C-87/89

Mr President, the marketing years 1984/85 to 1987/88 2 Members of the Court, pursuant to Regulation No 989/84 3to the detriment of the tomato processing under- takings affiliated to Sonito. The reduction came about because the frauds caused the guarantee threshold laid down in Regu- lation No 989/84 to be exceeded. A — Facts Moreover, the undertakings were exposed to a distortion of competition because the Italian and Greek processors received aids to which they were not entitled (Sonito's letters of 17 October 1986 and 19 September 1988 to the Commission). 1. These proceedings concern an According to the applicants, the application for annulment and a claim for Commission has a duty, where necessary, to damages brought by an association of carry out investigations, to bring actions to French undertakings in the tomato sector establish an infringement of the Treaty (Sonito) and some of its members against against the Member States concerned when the Commission. they have failed to fulfil their supervisory duties incumbent on them under Community law, and also to rectify the incorrect data and apply the aid accordingly (Sonito's letter of 17 October 1986 to the Commission). In a letter of 5 May 1987, Sonito took up the Commission's reply to a 2. The application for annulment under parliamentary question in which the Article 173 of the EEC Treaty is directed Commission referred to frauds amounting against the Commission's decision, apparent to ECU 6.5 million. It asked the from its letter of 17 January 1989 to the Commission to provide it with details, for applicants' legal representatives, to take no each marketing year, of the cases found to action on a complaint by which Sonito drew exist in each of the Member States so that, the Commission's attention to the fact that as it explained, it could enforce its claims its members had suffered damage on account of fraudulent information supplied by Italian and Greek tomato producers regarding the quality and, above all, the quantity of their production in the 2 — The aids in question were fixed by the Commission: marketing years 1983/84 to 1985/86. As a (i) for the 1984/85 marketing year, by Regulation (EEC) result of those frauds, in particular the noti- No 1925/84 of 5 July 1984 (OJ 1984, L 179, p 15), (ii) for the 1985/86 marketing year, by Regulation (EEC) fication of inflated processing figures, the No 2222/85 of 31 July 1985 (OJ 1985, L 205, production aid provided for by Regulation p . 16); (iii) for the 1986/87 marketing year, by Regulation (EEC) No 426/86 1 was considerably reduced in No 2077/86 of 30 June 1986 (OJ 1986, L 179, p. 11); (iv) for the 1987/88 marketing year, by Regulation (EEC) * No 2160/87 of 22 July 1987 (OJ 1987, L 202, p. 32). Original language: German. 1 — Council Regulation (EEC) No 426/86 of 24 February 3 — Council Regulation (EEC) N o 989/84 of 31 March 1984 1986 on the common organization of the market in introducing a system of guarantee thresholds for certain products processed from fruit and vegetables (OJ 1986, processed fruit and vegetable products (OJ 1984, L 103, L 49, p. 1) p. 19).

8. The Commission asks for the application 4. The applicants seek a declaration that 'the to be rejected, with costs, as inadmissible, or decision not to act on their complaint which in the alternative as unfounded, and it was communicated to them by letter of the contests the applicants' submissions. Commission dated 17 January 1989 is void'5 because it is unlawful on a number of grounds. 9. With regard to the facts, the parties are in dispute on the question of the extent to which the production data notified by Italy and Greece were reliable or distorted on 5. With their claim for damages the account of frauds. I will deal only in so far applicants seek an order requiring the as is necessary with the (otherwise Commission to pay the following sums with undisputed) facts and the submissions of the interest to the undertakings affiliated to parties in Part B of my Opinion. For the Sonito that have brought the action: rest, I refer to the Report for the Hearing.

(i) the difference between the production B — Opinion aid they actually received in the marketing years 1984/85 to 1987/88 and the aid they would have received I — Application for annulment but for the abatement;

4 — The letter also concerns another complaint, which relates to the peach sector and is unconnected with the present dispute. 10. 1. Before I can deal with the question 5 — My emphasis. whether the application for annulment is

