C-89/86

7. The detailed rules for applying the 3. (b) Compensation for the damage system of subsidies for oil seeds were suffered, since by virtue of that decision the subsequently laid down in Regulation No intervention agency, Société interprofes- 1204/72. Pursuant to that regulation sionnelle des oléagineux (SIDO), required (Article 3 (1)), the control is to be exercised the aid to be refunded to it; 'from the time the seeds enter the oil mill until they are processed for oil production'. For control purposes, Article 5 of the same · 4. (c) In the alternative, the annulment of regulation provides that the Community the Commission Regulation No 1204/72 of certificate referred to in Article 4 of Regu- 7 June 1972 2 laying down detailed rules for lation No 2114/71 is to contain, in the application of the subsidy system for oil particular, 'one part, designated ID, seeds. certifying that the quantity of seeds harvested in the Community... is subject to . . . control'; by virtue of Article 10 of I — Summary of the facts Regulation No 1204/72, 'the ID part of the certificate makes it obligatory to process the 5. Article 27 (1) of Regulation No identified quantity within a period of 270 136/66/EEC of the Council of 22 days after its date of issue'. September 1966 3 on the establishment of a

* Translated from the Portuguese. 8. In France, the subsidy system is operated 1 — Official Journal 1985, L 267, p. 24. by the SIDO. 2 — Official Journal, English Special Edition 1972 (II), p. 493. 3 — Official Journal, English Special Edition 1965-66, p. 221. 4 — Official Journal, English Special Edition 1971 (III), p. 826.

11. The financing of those subsidies by the 14. By a letter dated 27 January 1986 the EAGGF gave rise to various exchanges of SIDO required L'Étoile commerciale to pay correspondence between the Commission the amount of the security which it had and the French Ministry of Agriculture, and provided for CNTA, referring to the the Commission maintained its view that the Commission Decision of 28 August 1985 subsidies did not qualify for reimbursement and to the summary report. The amount by the EAGGF since, under the Community was forwarded to it with a letter dated 21 rules, the ID certificates could not be issued February 1986. after the seeds were processed or indeed after their entry into the mill. That position is also expressly stated in the Commission's summary report on the clearance of the EAGGF accounts (Guarantee Section) for 15. On 26 and 27 March, L'Étoile the financial years 1980 and 1981. It was on commerciale and CNTA brought the the basis of that report that, on 28 August present actions.

OPINION OF MR DA CRUZ VILAÇA —JOINED CASES 89 AND 91/86

17. A — Let us first examine the objection measure. that the part of the application seeking the partial annulment of Decision 85/456 is 25. The fact that that decision had reper- inadmissible. cussions affecting the applicants can, however, be deduced from the summary 18. In that connection the Commission reports relating to the decision on the contends not only that the application is out clearance of accounts. of time, having been lodged beyond the time-limit provided for in the third 26. But those reports were notified only to paragraph of Article 173 of the EEC Treaty, the Member State to which they were but also that the decision is not of direct addressed and not to the applicants. and individual concern to the applicants, as Accordingly, in this case too the date of required by the second paragraph of that notification cannot be regarded as setting article. time running for the purposes of the time-limit laid down in the third paragraph

20. As we shall see, I do not consider that that fact on the same day by means of a to be the case. letter sent to it by its bank. In both cases, the relevant date is, therefore, 4 February 21. But, if for some reason a different view 1986. were to prevail, I could not reach any conclusion other than that the application 28. Since the applications were lodged was lodged in time. within a period of two months as from that date, they must be regarded as having been

