Krohn & Co. Import - Export GmbH & Co. KG v Commission of the European Communities (175/84)

Contents

Judgment of the Court26 February 1986^noteIn Case 175/84Krohn & Co. Import-Export (GmbH & Co. KG), Hamburg, represented by Modest, Giindisch and Landry, Rechtsanwälte, Hamburg, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 34 B rue Philippe-Il,vCommission of the European Communities, represented by Peter Karpenstein, acting as Agent, with an address for service in Luxembourg at the office of Manfred Beschel, a Member of the Commission's Legal Department, Jean Monnet Building,THE COURTcomposed of: Lord Mackenzie Stuart, President, U. Everling, K. Bahlmann (Presidents of Chambers), G. Bosco, T. Koopmans, O. Due, Y. Galmot, C. Kakouris and T. F. O'Higgins, Judges,Advocate General: G. F. ManciniRegistrar: H. A. Rühi, Principal Administratorafter hearing the Opinion of the Advocate General delivered at the sitting on 19 November 1985,gives the following

Judgment

(The account of the facts and issues which is contained in the complete text of the judgment is not reproduced)

Decision

1By an application lodged at the Court Registry on 4 July 1984, Krohn & Co. brought an action under the second paragraph of Article 215 of the EEC Treaty for compensation for damage incurred as a result of the refusal of the Bundesanstalt für landwirtschaftliche Marktordnung, acting on instructions given by the Commission, to grant it import licences for the import of products falling within subheading 07.06 A of the Common Customs Tariff (manioc) from Thailand.

2The import arrangements governing the products at issue were introduced by the Cooperation Agreement between the European Economic Community and the Kingdom of Thailand approved by the Council Decision of 19 July 1982 (Official Journal 1982, L 219, p. 52). The Cooperation Agreement lays down annual quotas limiting the quantities of manioc which may be imported into the EEC at the preferential rate of import levy of 6% ad valorem.

3By Articles 1 and 5 of the Cooperation Agreement Thailand undertakes to manage its exports of manioc to the Community in such a way as to ensure that those annual quotas are not exceeded. That management is to be ensured by means of certificates of exports to the Community issued by the Thai authorities, the date of issue of which determines the annual quota to which the quantities shipped are to be attributed.

4For its part, the Community undertook to make the necessary arrangements for the authorities of the Member States to issue import licences subject the presentation of the appropriate Thai export certificates. Accordingly, on 22 July 1982, the Commission adopted Commission Regulation No 2029/82 laying down detailed rules for implementing the import arrangements applicable to products falling with subheading 07.06 A of the Common Customs Tariff, originating in Thailand and exported from that country in 1982 (Official Journal 1982, L 218 p. 8).

5Under the provisions of Commission Regulation No 2029/82, applications for import licences for products falling within subheading 07.06 A of the Common Customs Tariff must be submitted to the competent authorities in the Member States (Article 4), which must communicate to the Commission the information specified in Article 9 ‘each day... concerning each application for a licence’.

6By virtue of Article 7 (1) of the regulation, the competent national authority is required to issue the requested import licence ‘except where the Commission has informed the competent authorities of the Member State by telex that the conditions laid down in the Cooperation Agreement have not been fulfilled’.

7On 16 November 1982, Krohn (the applicant) which is engaged in the import and wholesale trade in cereals and animal feedingstuffs, requested the Bundesanstalt pursuant to Regulation No 2029/82 to issue it with five import licences to cover the importation from Thailand of a total of 54895472 kg of manioc, enclosing with its request a number of export certificates which had been issued on 18 August and 7 September 1982.

8In view of the length of time which had elapsed between the issue of the Thai export certificates and Krohn's submission of its request for import licences, the Commission decided to ascertain whether the conditions laid down in the EECThailand Cooperation Agreement were fulfilled. In order to do so it requested the Bundesanstalt by a telex message dated 23 November 1982 to give it details of the date on which the manioc was shipped in Thailand, the name of the ship on which the manioc was transported, and the date and place at which customs formalities were expected to be completed.

9By telex messages dated 23 November and 7 December 1982, the Bundesanstalt informed Krohn of the requirements imposed by the Commission and requested it to provide the necessary information.

10More specifically, in connection with a request for an import licence relating to only 500 tonnes, the Commission informed the Bundesanstalt by telex on 21 December 1982 that the information supplied by Krohn could not be accepted as adequate and that the requested import licence should therefore not be issued.

