUST BE APPRAISED WITH REGARD TO THE ENTIRE SYSTEM FOR THE JUDICIAL PROTECTION OF THE INDIVIDUAL AND ALTHOUGH ITS ADMISSIBILITY MAY THUS, IN SOME CASES, BE SUBJECT TO THE PRIOR EXHAUSTION OF THE NATIONAL REMEDIES WHEREBY AN INDIVIDUAL MAY SEEK THE ANNULMENT OF A DECISION OF A NATIONAL AUTHORITY, IT IS NONE THE LESS A NECESSARY PRECONDITION THAT THOSE NATIONAL REMEDIES GIVE EFFECTIVE PROTECTION TO THE INDIVIDUALS CONCERNED AND THAT THEY BE CAPABLE OF LEADING TO COMPENSATION FOR THE DAMAGE ALLEGED .
10 SUCH A SITUATION, WHEREBY THE UNDERTAKING CONCERNED COULD EITHER OBTAIN THE LICENCE OR RECOVER COMPENSATION FOR THE DAMAGE DUE TO THE REFUSAL TO ISSUE IT, DOES NOT ARISE HERE . THE NATIONAL AUTHORITIES WERE OBLIGED UNDER THE AFORESAID PROVISIONS OF REGULATIONS NOS 60 AND 61/85 TO GRANT EXPORT LICENCES SOLELY TO UNDERTAKINGS PRODUCING TUBES AND PIPES, WHILE A DISTRIBUTIVE UNDERTAKING COULD OBTAIN SUCH A LICENCE ONLY BY HAVING IT TRANSFERRED BY A PRODUCER UNDERTAKING . THE ANNULMENT BY A NATIONAL COURT OF A REFUSAL TO GRANT SUCH A LICENCE TO A DISTRIBUTIVE UNDERTAKING CANNOT HAVE THE EFFECT OF GIVING THAT UNDERTAKING THE RIGHT TO OBTAIN EITHER THE LICENCE OR COMPENSATION FOR ANY DAMAGE WHICH IT MAY HAVE SUFFERED . NOR IS THAT THE CASE IF A NATIONAL COURT WERE TO FIND, AFTER REFERRING A QUESTION ON THE MATTER TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE TREATY, THAT THE PROVISIONS OF THE REGULATIONS IN QUESTION WERE INVALID .
11 IT FOLLOWS FROM THOSE CONSIDERATIONS THAT THE OBJECTION OF INADMISSIBLITY RAISED BY THE DEFENDANT INSTITUTIONS CANNOT BE UPHELD . SUBSTANCE
12 THE APPLICANT MAINTAINS THAT THE SCHEME SET UP BY THE COMMUNITY TO IMPLEMENT THE ARRANGEMENT IS ILLEGAL . FIRST, THE SCHEME LEADS TO DISCRIMINATION AGAINST DISTRIBUTORS, BY COMPARISON WITH PRODUCERS, SINCE IT IS ONLY PRODUCERS THAT MAY OBTAIN LICENCES FOR THE EXPORTATION OF STEEL TUBES AND PIPES . SECONDLY, IT HAS THE EFFECT OF SHARING OUT THE TOTAL EXPORT QUOTA BETWEEN THE MEMBER STATES IN AN UNFAIR AND DISCRIMINATORY MANNER, WITHOUT TAKING ACCOUNT OF TRADITIONAL TRADE PATTERNS .
13 WITH REGARD TO THE ALLEGED DISCRIMINATION AGAINST DISTRIBUTORS BY COMPARISON WITH PRODUCERS, THE APPLICANT ACKNOWLEDGES THAT REGULATIONS NOS 60 AND 61/85 ALLOW A LICENCE TO BE TRANSFERRED BY A PRODUCER UNDERTAKING TO A DISTRIBUTIVE UNDERTAKING . NEVERTHELESS, IT ARGUES THAT THAT POSSIBILITY IS VERY LIMITED IN ITS PRACTICAL EFFECT, SINCE LICENCES ARE ENTIRELY USED UP BY THE PRODUCERS THEMSELVES OR BY THEIR SUBSIDIARIES . DISTRIBUTORS ARE THEREBY PREVENTED FROM CONTINUING THE EXPORTATION OF TUBES AND PIPES TO THE UNITED STATES EVEN THOUGH IT WAS THEY, RATHER THAN THE PRODUCERS, WHO HAD OPENED UP THE UNITED STATES MARKET TO STEEL PRODUCTS FROM THE COMMUNITY .