ÉTOILE COMMERCIALE AND CNTA v COMMISSION

30. I analysed those requirements, in the they would not have been obliged to repay light of the decisions of the Court, in the the sum in question. Opinion which I delivered recently in Case 333/85 Mannesmann-Röhrenwerke v Commission [1987] ECR 1381. 37. (b) However, it is only superficially possible to attribute to the decision on the clearance of accounts the obligation to repay to the SIDO the subsidies advanced 31. In the present case, the decision by it. purports expressly to be addressed to the French Republic. 38. All things considered, no other conclusion can be drawn than that the reason for the repayment was, ultimately, to 32. Can it nevertheless be regarded as a be found in the intervention agency's failure decision which is 'of direct and individual to comply with the Community rules. It was concern' to the applicants? that agency which, by granting the subsidies (subject to the provision of a security, as a precautionary measure) to the applicant in 33. (a) The Commission contends that its violation of the Community rules, created decisions on the clearance of accounts are the circumstances in which, subsequently, concerned exclusively with relations the Commission took the view that they between it and the Member States (in this were not eligible for EAGGF financing and case, France) and that, therefore, it is not the SIDO found itself constrained to call the contested decision, but rather that for the sums advanced to be repaid to it. adopted by the national intervention agency, which directly affects the interests of the undertakings concerned. 39. As expressly required by Article 4 of Regulation No 729/70 of the Council of 21 April 1970,5 the decision on the payments to be made in accordance 'with Community 34. And the latter decision can be chal- rules and national legislation' is the respon- lenged by the persons to whom it is sibility of the national intervention agencies addressed only before a national court. appointed by the Member States.

41. The whole system of common organ- tralized system of management of the ization of the markets, like that of the common agricultural policy laid down in market in oils and fats, is designed to make Regulation No 729/70, thus passing back to the national authority responsible for the Commission responsibility for decisions measures intended to regularize the agri- which it ought to have adopted itself. cultural markets, and this applies to the grant of subsidies. 45. Could it not, however, be said that the Commission's decision refusing to recognize the aids in question placed the national 42. The grant of those subsidies by the authority under an obligation to arrange for national authorities is subject to Community recovery of the subsidies, without having law, in particular Anicie 3 (1) of Regulation any margin of discretion in that respect, 7 No 729/70, which limits financing by the regardless of whether the subsidies were EAGGF to intervention 'undertaken granted against the provision of a security according to the Community rules'. or unconditionally?

ÉTOILE COMMERCIALE AND CNTA v COMMISSION

50. In short, as laid down in Article 8 (1), cases it is not possible to recover sums the functions of control which are unduly paid to the recipients in circum- incumbent upon the competent national stances where, viewed objectively, authorities, namely preventing and pena- Community law has been incorrectly applied lizing irregularities and recovering any sums on the basis of an interpretation adopted in lost, are to be exercised 'in accordance with good faith by the national authorities. In national provisions laid down by law, regu- those circumstances, the sums which the lation or administrative action' since, as national authorities considered themselves Community law stands at the present time, entitled to pay have to be paid by the it does not contain specific provisions to Member States, since the Commission take their place. cannot charge to the EAGGF expenditure incurred in breach of the Community rules.

51. That means that — subject to the limits imposed by Community law, to which I referred earlier — 'in the absence of provisions of Community law disputes 55. This confirms that it is the national concerning the recovery of amounts unduly intervention authorities which are paid under Community law must be decided responsible for decisions as to whether to by national courts pursuant to their own grant or to withhold aid. national law'. 9

OPINION OF MR DA CRUZ VILAÇA — JOINED CASES 89 AND 91/86

national agency but to the Commission. Commission not merely a power to express Such a refusal would then be merely condi- a view but rather authority to impose a tional or provisional and would not become particular decision on the national auth- final until the adoption of the decision orities. Since the Commission used that confirming the clearance of the EAGGF power to indicate to the national inter- accounts. vention authority what decision was to be taken, the Court considered that an action against the Commission decision was 58. Apart from leading to unacceptable admissible, the alleged illegality on which legal uncertainty, such a view entirely the applicant's claim was based being attrib- disregards the general principles underlying utable to the latter decision. the institutional system of the Community, to which I have just referred. 63. In the case under review here, by 59. The purpose of a Commission decision granting the subsidies on terms contrary to on the clearance of the accounts for expen- Community law and, moreover, making diture to be financed by the EAGGF is thus, them subject to a condition — the provision simply, as the Court has already held, 13 'to of a security — which was not provided for establish whether the expenditure was by Community law, the incurred by the national authorities in accordance with the Community provisions'. In the sphere of relations with traders, such decisions thus have a declaratory rather SIDO misused its power of appraisal and it than a constitutive function, since the direct was that fact which made it necessary to effects to which those traders are subject exercise the 'non-discretionary power' to derive from the decisions adopted by the require recovery of the subsidies (or national intervention authorities in the enforcement of the guarantee furnished for exercise of their own powers. that purpose).

