C-64/82

JUDGMENT OF 15. 3. 1984 — CASE 64/82

In Case 64/82

TRADAX GRAANHANDEL BV, Amsterdam, represented by Léon Goffin, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of E. Arendt, 34 Rue Philippe-II, applicant,

v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Jean-François Verstrynge, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of Oreste Montako, a member of its Legal Department, Jean Monnet Building, Kirchberg, defendant,

APPLICATION

gives the following

TRADAX / COMMISSION

JUDGMENT

Facts and Issues

The facts of the case, the course of the in accordance with the Management procedure and the conclusions, sub­ Committee procedure. Paragraph (5) missions and arguments of the parties provides that the Commission is to fix may be summarized as follows: the amount of the levies mentioned in the article.

JUDGMENT OF 15. 3. 1984 — CASE 64/82

regulations made within that framework, According to the Commission, trom 2 8 fixed the import levies applicable, inter to 31 October 1980 maize quotations on alia, to cereals for the period 28 to 31 the Chicago exchange were generally October 1980 inclusive. The recitals in on the upward trend subject to some the preambles to those regulations refer irregular fluctuations, since that period to the application of the rules on offer preceded by a few days the United States prices and quotations laid down in presidential elections of 5 November Commission Regulation No 2035/80 of 1980, in which context the embargo 31 July 1980 fixing the import levies on, placed by the United States on the inter alia, cereals (Official Journal, export of cereals to the USSR, after the L 200, p. 1). events in Afghanistan, had some effect.

TRADAX / COMMISSION

By registered letter of 24 November The written procedure then resumed its 1981 the applicant formally called upon normal course with regard to the the Commission, under Article 175 of substance of the case. the Treaty, to define its position on the request which had been made to it. Upon hearing the report of the Judge- Rapporteur and the views of the By letter of 14 December 1981, signed Advocate General the Court decided to by Mr Williamson but without indication open the oral procedure without any of his grade or capacity, the Commission replied as follows: preparatory inquiry.

I beg to inform you that the cif prices for By order of 18 May 1983 the Court the dates referred to were determined in decided to assign the case to the First strict compliance with the provisions Chamber, pursuant to Article 95 (1) and applicable. (2) of the Rules of Procedure of the Court, no Member State or institution Mr Williamson is Deputy Director having requested that the case be decided General in Directorate General VI (Agri­ in plenary session. culture) with particular responsibility for Directorate VI / C (Organization of Markets in Crop Products), of which Division I (Cereals and derived products) II — Conclusions of the parties forms part.

Tradax did not reply to that letter but, The applicant claims that the Court should: considering it an inadequate reply, brought its action on 15 Februaiy 1982, claiming that the levies which it was Primarily, declare that the Commission obliged to pay were clearly too high has failed to define its position after because they had been calculated on the being called upon on 24 November 1981 basis of a cif price for Rotterdam which to do so; was lower than the price which should have resulted from the application of In the alternative, declare void the Article 13 of Regulation No 2727/75. Commission's reply of 14 December 1981;

In its objection of inadmissibility, first in Order Tradax to pay the costs. so far as the action is based on Article 175 of the Treaty, the Commission starts In its observations on the objection, the by contending that there is no general applicant claims that the Court should: obligation to adopt the measure requested. No provision of the regu­ Declare the action for failure to act and lations concerned, be it Article 13 of the the action for damages to be admissible; basic regulations of the Council or any provision of the Commission's im­ In the alternative, declare the action for plementing regulation, implies the a declaration of nullity and the action existence of such an obligation; nor can for damages to be admissible; such an obligation be inferred from the Commission's customary conduct in this In any event, declare the action for regard, since the Commission generally damages to be admissible; refuses to make known the data on which such calculations are based. In all three cases, if the Commission's According to the Commission, the contention is accepted, declare that the imposition of levies falls under the replies and documents claimed by the powers which it must exercise daily, applicant shall be placed at the disposal adopting regulations in a short space of of the Court and of the applicant; time. That power has not however been left to the entire discretion of the In the alternative, reserve its decision on Commission but must be exercised in the objection for the final judgment, and compliance with certain rules in a well- order that the replies and documents be defined framework (the Management placed at the disposal of the Court and Committee procedure), which guarantees of the applicant; efficiency in the Commission's work. If the Commission were obliged Order the Commission to pay the costs. systematically to divulge information on undertakings, that might not only give In its defence the Commission contends the competitors of such undertakings that the Court should: information on their commercial policy, but also induce the undertakings no Declare the action brought by Tradax on longer to give the Commission such the basis of Articles 173, 175, 178 and information on their commercial policy; 215 of the Treaty to be inadmissible, the effect would be to make the fixing of or in the alternative dismiss it as levies in the framework of the agri­ unfounded; cultural policy difficult if not quite impossible. Nor can it be inferred from the case-law of the Court (in particular Order Tradax to pay the costs.

