Avis juridique important

Order of the Court of 8 March 1991. - Emerald Meats Ltd v Commission of the European Communities. - Inadmissibility. - Affaires C-66/91 and C-66/91 R. European Court reports 1991 Page I-01143

Summary Parties Grounds Decision on costs Operative part

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1. Actions for annulment of measures - Measures against which actions may be brought - Definition - Measures having legal effects - Communication addressed by the Commission to the national bodies responsible for issuing import licences in the framework of a Community tariff quota

(EEC Treaty, Art. 173)

2. Action for damages - Action against the Commission by reason of its conduct as part of its cooperation with the national bodies responsible for applying Community rules - Inadmissibility

(EEC Treaty, Art. 178 and Art. 215, second paragraph)

1. Only a measure whose legal effects are binding on the applicant and are capable of affecting his interests is an act or decision which may be the subject of an action for annulment. That is not the case of a communication from a head of a department of the Commission addressed to the authorities of certain Member States which merely indicates procedures to ensure the proper administration of a Community tariff quota and announces the Commission' s intention to adopt certain measures.

2. An action for damages under Article 178 and the second paragraph of Article 215 of the EEC Treaty directed against conduct of the Commission forming part of the internal cooperation between the Commission and the national bodies responsible for applying Community rules is inadmissible; such cooperation cannot, as a general rule, make the Community liable to individuals.

In Cases C-66/91 and C-66/91 R,

Emerald Meats Limited, a company governed by Irish law whose registered office is in Dublin, represented by John Ratliff, Barrister of the Middle Temple, and Elizabethann Wright, Barrister of the Inn of Court of Northern Ireland, of Stanbrook and Hooper, Brussels, with an address for service in Luxembourg at the offices of Stanbrook and Hooper, 3 Rue Thomas Edison,

applicant,

v

Commission of the European Communities, represented by Peter Oliver and Thomas Van Rijn, members of its Legal Department, acting as Agents, with an address for service at the office of Guido Berardis, also a member of the Commission' s Legal Department, Wagner Centre, Kirchberg,

defendant,

APPLICATION for

in Case C-66/91,

- the annulment of the Commission' s decision of 6 February 1991 in so far as it indicates that the Commission has decided to:

- allocate the 1991 GATT quota concerned, without ensuring that Emerald Meats receives its entitlement in 1990 and 1991,

- withhold the issue of the corresponding import licences until after proceedings before the national courts, and

- prohibit the issue of import licences until the final outcome of those proceedings, unless a guarantee equivalent to the levy increased by 20% is provided;

- an order that the Community pay damages to Emerald Meats for the losses which it has and will suffer as a result of the Commission' s failure to administer and manage the 1991 allocation of the said Community tariff quota in accordance with Community law;

- an order that interest be paid on the sum awarded by way of damages;

- an order that the Commission pay the costs;

and in Case C-66/91 R

- the suspension of the operation of the Commission' s decision of 6 February 1991;

- an order for interim measures prohibiting the Commission from implementing the said decision through any subsequent decision and/or course of action based thereon;

- an order that the Commission pay the costs;

THE COURT,

composed of: O. Due, President, G.F. Mancini, T.F. O' Higgins, J.C. Moitinho de Almeida, G.C. Rodríguez Iglesias, M. Díez de Velasco (Presidents of Chambers), Sir Gordon Slynn, C.N. Kakouris, R. Joliet, F.A. Schockweiler, F. Grévisse, M. Zuleeg and P.J.G. Kapteyn, Judges,

Advocate General: J. Mischo,

Registrar: J.-G. Giraud,

gives the following

Order

1 By an application lodged at the Court Registry on 15 February 1991, Emerald Meats Limited brought an action under the second paragraph of Article 173 and Articles 178 and 215 of the EEC Treaty seeking the annulment of a decision of the Commission of 6 February 1991 and an order that the Commission pay it damages for the losses caused it by that decision.

2 By a separate document, lodged at the Court Registry on the same day, Emerald Meats submitted an application for interim measures under Article 186 of the EEC Treaty, asking the Court to order the suspension of the operation of the decision contested in the action for annulment and prohibit the Commission from implementing that decision.

3 Article 1 of Council Regulation (EEC) No 3838/90 of 20 December 1990 opening and providing for the administration of a Community tariff quota for meat of bovine animals, frozen, falling within CN Code 0202 and products falling within CN Code 0206 29 91 (1991) (Official Journal 1990 No L 367, p. 3) opens a Community tariff quota for 1991 totalling 53 000 tonnes.

4 Under Article 2 of the regulation that quota is to be divided into two parts, the first of which, equal to 85%, is to be apportioned between importers who can prove that they have imported frozen meat falling within the relevant CN codes during the last three years, and the second of which, equal to 15%, is to be apportioned between operators who can prove that they engage in trade, involving a minimum quantity and for a period to be determined, with third countries in beef and veal other than that to which these import arrangements apply and excluding meat which is the subject of inward or outward processing traffic.

