C-55/90

— the assignment of vessels to purposes 2. The need to adapt the Community other than fishing in Community fishing fleet to the new operating conditions waters'. resulting both from the introduction of economic maritime zones of two hundred miles and from the limitation on catches of certain types of fish is at the origin of the present dispute. Council Directive A final cessation premium is to be paid to 83/515/EEC of 4 October 1983 concerning the owner after the issue of the certificate certain measures to adjust capacity in the witnessing that his vessel has been struck off fisheries sector 1 (hereinafter 'the directive') the register of fishing vessels. 4 was intended to encourage the temporary withdrawal of certain vessels and a permanent reduction in the capacity 'of fishing fleets, the technical characteristics of 3. Member States are not obliged to which make it difficult to adapt them to the introduce such a system; 5 if they do so, types of fishing anticipated in the medium however, they must submit to the term', 2essentially because of the small size Commission, among other documents, a of the vessels comprising those fleets. Thus, forward plan of the measures proposed and under Article 5(1) of the directive, 'the drafts of any laws, regulations or adminis- measures to reduce production capacity trative provisions which they propose to permanently ... concern vessels the length of 3 — My emphasis: vessels the length of which between perpen- diculars is 18 metres or more are the subject of measures * Original language: French. for temporary reduction (Articles 3 and 4 of the directive). 1 — OJ 1983 L 290, p. 15. 4 — Article 5(2). 2 — Seventh recital in the preamble to the directive. 5 — Article 1(1).

adopt in implementation of the directive. 6 premium. 9 The sale was completed on The Commission is required to determine 1 August 1984. The following day Mr Cato whether the measures contemplated, in signed the application form for the final particular on the basis of their conformity cessation premium. 10 On 9 August 1984, with the directive, fulfil the conditions for the 'Excelsior' was removed from the financial contributions from the registry of fishing vessels in Fleetwood.

Two Decision 84/17/EEC of 22 December Irish nationals, Messrs Boyle and Murphy, 1983 8 (hereinafter 'the decision'). came forward as potential purchasers and expressed an interest in the vessel's engine. The sale was concluded on 14 October. Shortly afterwards, Messrs Boyle and 5. The applicant contends that it is by virtue Murphy brought the 'Excelsior' over to of this decision that he is entitled to Ireland and applied for it to be registered as compensation, in so far as the Commission a fishing vessel.

It ought to be 8 — Concerning the implementation by the United Kingdom of certain measures to adjust capacity in the fisheries sector pursuant to Council Directive 83/515/EEC (OJ 1984 9 — Pages 4 and 5 of the judgment of the High Court. L 18, p. 39). 10 — Page 8 of the judgment of the High Court.

10. Although the applicant does refer to the 11. In contrast, the objection of inadmissi- point, it does not appear to me worthwhile bility made by the United Kingdom in its to examine in detail the admissibility of the intervention requires more extensive application with regard to the five-year consideration. Quoting in particular from period of limitation laid down in Article 43 the judgment of the Court in Wagner, 1 4the of the Statute of the Court of Justice of the intervener submits, in the first place, that EEC. The point from which that period the Court is not competent to examine began to run in the present case would under Article 215 the validity of decisions appear to have been the letter posted on taken by national agencies within the 25 February 1985 in which the United framework of the Common Agricultural Kingdom informed the applicant of its Policy, and, secondly, that the present case decision not to pay the premium. Taking in fact relates to a claim for payment of account of the additional ten days granted amounts allegedly due, a matter which, to persons residing in the United Kingdom according to the judgment of the Court in by the provisions of Annex II to the Rules Sucrimex, 15 falls within the exclusive juris- of Procedure, this would mean that the period expired at midnight on 7 March 12 — Judgment in Case 20/88 Roquette Pieres v Commission 1990. Mr Cato's application was lodged at [1989] F.CR 1553. the Court Registry on 7 March 1990 and 13 — Paragraph 12 of the judgment. 14 — Judgment in Case 12/79 Wagner v Commission [1979] ECR 3657. 11 — On this point, see the observations of the United 15 — Judgment in Case 133/79 Sucrimex and Westzucker v Kingdom, II, 2.4. Commission [1980] ECR 1299.

