Tradax Graanhandel BV v Commission of the European Communities (64/82)

Admissibility

In its objection of inadmissibility, first in so far as the action is based on Article 175 of the Treaty, the Commission starts by contending that there is no general obligation to adopt the measure requested. No provision of the regulations concerned, be it Article 13 of the basic regulations of the Council or any provision of the Commission's implementing regulation, implies the existence of such an obligation; nor can such an obligation be inferred from the Commission's customary conduct in this regard, since the Commission generally refuses to make known the data on which such calculations are based. According to the Commission, the imposition of levies falls under the powers which it must exercise daily, adopting regulations in a short space of time. That power has not however been left to the entire discretion of the Commission but must be exercised in compliance with certain rules in a well-defined framework (the Management Committee procedure), which guarantees efficiency in the Commission's work. If the Commission were obliged systematically to divulge information on undertakings, that might not only give the competitors of such undertakings information on their commercial policy, but also induce the undertakings no longer to give the Commission such information on their commercial policy; the effect would be to make the fixing of levies in the framework of the agricultural policy difficult if not quite impossible. Nor can it be inferred from the case-law of the Court (in particular Case 16/65, Schwarze [1965] ECR 877) that the Commission is in general obliged systematically to divulge technical data used in the calculation of levies which it is to fix. In this case Tradax has referred to the existence of such information neither in its letters of 12 October and 24 November 1981 nor in its application to the Court. Furthermore, the measure which the Commission could have adopted in reply to the question from Tradax must be assimilated to an opinion or a recommendation, and not to a decision; in Case 6/70 {Borromeo [1970] ECR 815) the Court held that in a case of this sort the action must be declared inadmissible.The Commission also argues that the letter sent by Mr Williamson, dated 14 December 1981, amounts to defining its position. That letter shows a clear link between Tradax's calling upon the Commission to act and the Commission's defining of its position. That clearly indicates that the Commission is bound to follow strict rules for the calculation of the levies, and the wording of the letter shows by implication that the Commission did not consider it necessary to react in any other way to Tradax's demand, or to give further information in response to the demand, which was formulated in general terms.în order for the action for failure to act to be admissible the institution in question must have failed to address to the person concerned an act other than a recommendation or an opinion. In this case the act requested must be assimilated to a recommendation or an opinion.Finally, the Commission argues that if it were possible to accept that Tradax's action was directed towards obtaining a general measure, not only would such a measure be contrary to the division of powers laid down by the Treaty, since its adoption would be covered by the powers reserved to the Council, but its general nature would in itself be a sufficient reason to declare the action inadmissible.In so far as the action is based on Article 173 of the Treaty, the Commission first raises a procedural argument to the effect that it is inadmissible. If an applicant brings an action with two contradictory claims, of which one is moreover expressed as subsidiary to the other, it necessarily results that if the main claim is admissible, the alternative claim meets the same fate. The Commission takes the view that if the main portion of the application made pursuant to Article 175 is inadmissible, it follows that all the other heads of action which are subsidiary to it must also be considered inadmissible.This aspect of the application, according to the Commission, is inadmissible also because the letter sent by Mr Williamson does not constitute a decision within the meaning of the second paragraph of Article 173 or the fourth paragraph of Article 189 of the Treaty, nor can it be considered equivalent or assimilated to such a decision. In article 175 the expression “decision” is used [sic] in a wider sense than in the second paragraph of Article 173. The measure by which the Commission defined its position in accordance with Article 175 therefore does not necessarily constitute a decision which may be contested on the basis of Article 173. Furthermore, for that letter to be considered a decision, according to the case-law of the Court, it would have to be a measure adopted by the competent authority, to be intended to have legal effects, to be mandatory in nature, to constitute the termination of an internal procedure and to be a definitive decision. The Commission maintains that the letter fails to meet most if not all of those conditions. In particular it is not a decision which may be described as a measure adopted by the competent authority, since the deliberations of the Commission are subject to the observance of certain rules, including that of the collective responsibility of the Commissioners. Moreover if the applicant still had reason to suppose that the letter amounted to a decision, it had the opportunity to inquire further of the Commission, which it did not do.In regard to the inadmissibility of the claim based on Article 215 of the Treaty the Commission begins by raising the procedural argument that if the primary claim based on Article 175 is itself inadmissible, it follows that all the subsidiary claims must also be regarded as inadmissible. Furthermore there was obviously no manifest and serious wrongful act or omission or sufficiently serious breach of a superior rule of law. There was also clearly no real damage whatsoever, particularly since Tradax estimates its damage at one Netherlands florin and thus itself acknowledges that it wishes the Court to decide a question of principle in the area of legal interpretation, without finding it necessary to show that it has suffered real damage.For its part the applicant argues that the fact that the Council and the Commission have laid down in detail the method of calculating levies shows clearly that the Commission has no discretion in making such calculations but has on the contrary a series of legal obligations. Every person concerned must therefore have the opportunity to check the legality. of the calculations. The Commission considers it sufficient to rely on a general obligation of secrecy but does not indicate which specific interests it is supposed to protect, so that the Court cannot form its own opinion on the matter. The argument that the