5 Article 1(1) and (2) of Commission Regulation (EEC) No 3885/90 of 27 December 1990 laying down detailed rules for the application of the import arrangements provided for in Council Regulation (EEC) No 3838/90 for frozen meat of bovine animals covered by CN code 0202 and products covered by CN code 0206 29 91 (Official Journal 1990 No L 367, p. 136) reiterates the criteria for the apportionment of the two parts of the tariff quota. Article 1(3) provides that the proof of having imported frozen meat covered by the relevant CN codes during the last three years is to be provided by means of the customs document of release for free circulation or export document. It adds that for reference years 1988 and 1989 Member States may provide that proof of import may be furnished by the holder whose name appears in box 4 of import licences.

6 Article 4(1) of Regulation No 3885/90 provides that importers are to present to the competent authorities the application for an import licence together with the proof referred to in Article 1(3) by 25 January 1991 at the latest and that the Member States are to forward to the Commission, by 7 February 1991 at the latest, a list of importers.

7 Article 6(1) gives the Commission the power to decide to what extent applications may be accepted.

8 Emerald Meats is an undertaking established in Ireland which imports meat products into the Community.

9 For 1990 Emerald Meats submitted an application for import licences to the Irish authorities, supported by certain documents as proof of imports carried out during 1987, 1988 and 1989.

10 The Irish Department of Agriculture refused to recognize the validity of part of that proof and accordingly, for 1990, forwarded to the Commission pursuant to the rules in force for that year a list of importers which did not include Emerald Meats with the quantity which it claimed to have imported.

11 On 8 February 1990 the Commission adopted Regulation (EEC) No 337/90 determining the extent to which applications in the beef and veal sector for the issue of import licences lodged pursuant to Regulation (EEC) No 4024/89 may be accepted (Official Journal 1990 No L 37, p. 11).

12 Emerald Meats brought an action before the Court seeking the annulment of Regulation No 337/90 and damages in respect of non-contractual liability (Case C-106/90, still pending). An application for interim measures in which Emerald Meats sought the suspension of the operation of Regulation No 337/90 was dismissed by an Order of the President of the Court of 14 August 1990 (Case C-106/90 R, not yet published).

13 Even before starting proceedings before the Court, Emerald Meats had brought an action in the Irish courts against the decision of the Irish Department of Agriculture not to regard it as the importer of all the quantities declared for 1987, 1988 and 1989.

14 For 1991 Emerald Meats submitted an application for import licences to the United Kingdom authorities supported by the documents regarding the imports it claimed to have carried out in Ireland in 1988 and 1989 and the figures for the imports it claims to have been entitled to in 1990.

15 On 6 February 1991 the Director General for Agriculture of the Commission sent the competent authorities in Ireland and the United Kingdom a telex concerning the issue of import certificates in the context of the GATT tariff quota for 1991.

16 In that telex Ireland and the United Kingdom were requested to forward to the Commission, by 7 February 1991 at the latest, the list of applicants including in particular the quantities applied for. The Commission stated that, following those communications, it would decide to what extent applications could be accepted. The Commission further noted that certain legal proceedings which had been commenced in Ireland by Emerald Meats for recognition of its entitlement to obtain import licences had not yet been concluded and that for 1991 Emerald Meats had already applied for licences in the United Kingdom. In those circumstances the Commission was of the opinion that applications in both the United Kingdom and Ireland under Regulation No 3885/90 should be treated in such a way that double use of the same reference quantity was avoided. Accordingly the Irish and United Kingdom authorities were requested to identify all the applications concerned by the abovementioned legal proceedings and to forward to the Commission before 7 February 1991 copies of those applications together with any documents of proof which had accompanied the applications. The Commission further stated that as part of the regulation determining the extent to which applications could be accepted, it intended to provide that licences based on the applications in question could be issued only if a guarantee was lodged. That guarantee would be released only for those licences which could be considered as real GATT licences following the final outcome of the legal proceedings in Ireland.

17 Against that telex, which it regards as a decision, Emerald Meats has brought the action for annulment and the application for interim measures, and on the basis of the Commission' s allegedly unlawful conduct evinced by the document, it has brought an action for damages in respect of non-contractual liability.

18 On 21 February 1991 the Commission sent a telex to the authorities of all the Member States authorizing them to issue, as from 25 February 1991, import licences in accordance with Regulations Nos 3838/90 and 3885/90 and the draft regulation concerning quotas laid down for "traditional importers" and for "newcomers" respectively. In that telex the Commission stated that where the imports took place before the formal approval by the Commission of that draft regulation, they were to be subject to the lodging of a guarantee equal to the normal levy.

19 By separate document lodged at the Court Registry on 22 February 1991, Emerald Meats formally requested the Court to order the Commission to withdraw that telex, at the least until the Court had decided on the application for interim measures.