diction of national courts. The inadmissi- protection of the individual. When an indi- bility of the application is thus raised by vidual considers that he has been injured by reason of what we are obliged to call 'the the application of a Community legislative subsidiary nature' 16 of an action based on measure that he considers illegal, he may, non-contractual liability vis-à-vis the when the implementation of the measure is remedies available under national law. left to the national authorities, contest the validity of the measure, when it is imple- mented, before a national court in an action

14. It would thus appear that, according to the case-law of the Court, the admissibility 13. As the Court noted in its judgment in of an application to the Court turns on the Unifrex, 19 question whether or not it was possible for the individual concerned to recover full compensation before national courts for the 'An established body of the case-law of the damage suffered. 21 Thus, according to an Court of Justice shows that the action for authoritative body of learned opinion, 22 if damages, pursuant to Articles 178 and 215 the action is in fact limited to recovering of the Treaty, was set up as an independent amounts levied by national authorities action, having its own particular place in the pursuant to a Community measure, the system of means of redress and subject to legality of which is disputed by the conditions for its use formulated in the light applicant, recourse to Article 215 is not of its specific purpose. It must nevertheless available, in so far as national procedures be viewed in the context of the entire system would have enabled the applicant to obtain established by the Treaty for the judicial repayment of the amount unduly paid, following a reference for a preliminary 16 — With regard to the ambiguity of this concept, see for ruling 23 and a declaration that the contested example R. Joliét, Le droit institutionnel des Communautés européennes, le contentieux, Liège 1981, p. 250; J. Rideau and J.-L. Charrier, Code de procédures 20 — Paragraph 11 of the judgment. européennes, Litec 1990, p. 183-186; M. Waelbroeck, J.-V. Louis, D. Vignes, J.-L. Dewost and 21 — For a discussion in legal literature, see R. Joliét, op. cit., pages 250 to 258; M. Waelbroeck, J.-V. Louis, G. Vandersanden in J. Mégret, Le Droit de la D. Vignes, J.-L. Dewost and G. Vandersanden, op. cit., Communauté Economique Européenne, Vol. 1, Book 10, 1983, p. 280. pages 266 to 297; J. Boulouis and R.-M. Chevallier,

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I instituting proceedings before the national must point out that the Court is faced in the courts. 25 present case with a slightly different situation. The individual act which gave rise to the damage suffered by Mr Cato, namely the refusal by the competent United Kingdom Minister to pay him the premium, 15. As Advocate General Capotorti pointed was adopted pursuant to national general out in his Opinion delivered in Granaria rules, which were approved by the III: 2 6 Community authorities as being in accordance with the directive.

Willemsen v Council and Commission [1974] ECR 675; stances of the present case are closer to the judgment in Case 74/74 CNTA v Commission [1975] 'classic hypothesis' than to the facts in the ECR 533; most recently, judgment in Case 81/86 De Boer Krohn case, which I have already cited. Buizen v Council and Commission [1987] ECR 3677; judgment in Case 175/84 Krohn v Commission [1986] Mr Cato questions the individual decision ECR 753. taken by the United Kingdom Minister only 26 — Case 90/78 Granaria v Council and Commission [1979] ECR 1081. 27 — At p. 1099. 28 — Case 175/84, cited above.

in so far as that decision applies a national 20. My view on this point is that, had scheme which is at variance with the Mr Cato obtained judicial review, the directive. Thus, the illegality essentially lies United Kingdom court would in all like- in the Scheme itself. The calling in question lihood have been led to verify the compati- of the Scheme necessarily supposes, as I bility of the Scheme with the directive and have already stated, a finding that the thus to examine the validity of the decision by the Commission is invalid. We Commission decision which approved the are here in a situation which is very close to Scheme. Pursuant to the judgment of the that in which the questioning of a measure Court in Foto-Frost,30 it would therefore adopted by a national authority also implies have been obliged to refer this last point to a prior finding that the provision of the Court by way of a request for a secondary Community law, which the preliminary ruling. Let us imagine that the national measure was designed to apply, is Court held that the United Kingdom

Since the depended on prior approval. In any event, Commission had unlawfully approved a however, neither the adoption of the scheme which did not comply with the Scheme nor that of the ministerial decision directive and had unlawfully made financial relating to Mr Cato results from the express contributions from the Community, would order of the Commission. The admissibility the unavoidable conclusion not be that aid of the present action would therefore appear granted pursuant to that scheme could no to be dependent on the exhaustion of longer be justified under Community law, remedies available under national law. particularly in the light of the provisions of Article 12 of the directive?