14 IN THAT CONNECTION IT SHOULD BE OBSERVED THAT THE ARRANGEMENT APPLIES ONLY TO EXPORTS FROM THE COMMUNITY TO THE UNITED STATES OF "STEEL PIPES AND TUBES ... ORIGINATING IN THE COMMUNITY" ( FIRST SENTENCE OF SECTION 1 ). IT FOLLOWS THAT THE COMMUNITY PRODUCERS OF THOSE PRODUCTS ARE DIRECTLY AFFECTED BY THE LIMITATION OF EXPORTS, BUT THAT THE EXPORTATION OF PRODUCTS ORIGINATING IN NON-MEMBER COUNTRIES IS NOT AFFECTED EVEN IF THEY ARE EXPORTED BY DISTRIBUTIVE UNDERTAKINGS ESTABLISHED IN THE COMMUNITY . IT IS COMMON GROUND THAT CERTAIN NON-MEMBER COUNTRIES, SUCH AS AUSTRIA, ROMANIA AND NORWAY, MARKET PART OF THEIR STEEL OUTPUT IN THE UNITED STATES THROUGH UNDERTAKINGS ESTABLISHED IN THE COMMUNITY .
15 THUS, UNDERTAKINGS PRODUCING STEEL PIPES AND TUBES IN THE COMMUNITY ARE NOT IN THE SAME SITUATION, AS REGARDS THE RESTRICTIONS IMPOSED ON EXPORTS UNDER THE ARRANGEMENT, AS THE DISTRIBUTIVE UNDERTAKINGS . IN THOSE CIRCUMSTANCES, THE COMMUNITY INSTITUTIONS WERE NOT OBLIGED WHEN IMPLEMENTING THAT ARRANGEMENT TO INTRODUCE A SCHEME WHICH PUT COMMUNITY PRODUCERS AND DISTRIBUTORS ON THE SAME FOOTING .
16 IT FOLLOWS THAT THE SUBMISSION BASED ON DISCRIMINATION BETWEEN DISTRIBUTORS AND PRODUCERS IS UNFOUNDED . THAT CONCLUSION IS NOT ALTERED BY THE FACT THAT, ACCORDING TO THE APPLICANT, IT HABITUALLY OBTAINED SUPPLIES OF TUBES AND PIPES FROM CERTAIN MEMBER STATES, IN PARTICULAR THE FEDERAL REPUBLIC OF GERMANY, AND NOT FROM NON-MEMBER COUNTRIES .
17 THE FOREGOING CONSIDERATIONS DO NOT MEAN THAT, WHEN ESTABLISHING A LICENSING SCHEME FOR THE EXPORTATION OF TUBES AND PIPES TO ONE OF THE LARGEST MARKETS, THE COMMUNITY INSTITUTIONS DID NOT BEAR A DEGREE OF RESPONSIBILITY WITH REGARD TO THE PARTICULAR CIRCUMSTANCES OF UNDERTAKINGS SPECIALIZING IN THE DISTRIBUTION OF SUCH PRODUCTS, AS INDEED THEY ACKNOWLEDGED BY PROVIDING FOR THE POSSIBILITY OF SUCH LICENCES BEING TRANSFERRED TO DISTRIBUTIVE UNDERTAKINGS . IF IT TRANSPIRED THAT THOSE UNDERTAKINGS, AS A CATEGORY, HAD TO BEAR A DISPROPORTIONATE PART OF THE BURDEN ATTRIBUTABLE TO THE RESTRICTIONS ON EXPORT MARKETS, IT WOULD BE FOR THE COMMUNITY INSTITUTIONS TO PROVIDE A REMEDY BY ADOPTING THE APPROPRIATE MEASURES . HOWEVER, THE DOCUMENTS BEFORE THE COURT DO NOT INDICATE THAT THOSE CONDITIONS WERE SATISFIED IN THIS CASE .