Case 16/65, Schwarze [1965] ECR 877) action was directed towards obtaining a that the Commission is in general general measure, not only would such a obliged systematically to divulge measure be contrary to the division of technical data used in the calculation of powers laid down by the Treaty, since its levies which it is to fix. In this case adoption would be covered by the Tradax has referred to the existence of powers reserved to the Council, but its such information neither in its letters of general nature would in itself be a 12 October and 24 November 1981 nor sufficient reason to declare the action in its application to the Court. Fur­ inadmissible. thermore, the measure which the Commission could have adopted in reply to the question from Tradax must be assimilated to an opinion or a In so far as the action is based on Article recommendation, and not to a decision; 173 of the Treaty, the Commission first in Case 6/70 {Borromeo [1970] ECR raises a procedural argument to the 815) the Court held that in a case of this effect that it is inadmissible. If an sort the action must be declared applicant brings an action with two inadmissible. 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 The Commission also argues that the claim meets the same fate. The letter sent by Mr Williamson, dated 14 Commission takes the view that if the December 1981, amounts to defining its main portion of the application made position. That letter shows a clear link pursuant to Article 175 is inadmissible, it between Tradax's calling upon the follows that all the other heads of action Commission to act and the Commission's which are subsidiary to it must also be defining of its position. That clearly considered inadmissible. 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 This aspect of the application, according in response to the demand, which was to the Commission, is inadmissible also formulated in general terms. 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 în order for the action for failure to act Article 189 of the Treaty, nor can it be to be admissible the institution in considered equivalent or assimilated to question must have failed to address to such a decision. In article 175 the the person concerned an act other than a expression "decision" is used [sic] in a recommendation or an opinion. In this wider sense than in the second paragraph case the act requested must be of Article 173. The measure by which the assimilated to a recommendation or an Commission defined its position in opinion. 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 Finally, the Commission argues that if it to be considered a decision, according to were possible to accept that Tradax's the case-law of the Court, it would have

to be a measure adopted by the For its part the applicant argues that competent authority, to be intended to the fact that the Council and the have legal effects, to be mandatory in Commission have laid down in detail the nature, to constitute the termination of method of calculating levies shows an internal procedure and to be a clearly that the Commission has no definitive decision. The Commission discretion in making such calculations maintains that the letter fails to meet but has on the contrary a series of legal most if not all of those conditions. In obligations. Every person concerned particular it is not a decision which may must therefore have the opportunity to be described as a measure adopted by the check the legality. of the calculations. competent authority, since the de­ The Commission considers it sufficient liberations of the Commission are subject to rely on a general obligation of secrecy to the observance of certain rules, but does not indicate which specific including that of the collective re­ interests it is supposed to protect, so that sponsibility of the Commissioners. the Court cannot form its own opinion Moreover if the applicant still had reason on the matter. The argument that the to suppose that the letter amounted to a Commission's conduct is justified be­ decision, it had the opportunity to cause it refuses as a general rule to make inquire further of the Commission, known data of this kind cannot be which it did not do. 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 In regard to the inadmissibility of the obliged to make available to it the claim based on Article 215 of the Treaty documents requested. 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 sub­ sidiary 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 The applicant points out that the wishes the Court to decide a question of Commission did not define its position in principle in the area of legal interpret­ its letter of 14 December 1981. The ation, without finding it necessary to applicant's request did not seek to obtain show that it has suffered real damage. the Commission's opinion as to whether