21. Only if the Court had declared the Commission decision invalid merely to the extent to which it approved a national 19. The main difficulty therefore is to scheme which included a particular ascertain whether the initiation of condition in addition to those set out in the proceedings before a national court would directive, might the United Kingdom court have enabled the applicant to obtain a 'satis- perhaps have been in a position to set aside factory outcome', that is to say in the present case, the payment of the premium. 30 — Case 314/85, cited above. 31 — Article 12 provides that Articles 92, 93 and 94 of the Treaty shall apply, in the field covered by this directive, to 29 — Case 175/84, cited above, at paragraph 27 of the national aid other than that provided for in Articles 3 and judgment. 5.

the application of that condition and difference in treatment between certain thereby enable Mr Cato to obtain payment cereal derivatives. The Court pointed out, of the premium. Such a solution is not self- however, that it was consequently for the evident. institutions competent in matters relating to the Common Agricultural Policy to adopt the measures necessary to correct that incompatibility. In two later judgments 35 in cases which were brought before the Court 22. Admittedly, the Court on one occasion, under the second paragraph of Article 215 after finding that a regulation was invalid of the EEC Treaty and which concerned the inasmuch as it excluded certain operators same disputed provisions, the Court, in from qualifying for an exemption from a rejecting the objection of inadmissibility co-responsibility levy, maintained in force submitted by the Community institutions, the provisions of that regulation and held that enjoined the national authorities to ensure that the operators discriminated against might benefit from that exemption, pending action by the Community legislature.32 In contrast, the Court has limited itself in other 'pursuant to t h e . . . judgments] of the judgments to ruling that the Community Court, a national court could not have provision in question was invalid, without upheld such an action [for payment] in the indicating the inferences to be drawn from absence of any provision of Community law

For those 32 — Judgment in Case 300/86 Van Landschoot v Mera [1988] reasons it is not certain that the applicant ECK 3443, at paragraphs 22, 23 and 24. 33 — Judgment in Case C-37/89 Weiser v Caisse Nationale des could have obtained a 'satisfactory outcome' Barreaux Français [1990] ECR I-2395. by this means. 34 — With regard to quellmehl: judgment in Joined Cases 117/76 and 16/77 Ruckdeschel and Others v Haupt- zollamt Hamburg-St. Annen; Diamalt v Hauntzollamt 35 — Judgments in Joined Cases 261 and 262/78 Interquell Itzehoe [1977] ECR 1753; with regard to gritz: judgment Stärke-Chemie and Diamalt v Council and Commission in Joined Cases 124/76 and 20/77 SA Moulins et Huileries [1979] ECR 3045, and in Joined Cases 61 and 113/76, 167 de Pont-a-Mousson v ONIC; Société Coopérative and 239/78, 27, 28 and 45/79 P. Dumortier Frires SA Providence Agricole de la Champagne v ONIC [1977] and Others v Council [1979] ECR 3091. ECR 1795. 36 — At paragraph 6 of each judgment.