18 AS FAR AS THE ALLEGED DISCRIMINATION BETWEEN MEMBER STATES IS CONCERNED, IT SHOULD BE OBSERVED THAT THE ARRANGEMENT RELATES TO THE EXPORTATION OF STEEL TUBES AND PIPES MADE IN THE COMMUNITY AS SUCH, WITHOUT DRAWING ANY DISTINCTION BETWEEN THE VARIOUS MEMBER STATES AND WITHOUT REFERRING TO THE TRADITIONAL PATTERNS OF EXPORTS FROM THOSE MEMBER STATES . THE ARRANGEMENT SETS THE COMMUNITY CEILING FOR EXPORTS OF STEEL TUBES AND PIPES AT 7.6% OF UNITED STATES APPARENT CONSUMPTION; UNDER REGULATION NO 60/85 THE COMMISSION IS TO CALCULATE THE QUANTITIES RESULTING FROM THAT CEILING, AND ANNEX III THERETO DIVIDES THOSE QUANTITIES AMONGST THE MEMBER STATES BY ALLOCATING TO EACH OF THEM A PERCENTAGE OF THE UNITED STATES APPARENT CONSUMPTION . HOWEVER, THE COMPETENT AUTHORITIES IN THE MEMBER STATES ARE REQUIRED TO ISSUE THE EXPORT LICENCES TAKING ACCOUNT, INTER ALIA, OF "THE TRADITIONAL EXPORT PATTERNS OF UNDERTAKINGS" AND "THE RATES OF EXPORTS TO THE UNITED STATES AS TRADITIONALLY SPREAD OUT OVER THE YEAR" ( ARTICLE 5 ( 2 ) OF REGULATION NO 60/85 ).
19 IN THOSE CIRCUMSTANCES IT WAS INCUMBENT ON THE APPLICANT TO DEMONSTRATE WHY THE COUNCIL, IN DIVIDING THE TOTAL COMMUNITY LIMIT AMONG THE MEMBER STATES, SHOULD HAVE HAD REGARD TO THE TRADITIONAL EXPORT PATTERNS OF THE MEMBER STATES AND HOW, IN THIS INSTANCE, IT HAD EXCEEDED THE MARGIN OF DISCRETION WHICH IT ENJOYED IN THE PERFORMANCE OF THAT TASK . THE APPLICANT, HOWEVER, MADE NO MORE THAN THE GENERAL ASSERTION - WHICH IT DID NOT AMPLIFY AND WHICH WAS DENIED BY THE DEFENDANT INSTITUTIONS - THAT SOME MEMBER STATES, IN PARTICULAR THE NETHERLANDS, WERE GIVEN A NATIONAL QUOTA WHICH WAS UNDULY HIGH BECAUSE IT DID NOT REFLECT TRADITIONAL TRADE PATTERNS .
20 IT SHOULD FURTHER BE ADDED THAT THE FIGURES SUPPLIED BY THE PARTIES DO NOT DISCLOSE ANY APPRECIABLE DISCREPANCY BETWEEN, ON THE ONE HAND, THE VARIOUS MEMBER STATES' SHARES OF THE EXPORTS OF STEEL TUBES AND PIPES TO THE UNITED STATES DURING THE PERIOD BEFORE THE REGULATION WAS BROUGHT INTO FORCE AND, ON THE OTHER, THE ALLOCATION OF THE TOTAL COMMUNITY EXPORT LIMIT AMONG THE MEMBER STATES AS SHOWN IN ANNEX III TO REGULATION NO 60/85 .
21 CONSEQUENTLY, THE SUBMISSION BASED ON DISCRIMINATION BETWEEN MEMBER STATES CANNOT BE ACCEPTED EITHER .
22 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS AS A WHOLE THAT THE ILLEGALITY OF THE EXPORT LICENCE SCHEME SET UP BY REGULATIONS NOS 60 AND 61/85 HAS NOT BEEN SUBSTANTIATED . CONSEQUENTLY, IT IS UNNECESSARY TO CONSIDER WHETHER THE OTHER CONDITIONS FOR ESTABLISHING LIABILITY ON THE PART OF THE COMMUNITY ARE SATISFIED .
23 THE APPLICATION MUST THEREFORE BE DISMISSED AS UNFOUNDED .