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11. I am referring here quite deliberately to the claim submitted in the application orig- inating the proceedings because the Court has consistently held that, under Article 38(1)(c) of the Rules of Procedure, an applicant may not subsequently alter his claim; that is true for the reply stage and 13. A different conclusion could be arrived even more for the hearing. 6 The at only if it were clear from the application submissions of the parties concerning the originating the proceedings that, in so far as subject-matter of the application, in the Commission had also refused to correct particular the submissions of the applicants the disputed data or refused to support the which are not contained in their application, applicants in their actions before the can therefore only be taken into national courts, that was also — or instead consideration as argument on the question of the refusal to take action under Article of interpretation which has arisen. 169 — the subject-matter of the dispute. In that case, because of the unambiguous wording of the claim, an equally unam- biguous clarification would have been required to justify the assumption that the claim did in fact have a different or a wider subject-matter. There is no such clarifi- 12. As I mentioned at the beginning, 7the cation. On the contrary, page 2 of the application refers expressly to the contested application originating the proceedings letter of 17 January 1989 from the states: 'The subject-matter of the present Commission. The extract quoted from that application for annulment under Article 173 letter alone makes it very clear what is at of the EEC Treaty is the decision to take no issue there, namely the question previously action on the complaint notified by that raised between the parties as to whether the letter of 17 January 1989 (Annex I)'. In so Commission should bring an action against far as it is then a question of Sonito's request for the Commission to correct the 6 — Judgments of 25 September 1979 in Case 232/78 disputed figures and/or to support the Commission v France [1979] ECR 2729 and of 18 October applicants in the criminal proceedings 1979 in Case 125/78 GEMA v Commission [1979] ECR 3173 referred to, the application nowhere makes 7 — Section A. it sufficiently clear how the conduct of the

Commission complained of in that regard is laid down in the second paragraph of related to the letter in question and, conse- Article 173 of the EEC Treaty, for two quently, to the application for annulment. reasons. Firstly, as the Court has stated, an The application states, in fact, that in the application for an annulment of that kind is contested letter the Commission did not inadmissible in principle because 'the deal with the problem of the harm caused to initiation of this procedure (procedure of French processors due to the effects of the Article 169) is part of the administrative guarantee threshold (my emphasis). In the stage thereof and no measure taken by the reply, it is further pointed out that Sonito's Commission during this stage has any request to the Commission that it should binding force'. 8 Therefore, the subject- draw the necessary conclusions from the matter of the dispute is not a decision alleged frauds for the application of the within the meaning of the second paragraph guarantee threshold and consequently for of Article 173. the fixing of the level of aid, was not granted. That confirms once more what is already clear, namely the limited nature of the application. 16. Secondly, that provision requires that the applicant is not only directly but also individually concerned by the contested measure. That requirement is not met in the case of actions for annulment against a 14. Consequently, in my view, it must be refusal to commence proceedings for breach assumed that the application for annulment of the Treaty, as the Court of Justice has relates only to the Commission's refusal to only recently confirmed. 9 bring actions against Italy and Greece to establish an infringement of the Treaty. The applicants have described that interpre- tation, which is also the defendant's, in particular at the hearing, as incorrect, but 17. The judgments of the Court of Justice they have not withdrawn the application. In cited by the applicants during the hearing 10 so far as they now complain that the do not lead to a different conclusion either: Commission failed to act because it did not those judgments concern essentially cases in reply to part of Sonito's complaint, it is which the Court upheld the right of action conceptually impossible for that complaint of third parties who were not addressees of to be taken into consideration in the context the contested measure where, and because, of the application for annulment. Since no those persons occupied a specially defined, action has been brought to establish a legally protected place in the relevant failure to act within the meaning of Article administrative procedure owing to circum- 175 of the EEC Treaty, I do not need to stances of fact and law, so that the measures deal with that submission. could adversely affect their individual legitimate interests. In those cases, the

Court decided that the applicants were indi- affiliated companies, but also Sonito would vidually concerned by the measures in have a right of action. 12 question. 20. 3. Any claim for annulment in respect of the Commission's refusal to adapt the production aids in the marketing years at issue on account of the modified production data would also be inadmissible. In that regard, reference should be made first to the 18. With regard to that procedural aspect, clear provisions of Articles 5(5) and 22 of it can be deduced from the scheme of the Regulation No 426/86 and Article 3(c) of Treaty, as discernable in Articles 169 and Regulation 516/77 13 on the one hand and 170 of the EEC Treaty, that only the Article 11 et seq. of Regulation No Commission and the Member States are 1599/84 14and Article 4 of Regulation No entitled to bring an action to establish an 729/70 15 on the other. According to those infringement of the Treaty. That would be provisions, the Commission has the task of difficult to reconcile with the granting of fixing the level of aid applicable for all such a privileged position to private economic operators whilst the Member complainants in the preliminary procedure States are responsible for the actual grant of under Article 169. Moreover, there is no the aid to individual applicants. 16 The basis for doing so contained in the text of applicants challenge the Commission's the Treaty. That is consistent with the conduct in its field of competence and take position of such complainants in substantive the view that the Commission is under a law, with regard to which the Court has duty to increase the aid. Such a measure already stated that: 11 would have to be adopted in the form of regulations amending the regulations fixing the aids for the marketing years 1984/85 to 1987/88. 17 In accordance with the stated