24. I accordingly conclude, on that ground, Purchas, delivering the majority judgment in that the application is admissible. the Court of Appeal, expressly stated that: 'Happily, on the view that I have taken of the provision of the Scheme and the events 25. In the alternative, even if the Court which have taken place, the paragraphs of should decide to make the admissibility of the Scheme are in sympathy with the an action to establish liability in the Articles of the Directive so that it is not particular circumstances of the present case necessary to enter upon an exercise of dependant on the exhaustion of remedies construction of the sort envisaged in Lister's available under national law, I must point case'. 39 out that in the present case the applicant has indeed made use of those remedies. 27. It is perhaps not necessary, at the stage However, the first action was out of time of admissibility, to embark on an exam- and the court of competent jurisdiction ination of the complex issue of causality in refused to grant an extension of time, even the case of concurrence of fault, an issue though it was empowered to do so if it which properly falls for consideration in the considered that prima facie the applicant's context of the causal connection between case was not devoid of merit. It appears that the wrongful act and the damage and this action — an application for judicial consequently goes to the substance of the review — would have provided an excep- case. In my view, it is sufficient to note that tionally appropriate context for a review by the remedies under national law were used, the national court of the conformity of the that the proceedings brought were not United Kingdom Scheme with the directive. manifestly inadmissible, that the remedies have been exhausted and that they did not allow the question of the possible illegality

The Commission and the administrative public law functions which would only be reviewable in judicial review proceedings under R. S. C. United Kingdom, on the other hand, take O. 53 on the well-known principles in Associated Prov- incial Picture Houses Ltd v Wednesbury Corporation the view that the Scheme is wholly in [1948] 1 KB 223. conformity with the directive. 38 — I would refer on this point to the treatment of this question in my Opinion in Joined Cases C-87, C-88 and C-89/90 Verholen and Others v Sociale Verzekeringsbank 39 — Annex 2 to the application, judgment of the Court of Amsterdam, in particular at paragraphs 11 to 22. Appeal, p. 30.

'On receipt of a declaration submitted in pursuance of paragraph 25, the appropriate Minister may, if he is satisfied — 33. The same does not hold true, in my view, of those provisions which make payment of the premium subject to conditions which are not provided for in the (a) that the vessel to which the declaration directive. Article 5(2) of the directive states relates has been removed from the that 'the financial aid .. . shall consist of the fishing boat register, grant by Member States to the owner of a final cessation premium, fixed on a flat-rate basis per gross registered ton, . . . after the (b) that the conditions (if any) subject to issue of the certificate witnessing that the which his approval was given have been vessel has been struck off the register of observed, and fishing vessels'. Article 5(4) provides: 'All Member States shall take the necessary measures to ensure that vessels for which final cessation premiums have been paid are (c) that the foregoing requirements of this permanently barred from fishing in Part have been met in respect of the Community waters'. The conclusion which vessel, has to be drawn from those two provisions, read together, is that the owner, once his vessel has been scrapped, transferred to a third country or assigned to purposes other pay a decommissioning grant to the than fishing in Community waters, is applicant'. 40 entitled to payment of the premium as soon

40 — My emphasis. 41 — Judgment of the Court of Appeal, p. 9.

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34. The United Kingdom Scheme diverges appreciably on this point from the directive, if we combine paragraphs 23 42 and 26(b) of 35. Thus, had the United Kingdom Scheme been in strict conformity with the directive, 42 — Which provides as follows: the damage suffered by Mr Cato would (1) If the appropriate Minister is satisfied that an application for a decommissioning grant meets the never have materialized. The 'Excelsior' had foregoing requirements of this Part, he may approve been struck off the register of fishing vessels the application. (2) An approval by the appropriate Minister under on 9 August 1984. The United Kingdom sub-paragraph (1) of this paragraph may be made subject to such conditions as the appropriate Minister sees fit. 43 — Judgment of the Court of Appeal, p. 40.

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CATO v COMMISSION

'a sufficiently flagrant violation of a superior rule of law for the protection of 39. Similarly, the relevant case-law of the the individual'. 44 Court was for the greater part developed in connection with Council regulations, which arc in a way the expression of the Community's legislative activity. It has moreover been remarked in legal literature 37. The applicant submits in this regard that how much the Court has drawn inspiration there has been a breach of the principles of from solutions prevailing in a number of legal certainty and the protection of Member States with regard to liability legitimate expectations. 45 I feel that I must incurred as the result of a legislative act. 48 point out immediately on this matter that 46 — Judgment in Joined Cases 116 and 124/77 Ainylum v 44 — Case 5/71, cited above, at paragraph II of the judgment. Council and Commission [1979] ECR 3497, at paragraph 45 — There is no dispute that these are rules of law for the protection of individuals: with regard to the protection of 47 — Ibid. legitimate expectations, see judgment in Case 97/76 48 — R. Joliét, op. cit., p. 269-271; J. Rideau and J.- Merkur v Commission [1977] ECR 1063. C. Charrier, op. cit., p. 189.