it had calculated the prices in a legal The Commission's letter of 14 December manner, but to obtain the data on the 1981 does not, according to the ap­ basis of which the prices had been plicant, amount to a decision within ue calculated and permission to inspect meaning of the second paragraph of those data at the Commission's premises Article 173, for the simple reason that in order itself to check the legality of the the letter in no way defines a position on calculation. The Commission in fact the request, with the result that the claim refrained from defining its position on for failure to act is admissible, which the substance of the request. 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 The request was directed not towards declaration of nullity. If the claim for obtaining an opinion or a recommen­ failure to act were to be declared dation but towards obtaining infor­ inadmissible because the Commissicn mation, that is, the fulfilment by the had defined its position in its letter, it Commission of its obligation, in the would necessarily follow that the claim circumstances of this case, to provide for a declaration of nullity was such information. Nowhere in the admissible. If it could not be accepted applicant's letters does it ask for an that the acts of senior officials in the opinion or a recommendation. 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 pos­ ition as deputy director general Mr The applicant denies having had the Williamson was competent to adopt intention to obtain a measure of general measures in the agricultural sector application since it considered that there having legal consequences. 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. According to the applicant the decision of 14 December 1981 has legal con­ sequences. The refusal to provide infor­ mation prevents the applicant from checking whether the regulation fixing the levies was applied correctly from the With reference to the inadmissibility of factual and legal points of view. For the the claim based on Article 173, the applicant it is a case of a definite legal applicant shows that it is precisely effect damaging its interests, contrary to because the two obviously distinct claims the general principles of good ad­ are mutually exclusive that they may be ministration. The Commission is wrong brought in a single application, on condition that one is made alternative to still to maintain that its refusal to inform the other. Tradax of the correct data used for calculating the levies does not harm the

With reference to the obvious absence of any real damage the applicant states that Finally, the letter in question amounts to it is not disputed that if the Commission an implied refusal, and not a preparatory had been prepared to provide the infor­ act. mation requested Tradax could have established either that the price calcu­ lation 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 With reference to the claim for damages repayment of the excess before a based on Article 215 the applicant argues national court. Since the Commission that it is not alternative in nature but was refused to define its position with regard brought expressly, whatever the results in to the questions put to it and refused to the primary claim for failure to act or the provide the information, the applicant alternative claim for a declaration of was obliged to bring this action before nullity. The procedural argument made the Court. The fact that the applicant

TRADAX / COMMISSION

has put a value of one florin on its basis of published offers. Article 1 of damage indicates simply that it is in fact Regulation No 156/67 obliges the claiming to have suffered damage, which Commission to determine cif prices on it has wished to evaluate in a reasonable the basis of all offers of which it may manner. have knowledge through Member States or by its own means and the quotations on the main commercial exchanges, which obviously are generally known, and on the basis of information of which it has knowledge, that is, exclusively pub­ lished offers and exchange quotations.

In regard to the claim for failure to act the applicant makes a first submission relating to breach of the general In regard to the facts Tradax argues that principle of good administration, inas­ it may have been mistaken in supposing, much as the Commission did not define on the basis of its information, that the its position on the request for communi­ cif prices for maize calculated by the cation of the precise data used in fixing Commission for 28, 29, 30 and 31 the cif prices for the period in question October 1980- were too low. It was in or on the request to consult the order to have a precise idea of the price documents used, and inasmuch as it calculations made by the Commission simply asserted that the calculations had that it asked the Commission for the been carried out correctly and lawfully right to inspect the calculation data it without in any way justifying or giving had actually used. Why, moreover, reasons for that assertion. Yet the should the applicant have asked the principle of good administration requires Commission for information if it could that in the perspective of an ad­ already have formed a clear and ministration conscious of its duties, complete view of the market in question persons subject to the Commission's on the basis of the data already in its measures should know the reasons for possession? With regard to the data with those measures; moreover the general which it should have provided the rule must be applied whereby those to Commission the applicant states that whom a decision of a public authority is those could only be data which the directed which significantly harms their Commission already had since they came interests must be kept informed. It is in from representative grain dealers and the interest both of the public service and official agencies, and Article 1 of Regu­ of the individuals concerned that the lation No 156/67 requires the Com­ latter should receive from the Com­ mission to have knowledge of offers mission all the information necessary for made on the world market. The checking the legality and correctness of applicant was therefore right to ask the amount of the levy which they have questions since it appears, among other paid. The applicant has no other way to things, that the Commission refuses to obtain satisfaction than by bringing an determine cif prices exclusively on the action, whereas it could have saved itself

