C-353/88

4. Following receipt of this letter, 2. Between 29 February and 4 March 1988 Mr Di Domenico registered for the an EEC-China Business Week was held in business week. In completing the ques­ Brussels under the aegis of the Commission. tionnaire attached to the registration form, The business week was organized by Price he stated that his company's main field of Waterhouse, Belgium ('Price Waterhouse') activity was in relation to embroidered acting under a contract made with the table-cloths, doilies and handkerchiefs, and Commission. Under the contract, dated that he wished to have a bilateral meeting 18 June 1987, Price Waterhouse inter alia with representatives of the China National undertook to promote the business week by Arts and Craft Import-Export Corporation providing information to interested circles ('CNART'), which deals in textile products. and to participate in drawing up a detailed A meeting was duly organized by Price programme, including the organization of Waterhouse on 29 February 1988, and individual meetings between businessmen. Mr Di Domenico attended in the hope of These tasks were to be carried out on the concluding a contract for the import of basis of general guidelines drawn up by the embroidered handkerchiefs. However, competent Commission officials and in close according to the applicants, at the meeting consultation with them. the Chinese representatives informed Mr Di Domenico that it was impossible for them to do business with him because the Italian import quota for the type of goods in question was already exhausted. In this connection, it should be mentioned that the 3. By a standard letter dated 29 December agreement between the European Economic 1987, the Institut italien pour le commerce Community and the People's Republic of extérieur (Italian Institute for Foreign China on trade in textile products, initialled

on 18 July 1979 and approved by Council 7. The Commission objects to the admissi­ Decision No 86/669/EEC (Official Journal bility of the action against itself, arguing 1986, L 389, p. 1) provides in Article 3 for that the proceedings should be directed only the fixing by China of annual quotas on the against the EEC, represented by the export to the Community of the products Commission. It also objects to the admissi­ listed in Annex III. The export of such bility of the action in so far as it is brought products (which include cotton handker­ by Mr Di Domenico, arguing that he has chiefs) is subject to a system of double no interest in bringing proceedings in his control by the exporting and importing own right. On the procedural plane, the country set out in Protocol A to the Commission, invoking the principle of lis agreement. pendens, argues that the Court should stay the proceedings pending the outcome of the parallel actions brought by the same applicants against the same defendants in the Belgian courts. The Commission also argues that a stay is necessary in view of the related national action against Price Waterhouse. 5. Brian tex and Mr Di Domenico promptly brought proceedings before the tribunal de première instance, Brussels, seeking damages against Price Waterhouse and against the EEC and the Commission under Article 1382 of the Belgian Civil Code. Shortly afterwards they also lodged the present action for damages against the EEC and the Commission, seeking BFR 96 380 in respect of Mr Di Domenico's travel and 8. As regards the substance, the hotel expenses, BFR 200 000 for four Commission argues that the organization of wasted days in Brussels, and BFR 500 000 the business week was the responsibility of in respect of loss of anticipated business. Price Waterhouse acting for its own account under a contract for services (contrat d'entreprise) and not as the Commission's agent: any wrongful act or omission on the part of Price Waterhouse was therefore not imputable to the Community. In any event, the Commission disputes the charge that the 6. Essentially, in these proceedings the applicants were provided with misleading applicants argue that the Commission was at information: at no stage was it suggested by fault in providing, through its agents Price anyone to the applicants that they would Waterhouse, misleading information to the definitely be able to conclude contracts at effect that the Chinese representatives were the business week. The Commission adds in a position to do business whereas in fact, that even if it had been asked at the relevant because of the exhaustion of the relevant time about the availability of quota, it quota, this was not the case. Since would not have been able to give a precise (according to the applicants) the answer. This is because under the agreement Commission was responsible for monitoring between the EEC and China on trade in quotas on trade in textiles with China, it textile products mentioned above it is for should have been aware of the true position the competent Chinese and Member State and should have informed the applicants authorities, when granting export licences or accordingly. import authorizations on quota-restricted

12. I also consider it unnecessary to consider the preliminary question which arises on the merits of this case, namely, 9. As regards the admissibility of the action whether Price Waterhouse, in undertaking against itself, the Commission is no doubt the organization of the business week, was formally correct in stating that proceedings acting as the agent of the Commission and under Article 215 of the Treaty should in whether in consequence, in accordance with principle be directed against the relevant the general principles common to the laws Community, represented by the institution of the Member States referred to in or institutions against which the matter Article 215(2) of the Treaty, its acts or giving rise to liability is alleged (see Joined omissions are imputable to the Community. Cases 63 to 69/72 Werbahn v Council The issue of imputability is only relevant if [1973] ECR 1229, paragraphs 6 and 7). there is in the first place a wrongful act or However, in practice the Court has, as in omission, and in my view the applicants those cases, accepted actions brought have not succeeded in establishing that this directly against the relevant institution or is the case. institutions. The error, if any, is one of pure form which does not affect the substance of the application and I do not consider that it is necessary to declare any part of the action inadmissible on that ground. 13. In my opinion, on the facts of this case, a wrongful act could only have arisen if Price Waterhouse (acting for the Commission) had represented to the applicants that they would definitely be able 10. As to the standing of Mr Di Domenico, to make contracts for the purchase of I agree with the Commission that he has no specific quantities of the goods in which individual interest in bringing proceedings. they were interested at the business week. He plainly attended the business week in his However, no such representation was made. capacity as managing director of Briantex The information disseminated by the Italian and not in his personal capacity, and any Institute for Foreign Trade which induced damage resulting from that participation is the applicants to attend the business week therefore a matter for Briantex. The point is (and which, it is not denied, did originate one of somewhat more substance than the with Price Waterhouse), was of a general previous point and I would therefore nature and contained no specific represen­ declare the action inadmissible in so far as it tation of the type mentioned. Nor does it is brought by Mr Di Domenico. assist the applicants to analyse the alleged

(2) for the rest, dismiss the action as unfounded;

(3) order the applicants to pay the costs of these proceedings.