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O P I N I O N OF MR D A R M O N — CASE C-55/90

42. So far as the appraisal of the damage suffered by Mr Cato is concerned, it is 40. It seems to me in any case, without sufficient to note that the non-payment of wishing to question the application in the premium, after he had sold his vessel, Community law of the 'Schutznormtheorie', clearly goes beyond the bounds of the that the requirement of a 'sufficiently serious economic risk inherent in that type of breach of a superior rule of law for the activity, even if one can still regard a self- protection of individuals', that is to say, the employed fisherman who ceases fishing and seriousness of the wrongful act, ought to be sells his means of livelihood as an economic assessed by taking into account both the operator. The particular nature of the legal context of the measure in question and damage suffered by Mr Cato is equally the more or less wide margin of discretion obvious. accorded to the institution which adopted that measure.

there may be concurrent liability on the part decision of approval taken by the of a Member State and on the part of a Commission, since if it had not been for Community institution; 5 1I do not believe, that decision the Scheme, in its present however, that this can lead the Court to form, could never have seen the light of hold that liability must be apportioned. That day. In other words, the failure by the would be tantamount to declaring that a United Kingdom to comply with the Member State is liable to a given degree, provisions of the directive was not capable something which clearly exceeds the Court's per se of causing the damage suffered by jurisdiction. In its judgment in Kampffmeyer, Mr Cato. That damage is not constituted, the Court, after recognizing the liability in in abstracto, by the fact that he did not principle of a Community institution, went receive the premium (he would also have on to request the applicants to await the been in that position if the United Kingdom outcome of national proceedings concerning had decided not to introduce a scheme for a the possible liability of the Member State in permanent reduction in its fishing capacity), question in order 'to avoid the applicants' but lies rather in his disappointed expec- being insufficiently or excessively tation, given that once he had learned of the compensated'. 5 2 I t is thus only at the existence of the Scheme and that it had compensation stage that the Court takes been approved by the Commission, and into account such liability on the part of a after complying with all the conditions set Member State as may have been determined out in the directive, he was perfectly entitled by the national courts. Consequently, it to believe that he had an indisputable right would be sufficient in the present case to to receive the premium. The direct origin of find that Mr Cato can no longer obtain any that damage lies in the unlawful approval of compensation whatever from the United the Scheme by the Community institution. Kingdom authorities before United Kingdom courts, as has already been confirmed during the oral procedure.

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47. However, I do not believe that it is induced the United Kingdom courts to necessary for the Court to engage in a order payment of the premium to the complex analysis of a possible lack of applicant, there is no purpose to be served diligence and its interaction with the by considering the lack of diligence Commission's wrongful act. Since, as I have responsible for the fact that the proceedings already said, it is not established that the initiated by Mr Cato before the national initiation of national proceedings, would, courts did not result in the Court of Justice even if followed through to their being given an opportunity to make such a conclusion, have enabled Mr Cato to obtain finding of invalidity. To put it differently, a satisfactory outcome, as it is not certain that that lack of diligence did not undeniably a finding by the Court of Justice that the contribute to the materialization of the disputed decision was invalid would have damage.

48. For those reasons I w o u l d propose that the C o u r t should:

(1) declare the application admissible and hold that there is non-contractual liability on the p a r t of the Community, inasmuch as the Commission, by Decision 8 4 / 1 7 / E E C of 22 December 1983, approved the United K i n g d o m Fishing Vessels (Financial Assistance) Scheme 1983, contrary to the provisions of Article 7(1) of Council Directive 8 3 / 5 1 5 / E E C of 4 O c t o b e r 1983 concerning certain measures to adjust capacity in the fisheries sector;

(2) request the parties to submit to it, within a period of six months following delivery of the judgment, figures relating to the a m o u n t of compensation, determined by mutual agreement, or, in the absence of such agreement, to submit to the C o u r t , within the same period, their respective sets of figures;