11After considering that telex message and all the information supplied to it by Krohn with regard to the other quantities at issue, the Bundesanstalt informed Krohn by a decision dated 23 December 1982 of its refusal to issue it with any of the import licences requested.

12On 25 May 1983, following an exchange of correspondance with the Bundesanstalt, Krohn brought an action before the Verwaltungsgericht [Administrative Court] Frankfurt am Main for the annulment of the decision of 23 December 1982 and for an order requiring the Bundesanstalt to issue it with the requested import licences at the reduced rate of import levy of 6% ad valorem.

13In addition, by a letter dated 6 June 1983, Krohn submitted to the Commission a request for compensation, relying on the illegality of the Commission's refusal to allow the issue of the import licences and the scale of the losses which it incurred as a result. The Commission rejected that request on 28 July 1983.

14In support of its application in these proceedings, Krohn states that it suffered considerable losses as a result of the failure to issue the import licences. It argues that it satisfied all the conditions imposed by the relevant rules in order to be eligible for the requested import licences and that the additional requirements imposed by the Commission were unlawful. It therefore claims that the Commission should be ordered to compensate it for the damage which it has incurred.

15In response to doubts which the Commission has expressed as to the admissibility of the action, without, however, raising an objection under Article 91 (1) of the Rules of Procedure, the Court decided of its own motion pursuant to Article 92 (2) of the Rules of Procedure to decide upon the three following arguments against admissibility:(a) The refusal to issue the requested import licences was the decision of the Bundesanstalt. Consequently, only that national body can incur liability and these proceedings fall outside the jurisdiction of the Court.(b) Even if the Commission is potentially liable, the applicant must have previously exhausted the remedies available to it before the national courts for the purposes of obtaining the annulment of the Bundesanstalt^ decision.(c) Finally, in any event, upholding the admissibility of the action would amount to nullifying the legal effects of the Commission's individual decisions with regard to the applicant (telex messages of 23 November and 21 December 1982), which were not challenged in due time and have become definitive.

The first argument against admissibility

16According to the Commission, the action for compensation provided- for by Articles 178 and 215 of the EEC Treaty is not intended to enable the Court to examine the validity of decisions taken by national agencies within the framework of the Common Agricultural Policy or to assess the financial consequences of such national decisions for individuals (see on this point the judgment of 12 December 1979 in Case 12/79 Hans-Otto Wagner GmbHv Commission [1979] ECR 3657; judgment of 27 March 1980 in Case 133/79 Sucrimex v Commission [1980] ECR 1299; judgment of 10 June 1982 in Case 217/81 Interagra v Commission [1982] ECR 2233). The authority of those decisions is not weakened by the fact that in this instance the applicable rules empowered the Commission to give instructions to the national authorities.

17Krohn, however, contends that in this case the Commission exercised the power conferred upon it by Article 7 of Regulation No 2029/82 to give instructions to the national authorities and must be regarded as the true author of the decision from which it claims the damage resulted.

18The Court, wishes to point out that the combined provisions of Articles 178 and 215 of the Treaty only give jurisdiction to the Court to award compensation for damage caused by the Community institutions or by their servants in the performance of their duties, or in other words for damage capable of giving rise to non-contractual liability on the part of the Community. Damage caused by national institutions, on the other hand, can only give rise to liability on the part of those institutions, and the national courts retain sole jurisdiction to order compensation for such damage.

19Where, as in this case, the decision adversely affecting the applicant was adopted by a national body acting in order to ensure the implementation of Community rules, it is necessary, in order to establish the jurisdiction of the Court, to determine whether the unlawful conduct alleged in support of the application for compensation is in fact the responsibility of a Community institution and cannot be attributed to the national body.

20In support of its application for compensation, the applicant confines itself to pleading the illegality of the telex messages sent to the Bundesanstalt by the Commission on 23 November and 21 December 1982.

21With regard to that point, it is clear from the very wording of Article 7 (1) of Regulation No 2029/82 that its provisions do not merely confer upon the Commission the right to give an opinion on the decision to be adopted in the context of the cooperation between itself and the national bodies responsible for applying the Community rules, but actually empower it to insist that such national bodies refuse requests for import licences where the conditions laid down in the Cooperation Agreement have not been fulfilled.