20 By two documents lodged at the Court Registry on 25 February 1991, the Commission raised objections of inadmissibility pursuant to Article 91 of the Rules of Procedure against the action for annulment and the action in respect of non-contractual liability (Case C-66/91) and against the application for interim measures (Case C-66/91 R).

21 With regard to the action for annulment (Case C-66/91), the Commission essentially submits that the telex of 6 February 1991 signed by the Director General for Agriculture cannot be regarded as a decision. Far from being a binding legal act, it is merely an expression of intention. The telex does not produce any legal effects on the applicant but must be considered in the light of the cooperation between the Commission services and the authorities of the Member States. The Commission adds that only if that intention were realized in a regulation might the applicant' s position be effected.

22 The Commission maintains that the action for damages (C-66/91) is also inadmissible since the position expressed in its telex does not represent an act or omission rendering the Community liable for damages to the applicant.

23 It therefore considers that the application for interim measures is also inadmissible in so far as it is based on the action for annulment.

24 By another separate document also lodged at the Court Registry on 25 February 1991 the Commission explains that in view of the problem of dual applications lodged in Ireland and the United Kingdom it had been unable to adopt the regulation on the basis of Article 6 of Regulation No 3885/90 and the draft regulation had to be submitted to the Management Committee. Since the authorities of a number of Member States had expressed their concern at the ensuing delay, the Commission had adopted a provisional solution which in no way prejudiced the rights of the traders concerned.

25 The applicant was invited to give its views on the objection of inadmissibility raised by the Commission and, in a document lodged at the Court Registry on 28 February 1991, it maintained that the telex of 6 February 1991 was indeed a decision. It points out that seen in the context of subsequent events and certain indications as to the Commission' s policy, that telex could not be regarded as a preparatory act to a future decision and already contained the Commission' s decision that there are dual applications for the 1991 allocation of tariff quota. That decision, therefore, directly and individually affects the applicant. Moreover, it denies that its action is premature. The applicant points out that there is at least prima facie evidence that the telex is indeed a decision and it has an obvious interest in ensuring that the Commission' s regulation on the allocation of that tariff quota is lawful.

26 In order to decide whether the objection of inadmissibility raised by the Commission is well-founded, it should be recalled that the Court has consistently held that only a measure whose legal effects are binding on the applicant and are capable of affecting his interests is an act or decision which may be the subject of an action for annulment under Article 173 of the Treaty (see judgment in Case 60/81, IBM v Commission [1981] ECR 2639; Order in Case 135/84, F.B. v Commission [1984] ECR 3577; judgment in Case 133/79, Sucrimex v Commission [1980] ECR 1299).

27 It should be noted that the telex of 6 February 1991 does no more than request the Member States to supply certain information to enable the Commission to administer correctly the Community GATT quota and to avoid, in particular, dual use of reference quantities. For the rest the Commission merely points out that it will at a later stage have to adopt a decision on the allocation of the tariff quota and that it intends to make the issue of import licences conditional on the lodging of a guarantee.

28 Such a communication which is from a head of a department of the Commission and merely indicates procedures to ensure the proper administration of the system and, for the rest, announces the Commission' s intention to adopt certain measures cannot be considered to be a decision capable of having legal effects with regard to the applicant.

29 It follows that the telex of 6 February 1991 does not have the characteristics of an act of the Commission which may be the subject of an action for annulment and that, therefore, the action under the second paragraph of Article 173 of the EEC Treaty must be held to be inadmissible.

30 In so far as concerns the action in respect of non-contractual liability, it should be noted that the telex and the intention of the Commission expressed therein cannot be regarded as an act or conduct capable of causing harm to another party. That telex, like all the Commission' s conduct that is complained of moreover, is part of the internal cooperation between the Commission and the national bodies responsible for applying Community rules in this field; as a general rule this cooperation cannot make the Community liable to individuals (see judgment in Sucrimex, supra).

31 It follows from the foregoing that the action in respect of non-contractual liability must also be dismissed as inadmissible in so far as it is based on Article 178 and the second paragraph of Article 215 of the EEC Treaty.

32 The application for interim measures must consequently also be dismissed as inadmissible in so far as it is based on the action for annulment.

33 The additional application for an interim order that the Commission suspend the implementation of the telex of 21 February 1991 until the Court has decided on the application for interim measures in Case C-66/91 R must also be dismissed as inadmissible in so far as that additional application is linked to the application for interim measures. However, in so far as that application for an interim order is based on the alleged unlawfulness of the telex of 21 February 1991, it suffices to point out that the latter act has not been the subject of an action for annulment.

Costs

34 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the applicant has failed in its application, it must be ordered to pay the costs.

On those grounds,

THE COURT

orders:

1. The application in Case C-66/91 is dismissed as inadmissible;

2. The application in Case C-66/91 R is dismissed as inadmissible, including the application for the suspension of the implementation of the telex of 21 February 1991;

3. The applicant shall pay the costs.

Luxembourg, 8 March 1991