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OPINION OF MR LENZ — CASE C-87/89

purpose of Commission measures fixing appear to have made this necessary — aids, 1 8 the amending regulations would at least in favour of the French have general application under the second processors; paragraph of Article 189. As the Commission correctly points out, the applicants would not be individually (iii) the Commission did not assist the concerned by those measures; they would applicants in pursuing actions before be concerned only in their objective capacity national courts; in particular it did not as producers of processed-tomato products, provide them with any information just like other producers operating in that regarding the frauds of which it had sector in the Community. I see no way in become aware. which they could be identified within that group like individual addressees. 19 The question whether the applicants would, as they claim, be directly concerned by the 23. Basically, therefore, the admissibility amendments, may remain open. and substance of each of those claims is to be considered below, taking into account the relevant submission in each case. 21. Consequently, the application for annulment would also be inadmissible on that interpretation of the claim. 24. (b) In that context, however, we can immediately rule out consideration of the submission that the Commission wrongly failed to bring an action for breach of the II — The claim for damages Treaty. The applicants' claim for damages — like their claim for annulment — was based first of all on the claim that the 22. 1. (a) As I mentioned in my review of Commission's failure to take any action on the facts, the applicants are seeking the complaint was unlawful. As I have compensation for three different kinds of already pointed out, that alludes to the damage, in respect of which they rely essen- submission that the Commission failed to tially on three submissions. They submit commence proceedings to establish that: infringement of the Treaty.

proceedings for breach of the Treaty. The the sums of aid claimed by those entitled, or applicants' arguments at the hearing were (2) structured the aid in such a way that the along the same lines. applicants would not have been adversely affected by the guarantee thresholds being exceeded as a result of frauds in Italy and Greece. All that can be discerned only very vaguely in the application. However, I think 26. It therefore appears clear to me that that is the only way in which the that — even if the application actually meets arguments in question can be understood. the requirements of Article 38(1)(c) — the applicants have abandoned the abovemen- tioned submission in the course of the proceedings. 29. (a) In that regard, it is doubtful whether the claim is even admissible in view of Article 178 of the EEC Treaty under which I see no reason not to accept that decision the Court of Justice has jurisdiction in reached in the context of the arrangements claims for damages only if they concern the between the parties. Therefore, Community's liability for damage caused by consideration of that submission is its institutions or servants. unnecessary.

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The Member States may carry damage may have been caused, in any way out random checks and are required to whatever, by the conduct of the examine the processors' records annually. Commission at issue. They are to 'take all necessary measures to ensure correct application of the production aid system and all necessary steps to prevent and punish fraud in respect thereof' (Article 14(4) of Regulation No 1599/84). Pursuant to Article 19 of Regulation No 1599/84 the Member States then notify certain data to the Commission which is basically a summary of the data collected from the processors, for the Commission's purposes.

it. However, pursuant to Article 9(2) of disputed by the applicants. On the other Regulation No 729/70, it is entitled to carry hand, the Member States' checks showed out on-the-spot inspections itself; where it that on account of frauds certain sums of considers that irregularities or negligence aid — which have still not been precisely have taken place, it may, by informing the determined by amount and marketing Member States thereof, require them under year — were wrongly paid. 26 Article 6 of Regulation No 2 8 3 / 7 2 " to hold an inquiry themselves. 24 — Established case-law: see the judgments of 26 February 1986 in Case 175/84 Krohn v Commission [1986] ECR 753 22 — Council Regulation (EEC) No 1320/85 of 23 May 1985 and of 7 July 1987 in loined Cases 89/86 and 91/86 on temporary measures for production aid to processed L'Étoile commerciale ana CNTA v Commission [1987] tomato products (OJ 1985, L 137, p. 41).

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S O N I T O AND OTHERS v COMMISSION

34. The parties are obviously at one in conflict with applications for annulment, the assuming that the changes that result Court, in its judgment in Krohn, confirming therefrom were not reflected in the aids what has been established case-law since the fixed for the marketing years 1983/84 to judgment in Schoppenstedt,30 ruled that: 1987/88. Unlike in the Francesconi case, 27 in which the Commission's duty to inform and supervise were at issue and not its legislative competence, it would be for the Commission, in accordance with the distri- 'As the Court has pointed out above, the bution of tasks described, to take account of action provided for by Article 178 and the those findings for reassessing the level of second paragraph of Anicie 215 of the aid. Therefore, logic does not preclude the Treaty was introduced as an autonomous alleged damage being at least partly caused form of action with a particular purpose to by the unlawful acts of the Commission. In fulfil. It differs from an action for my opinion, that must suffice to confirm the annulment in particular in that its purpose is admissibility of the application. The not to set aside a specific measure but to question whether a wrongful act, damage repair the damage caused by an and the necessary causal relationship institution'. 31 actually exist, relates to the substance of the application.