67. 'According to an established body of decisions of the Court, the application for 71. In the event of any unlawful act having compensation provided for by Article 178 given rise to the alleged loss, it is therefore and the second paragraph of Article 215 the French intervention agency that would of the Treaty was introduced as an be responsible and not the Commission. autonomous form of an action with a particular purpose to fulfil within the system of actions and subject to conditions on its use dictated by its specific nature'. 17 72. The claims for compensation for loss made under Articles 178 and the second paragraph of Article 215 of the Treaty must therefore be considered inadmissible since 68. Accordingly, its purpose is not 'to this Court lacks jurisdiction. It is the French enable the Court to examine the validity of courts, therefore, which have jurisdiction to decisions taken by national agencies deal with such claims. responsible for the implementation of certain measures within the framework of the common agricultural policy or to assess the financial consequences resulting from 73. Furthermore, it seems that recourse to invalidity of such decisions'. 18 the national courts in this case would provide an effective means of protecting the parties involved, and might enable compen- 69. It has also been consistently held by the sation to be paid for the alleged loss. This Court that 'the combined provisions of satisfies the additional condition laid down Articles 178 and 215 of the Treaty only give by the Court concerning the obligation to jurisdiction to the Court to award compen- exhaust the remedies available in the sation for damage caused by the national courts, so that the action for Community institutions or by their servants compensation may be brought within 'the in the performance of their duties or, in whole system of legal protection for the other words, for damage capable of giving individual established by the Treaty'. 20 rise to non-contractual liability on the part of the Community. Damage caused by national institutions, on the other hand, can IV — The claim for annulment of Regu- only give rise to liability on the part of those lation No 1204/72 institutions, and the national courts retain sole jurisdiction to order compensation for such damage'. 19 74. The applicants also seek, in the alter- native, a declaration that Regulation No 1204/72 is void, since they consider that the 70. The recovery of the subsidies granted to penalty of forfeiture of the subsidies for CNTA is imputable not to the Commission mere failure to comply with a time-limit but rather to the SIDO which was not provided for in that regulation is contrary to acting under any instructions from the the principle of proportionality. Commission but merely by virtue of its obli- 20 — Krohn, supra, paragraph 27. The applicants' reference at 17 —· Krohn, stipra, paragraph 26. the hearing to the judgment of 17 December 1981 in Case 197/80 Walzmiihle v Commission [1981] ECR 3211, is 18 — Judgment of 12 December 1979 in Case 12/79 Wagner v irrelevant, since in that case, in view of the particular Comminimi [1979] ECR 3657; see Inleragra, supra, p. 2248. circumstances of the parties, there was no possibility of a 19 ·— Krohn, supra, paragraph 18. remedy in the national courts.

75. It is clear that if that claim were made when they are affected by individual by way of a direct action under Article 173 22 implementing decisions, but would have it would be inadmissible. the perverse effect of facilitating the review of ťhe legality of measures adopted by the institutions, without the conditions 76. However, it was made clear by the concerning locus standi and time-limits laid applicants, in their reply to the objection of down in Article 173 being fulfilled. inadmissibility, that that claim for annulment was made not by way of a direct action under Article 173 but as an objection of illegality under Article 184 of the Treaty. 78. The Commission also stated at the However, it has already been held by the hearing, although with some hesitation, that 21 Court that 'the possibility provided by the claim for annulment of Regulation No Article 184 of the Treaty of invoking the 1204/72 might be inadmissible by virtue of inapplicability of a regulation does not Article 42 (2) of the Rules of Procedure, constitute an independent right of action since in the application that claim was made and may only be sought incidentally. In the under Article 173 and the objection of inad­ absence of such an independent right of missibility was made under Article 184 only action the applicants cannot invoke Article in the reply. That does not however seem to 184'. me to be the case. The applicants relied upon Article 173 only for the claim that Decision 85/456 should be declared void. 77. Having concluded that a direct action As regards the claim that Regulation No for the annulment of the decision on the 1204/72 should be declared void, the clearance of the accounts is inadmissible, I applicants made no reference to its legal must also conclude that the objection that basis in their application. But even if that Regulation No 1204/72 is illegal is also had not. been the case, it does not seem to inadmissible. Otherwise, Article 184 would me that a new issue has been raised. The not achieve its desired effect of providing issue was, from the outset, the illegality of those persons who are precluded by the the regulation. What the applicants did in second paragraph of Article 173 from insti­ their reply was merely to say that their tuting proceedings directly with the benefit submission in that connection was not a of a judicial review of legislative measures principal claim but merely an objection.