22Moreover, the information submitted by the parties and their arguments before the Court make it clear that the Commission's telex messages of 23 November and 21 December 1982 were intended as an effective exercise of the power conferred upon it by the provisions and that their effect was to instruct the Bundesanstalt to refuse the import licences at issue if no satisfactory reply was given to the requests for information made to Krohn.

23It follows from the foregoing that the unlawful conduct alleged by the applicant in order to establish its claim for compensation is to be attributed not to the Bundesanstalt, which was bound to comply with the Commission's instructions, but to the Commission itself. The Court therefore has jurisdiction to entertain the action brought by Krohn, and the first argument against admissibility must be rejected.

The second argument against admissibility

24The Commission submits that according to the decisions of the Court, an application for compensation under Article 178 and the second paragraph of Article 215 of the Treaty is admissible only if the applicant has exhausted the procedure enabling him to seek the annulment of the national authority's decision by the national courts. In this case, however, Krohn has brought an action before the Verwaltungsgericht Frankfurt am Main for the annulment of the Bundesanstalt's refusal of the import licences and for an order requiring them to be issued, and that case has not reached final judgment. The applicant's rights of action under national law have therefore not been exhausted.

25Krohn argues that the application for compensation provided for by the second paragraph of Article 215 of the Treaty is in no way dependent on rights of action under national law. Furthermore, in this case an action for annulment would not have enabled it to achieve its desired objective which was to repair the damage caused to it by the refusal of the import licences.

26According to an established body of decisions of the Court, the application for compensation provided for by Article 178 and the second paragraph of Article 215 of the Treaty was introduced as an autonomous form of action with a particular purpose to fulfil within the system of actions and subject to conditions on its use dictated by its specific nature.

27Nonetheless, it is true that such actions must be examined in the light of the whole system of legal protection for the individual established by the Treaty and that the admissibility of such an action may in certain cases be dependent on the exhaustion of a national rights of action available to obtain the annulment of a national authority's decision. In order for that to be the case, however, it is necessary that those national rights of action should provide an effective means of protection for the individual concerned and be capable of resulting in compensation for the damage alleged.

28That is not the case here. There is nothing to suggest that the annulment of the Bundesanstalt's decision and the issue, after a lapse of several years, of the import licences claimed in 1982 would compensate Krohn for the damage suffered by it at that time; such an annulment would therefore not remove the need for the applicant, if it is to obtain compensation, to bring an action before the Court under Article 178 and the second paragraph of Article 215 of the Treaty.

29In those circumstances, the admissibility of this action cannot be made dependent on the exhaustion of the national rights of action available against the Bundesanstalt's decision, and the second argument against admissibility must also be rejected.

The third argument against admissibility

30The Commission notes that Krohn failed to bring an action under the second paragraph of Article 173 of the Treaty to obtain the annulment of its telex instructions to the Bundesanstalt on 23 November and 21 December 1982. Those individual decisions have thus become definitive with regard to Krohn. According to a decision of the Court (judgment of 15 July 1963 in Case 25/62 Plaumann v Commission [1963] ECR 95), an application for compensation cannot be brought if. it would nullify the legal effects of an individual decision which has become definitive.

31Krohn argues that only the Bundesanstalt's decision was notified to it and that at the time nothing indicated that the Commission had adopted an actual decision directly concerning it. In any event, the admissibility of its application cannot be conditional on its having previously brought an action for the annulment of the Commission's decision.

32As the Court has pointed out above, the action provided for by Article 178 and the second paragraph of Article 215 of the Treaty was introduced as an autonomous form of action with a particular purpose to fulfil. It differs from an action for annulment in particular in that its purpose in not to set aside a specific measure but to repair the damage caused by an institution. It follows that the existence of an individual decision which has become definitive cannot act as a bar to the admissibility of such an action.

33The decision cited by the Commission relates solely to the exceptional case where an application for compensation is brought for the payment of an amount precisely equal to the duty which the applicant was required to pay under an individual decision, so that the application seeks in fact the withdrawal of that individual decision. At all events, such considerations are foreign to this case.

34It follows that the third argument against admissibility must also be rejected.

35As the application is admissible, it is appropriate to proceed in the action to consideration of the substance and a decision.

Costs

36Costs must be reserved.

Operative part

On those grounds,THE COURThereby:

(1).Declares the application admissible;

(2).Declares that the action may proceed to consideration of the substance and a decision;

(3).Reserves the costs.

Delivered in open court in Luxembourg on 26 February 1986.