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O P I N I O N O F MR LENZ — CASE C-87/89

It has not been suggested that the Commission did not take into consideration, when adopting the various regulations, specific proven discrep- ancies in the actual production figures 38. In so far as the Commission is accused supplied by processors. However, under of not having increased, in the regulations Article 5(5) of Regulation No 426/86, the relating to the marketing years 1984/85 to aid must be fixed before the beginning of 1987/88, the aids for all Community each marketing year. I do not take the view processors taking account of the frauds that fixing the aid after that time is found to exist, that allegation concerns the precluded in principle — at least not if the Community's liability for legislative acts. aid (in the event of an amendment) is to be Since the acts concerned involve choices of increased; the provision is surely intended economic policy, a specific form of unlaw- only to ensure that economic operators can fulness is required: such acts may give rise adjust in good time to the situation in the to the Community's liability only if a suffi- new marketing year. Nevertheless, it is

account. Similar forms of words are found 40. Therefore, the question to be in Article 2(2) and (3) of Regulation No considered is whether in failing to adopt 1277/84. The first sentence of Article 5(1) such an amendment the Commission of Regulation No 426/86 sets out an committed a flagrant violation of the kind absolute limit to the discretion: 'The described above. In that respect, it is not sufficient to establish an infringement of the 32 — Established case-law; see the judgment of 2 December prohibition of discrimination laid down in 1971 in Case 5/71, op cit.; most recently confirmed in the judgment of 28 November 1989 in Case C-122/86 the second subparagraph of Article 40(3) of Epicheiriseon and Others v Commission and Council [1989] the EEC Treaty, which could be seen, in ECR 3959.

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not certain. The applicants' vaguely expressed view, which is contested by the Commission, that every case of the 43. The present case exhibits exactly the guarantee threshold being exceeded was due opposite characteristics. Viewed in absolute to the fraudulent data provided by Italian terms, interference in the legal sphere of and Greek processors is totally unsubstan- those concerned is, as far as we know, tiated and in the final analysis not material, negligible. The applicants, upon whom it because, as already stated, the Commission was incumbent to prove that the conditions can take into account only those discrep- for a grave infringement, as mentioned ancies which have been established with above, existed, have not provided any

42. In view of those facts, reference should paragraph 52 (judgment of 30 May 1989, ECR 1553, at p. 1561). be made to the judgment of the Court of 4 37 — For the sake of completeness only, I set out the following October 1979 in Case 238/78 Ireks-Arkady v approximate calculation; in Annex 9 to the application, the Council and Commission, 35 which applicants calculate that if the threshold had not been exceeded, they would have received aid amounting to ECU 50 million in the marketing years in question. Since,

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processors, which is supposed to be limited increase the amount of aid and secondly on by the aid scheme, is not significantly the accusation that the Commission did not increased and, in particular the situation support Sonito in the criminal proceedings with regard to competition is not substan- to which Sonito was, or wished to be, made tially changed. a civil party.

48. (b) Should the Court not take my view, I would suggest that the application should be dismissed as unfounded in any event. Since the submission that the Commission was wrong not to amend the aid regulations 46. 3. In addition, the applicants also seek compensation for their economic damage 38 — See the judgment of 14 May 1975 in Case 74/74 CNTA v and base their claim firstly on the Commission [1975] ECR 523, paragraph 1 and of 2 June 1976 in Joined Cases 56 to 60/74 Kampffmeyer and Others submission that the Commission did not v Commission and Council [1976] ECR 711, paragraph 1.

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49. Finally, it is likewise unclear to what 53. The claim must therefore be dismissed. extent the applicants would have expected compensation for the economic damage which they allegedly suffered because of the effects on the guarantee threshold — for which they seek compensation in full — if they had received the desired information. Compensation in the amount indicated, III — Costs including compensation for the damage arising from production stoppages in various factories is, in my view, completely out of the question. A claim restricted to compen- sation for the damage specifically caused by the Commission's refusal has not been made 54. Costs are to be awarded pursuant to by the applicants. Article 69(2) of the Rules of Procedure.

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C — Conclusion

55. In conclusion, I propose that:

(a) the application for annulment (claim 1) should be dismissed as inadmissible;