the trouble; where the Commission is In regard to the claim for a declaration asked to explain its actions with regard of nullity the applicant makes a first to a specific matter it is obliged to reply. submission alleging a breach of Article 190 of the Treaty inasmuch as the Commission failed to state the grounds for its decision refusing to communicate exact data and the documents on the basis of which it calculated the cif prices for the period in question, whereas even The applicant makes a second submission if that is not a decision within the relating to breach of the principle of meaning of Article 190, it is in any event legality and the principle of protection of an act within the meaning of Article 173 this rights of those affected, inasmuch as and is contrary to the principle of the Commission failed to define its good administration, which requires the position in the circumstances indicated Commission to make known the infor­ above, whereas on the one hand, in mation requested. order for the Community legal order to be effective the Commission must reply to legitimate requests, and, on the other hand, the protection of the addressees and other persons concerned and the requirements of proper judicial review make it necessary that the Commission The applicant makes a second submission put at the disposal of an undertaking claiming breach of the principle of which so requests all the technical data legality and the principle whereby per­ on the basis of which it has calculated sons affected by administrative measures the prices (cf. judgment in Case 16/65, must be properly treated according referred to above). to law, inasmuch as the Commission refused to comply with the requests, whereas according to those principles the person concerned should, when he so requests, be enabled to check the Commission's acts and should not be The applicant makes a third submission obliged to obtain satisfaction by long and relating to breach of the principle of expensive procedures. legal certainty and the principle of protection of legitimate expectation, inasmuch as the Commission failed to give the information and permission requested, whereas on the one hand the principle of legal certainty requires that each person subject to the law should be Finally, the applicant makes a third enabled to discover with certainty his submission alleging breach of the rights and obligations and therefore to principle of legal certainty and the ensure that the Commission has made no principle of the protection of legitimate factual or legal errors in determining a expectation, inasmuch as the Com­ cif price as the basis for levies, and on mission refused to comply with the the other hand the principle of the applicant's requests, whereas that refusal protection of legitimate expectation was contrary to the said principles for implies a fortiori the right to be placed in the same reasons as those adduced in a position to check whether legislation in support of the third submission made in force has been properly applied. respect of the claim for failure to act.

The Commission replies first that, at­ tached to its application, Tradax pre­ sented to the Court facts which it had not previously communicated to the Commission in its letters of 12 October and of 24 November 1981, or in any other way at any other time. Those specific facts concerning maize deal for the most part not with the price at which sales or transactions were actually concluded but with offers or proposals made by vendors on the market in question. The difference between the actual prices on the one hand and offers on the other is of fundamental importance in the differences of opinion between the Commission and Tradax. The Commission takes the view that in appraising the situation of the market any confusion between offers and actual

JUDGMENT OF 15. 3'. 1984 — CASE 64/82

With regard to the claim based on With reference to the claim based on Articles 178 and 215 of the Treaty, the Article 173 of the Treaty, the letter of 14 Commission repeats that as it has already December 1981 contains no final refusal clearly shown its action or inaction did

TRADAX / COMMISSION

not constitute a breach of any of the Finally, the causal link between the principles referred to above or indeed of conduct in question and the damage any superior rule of law; this is sufficient alleged is in no way proved; on the for the dismissal as unfounded of contrary, it is Tradax's own attitude Tradax's claim based on Articles 178 and which has brought upon it the damage 215 of the Treaty. Tradax's view that the which it is said to have suffered. In those Commission can commit a wrongful act circumstances Tradax's claim on the or omission even where it acts legally is basis of Articles 178 and 215 should be diametrically opposed to the case-law of dismissed as unfounded. the Court which includes the illegality of the conduct alleged against the institutions among the conditions which must be met before the Community can IV — Oral procedure become liable. In regard to the damage alluded to Tradax gives no specific fact or The parties presented oral argument at argument to show that it has suffered the sitting on 22 September 1983. any real damage whatever; nor does it give any information concerning the The Advocate General presented his method of calculation of the damage opinion at the sitting on 27 October alleged. 1983.

Decision

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 us calculation of the levies applicable to maize imports for the period 28 to 31 October 1980 inclusive.

s 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 inter­ national 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 unrep­ resentative 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.

TRADAX / COMMISSION

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.

Admissibility

n 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 infor­ mation 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

i3 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.

i7 The Commission submits that the principle of good administration docs not apply m areas in winch 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

JUDGMENT OF 15. 3. 1984 — CASE 64/82

applicant has not shown in what way the action or inaction of the Commission could have harmed a "legally established position".

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.

TRADAX / COMMISSION

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.

JUDGMENT OF 15. 3. 1984 — CASE 64/82

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.

2. Orders the applicant to pay the costs.

Koopmans O'Keeffe Bosco

Delivered in open court in Luxembourg on 15 March 1984.

For the Registrar

D. Louterman T. Koopmans

Administrator President of the First Chamber