Commission's conduct is justified because it refuses as a general rule to make known data of this kind cannot be accepted in law or in fact. The Commission makes no reference to the principles of good administration, of legality and proper judicial protection or of legal certainty and the protection of legitimate expectation, on which the action is founded. Yet those principles are part of the administrative law of the Member States, and thus of Community law, as the applicant shows in presenting a detailed analysis of the administrative law of the various Member States. The applicant concludes that according to Community law the Commission was obliged to make available to it the documents requested.The applicant points out that the Commission did not define its position in its letter of 14 December 1981. The applicant's request did not seek to obtain the Commission's opinion as to whether it had calculated the prices in a legal manner, but to obtain the data on the basis of which the prices had been calculated and permission to inspect those data at the Commission's premises in order itself to check the legality of the calculation. The Commission in fact refrained from defining its position on the substance of the request.The request was directed not towards obtaining an opinion or a recommendation but towards obtaining information, that is, the fulfilment by the Commission of its obligation, in the circumstances of this case, to provide such information. Nowhere in the applicant's letters does it ask for an opinion or a recommendation.The applicant denies having had the intention to obtain a measure of general application since it considered that there was already a general obligation to provide information if a specific demand was made. The individual request of the applicant should have called forth an individual and specific reply.With reference to the inadmissibility of the claim based on Article 173, the applicant shows that it is precisely because the two obviously distinct claims are mutually exclusive that they may be brought in a single application, on condition that one is made alternative to the other.The Commission's letter of 14 December 1981 does not, according to the applicant, amount to a decision within ue meaning of the second paragraph of Article 173, for the simple reason that the letter in no way defines a position on the request, with the result that the claim for failure to act is admissible, which obviously excludes the admissibility of a claim for a declaration of nullity. It is precisely because of the deliberate vagueness of the letter (“the Commission has not failed to act in response i:o the applicant's request”) that Tradax brought the alternative claim for a declaration of nullity. If the claim for failure to act were to be declared inadmissible because the Commissicn had defined its position in its letter, it would necessarily follow that the claim for a declaration of nullity was admissible. If it could not be accepted that the acts of senior officials in the course of every day administration have legal effects, it would be impossible for the administration to conclude agreements, to place orders and so forth on a daily basis. One may therefore reasonably conclude that in his position as deputy director general Mr Williamson was competent to adopt measures in the agricultural sector having legal consequences.According to the applicant the decision of 14 December 1981 has legal consequences. The refusal to provide information prevents the applicant from checking whether the regulation fixing the levies was applied correctly from the factual and legal points of view. For the applicant it is a case of a definite legal effect damaging its interests, contrary to the general principles of good administration. The Commission is wrong still to maintain that its refusal to inform Tradax of the correct data used for calculating the levies does not harm the applicant's legal position since it could still demand repayment of the levies in the ordinary way if it was able to show errors committed by the Commission or the national authority. The national authority has committed no wrongful act in the present case; the applicant requested the information in question precisely in order not to have to take legal action, and the refusal forced it to bring this action. This action is even more appropriate than an action for repayment in the national court since it is not established that the Commission has made no error in calculation and since by its refusal it is preventing the applicant from checking whether errors in calculation have been made.The decision of 14 December 1981 is mandatory in nature, since it cannot be maintained that the implied refusal to give the information requested is not mandatory in nature.Finally, the letter in question amounts to an implied refusal, and not a preparatory act.With reference to the claim for damages based on Article 215 the applicant argues that it is not alternative in nature but was brought expressly, whatever the results in the primary claim for failure to act or the alternative claim for a declaration of nullity. The procedural argument made by the Commission is therefore unfounded.Having regard to the alleged clear absence of any manifest and serious wrongful act or omission, the applicant argues that in its specific situation there has been no involvement whatever of a national authority, but only the refusal of the Commission to provide specific calculation data, so that the case-law of the Court which considers such actions admissible applies to this action. It appears from the case-law that even if an action founded on Article 215 puts in question the legality or deficiency of Community acts, the Court's jurisdiction to declare the action admissible is not affected. In the present case the wrongful act or omission lies in the Commission's refusal to provide specific information, that is, an individual and not a legislative act. As a result the Commission cannot maintain that this case lies within the legislative powers of the Community institutions.With reference to the obvious absence of any real damage the applicant states that it is not disputed that if the Commission had been prepared to provide the information requested Tradax could have established either that the price calculation had been properly performed, in which case the matter would have gone no further, or that it had in fact paid too much in import duties, in which case it was entitled to bring a claim for repayment of the excess before a national court. Since the Commission refused to define its position with regard to the questions put to it and refused to provide the information, the applicant was obliged to bring this action before the Court. The fact that the applicant has put a value of one florin on its damage indicates simply that it is in fact claiming to have suffered damage, which it has wished to evaluate in a reasonable manner.