C-282/90

VREUGDENHIL v COMMISSION

OPINION OF MR ADVOCATE GENERAL DARMON delivered on 16 January 1992 *

Mr President, Community (...), which permits the reim­ Members of the Court, portation into the Community, free of import duties, of goods which have previously been exported from that territory.

1. In this action based on Article 178 and the second paragraph of Article 215 of the EEC Treaty, Industrie- en Handelsonder­ neming Vreugdenhil BV (hereinafter referred to as 'Vreugdenhil') seeks compen­ sation for the damage allegedly caused to it Article 2(1) of that regulation, as applicable by the Commission. at the material time, provides that goods which, at the time of their exportation from the customs territory of the Community, were the subject of customs export formalities with a view to obtaining refunds and other amounts granted on exportation 2. The case arises out of the difficulties within the framework of the common agri­ encountered by Vreugdenhil in reimporting cultural policy, could not be considered to a consignment of 211 275 kg of milk into be returned goods. the Community under the arrangements for 'returned' goods, that is to say free of import duties. The Court has already had to deal with those difficulties in the context of a reference for a preliminary ruling, on which it gave judgment on 29 June 1989. 1

The Court further stated:

Vreugdenhil and Van der Kolk brought an action for the annulment of those decisions before the College van Beroep voor het 'The consignment of milk powder involved Bedrijfsleven. They claimed in particular in the main proceedings, which came from that Article 13a, inserted in Regulation No the stocks held by the intervention agency in 1687/76 by Regulation No 45/84, was the Federal Republic of Germany, had been invalid on the ground that the Commission exported to Jordan pursuant to Commission did not have the power to derogate from Regulation (EEC) No 3295/84 of 23 the provisions of Council Regulation No November 1984 on the supply of various 754/76. lots of skimmed-milk powder as food aid (...). On its arrival in Aqaba, the shipment could no longer be used as food aid because of mould and damaged packaging. The national court decided to stay the proceedings and refer the following question to the Court for a preliminary ruling : Vreugdenhil then purchased the consignment, first sending it back to the Federal Republic of Germany and then to the Netherlands, where the milk powder "Is Article 13a of Commission Regulation was placed in store with Van der Kolk. The (EEC) No 1687/76, inserted in that regu­ two undertakings requested the Netherlands lation by Commission Regulation No customs authorities in Amersfoort for auth­ 45/84, valid?"' 2 orization to re-import the lot in question under the arrangements for returned goods.

4. In answer to that question the Court held that Article 13a was invalid on the ground that the Commission could not derive a By two decisions of 5 and 8 January 1987 power to adopt such a provision from its the Inspector of Customs and Excise in powers of implementation in agricultural Amersfoort, on behalf of the competent matters since the measure in question minister, refused that request and required concerned the arrangements for returned Van der Kolk to pay an import levy of HFL goods and thus customs law, a field exhaus­ 848 374.80. The reasons stated for the two tively covered by Council legislation. 3 decisions were in particular that by virtue of Article 13a of Regulation No 1687/76 the 2 — Paragraphs 3 to 10. goods in question, coming from inter­ 3 — See paragraphs 21 to 25.

5. As stated in the application, on 29 May concerns, in fact, the actual existence of the 1990 the President of the College van damage which Vreugdenhil claims to have Beroep voor het Bedrijfsleven (Adminis­ suffered and is thus a plea on the substance trative Court of Last Instance in matters of of the case. Even regarded as a plea on the trade and industry) ordered the Netherlands substance, it appears to be entirely inad­ authorities to reimburse the abovementioned missible inasmuch as the Commission levy of HFL 848 374.80. On 15 June 1990 introduced it only in the rejoinder, contrary Vreugdenhil requested the Commission to to Article 42(2) of the Rules of Procedure, reimburse certain costs entailed by the obli­ and Vreugdenhil was thus unable to answer gation to pay the levy in issue: first the cost it in the course of the written procedure. I of obtaining a bank guarantee because the therefore propose that it should be Netherlands authorities had agreed to await dismissed immediately. the outcome of the court proceedings before collecting the levy, provided that Vreugdenhil paid interest on the amount of the levy at the statutory rate applicable in the Netherlands and obtained a bank 8. The first objection of inadmissibility guarantee and secondly the amount of the refers to the Court's case-law according to interest which it would have received if the which: amount of the levy had remained in its possession between 7 July 1988 when, in view of the cost of the bank guarantee and the interest to be paid over, Vreugdenhil decided to pay the levy and 25 June 1990 "Where an individual considers that he has when the levy was reimbursed. It also been injured by the application of a claimed the expenses of arguing its case Community legislative measure that he before the College van Beroep voor het considers illegal, he may, when the Bedrijfsleven and the Court of Justice. By implementation of the measure is left to the letter of 17 July 1990, the Commission national authorities, contest the validity of refused to acknowledge any responsibility the measure, when it is implemented, before for the alleged damage. a national court in an action against the national authorities. That court may, or even must, as provided for in Article 177, refer the question of the validity of the 6. The Commission raises an objection of Community measure in dispute to the Court inadmissibility on the ground that the of Justice. However, the existence of such a applicant has not shown that proceedings means of redress will be capable of ensuring before the national courts could not have the effective protection of the individuals provided redress for the alleged damage. In concerned only if it may result in making its rejoinder, the Commission raises a good the alleged damage'. 4 second objection of inadmissibility based on the absence of any proof that Vreugdenhil did not pass on to its customer, its insurer or the intervention agency the risk that reimportation might be impossible. 9. In the Court's case-law, thus, the admissibility of an action for

11. The Court has already referred those difficulties back to be settled by the national courts. 13. However, the Court did in that judgment consider the substance of the question whether the Community might be liable in respect of the separate damage 12. In Roquette v Commission, 6 a case in which the applicant claimed to have suffered which the applicant had already obtained a as a result of adverse effects on conditions preliminary ruling 7 declaring the charging of competition. 9

15. That approach is coherent. If economic operators are to bring proceedings before the national courts against acts of the auth­ orities of the Member States implementing Community measures which they consider 17. In Roquette v Commission, the Court to be unlawful, then the national courts referred the questions ancillary to the reim­ must also have jurisdiction to determine bursement, in particular that of the payment questions ancillary to the recovery of of interest, back to the national court on the amounts wrongly paid over. To decide ground that it was clear from the provisions otherwise would be to oblige the economic on the Communities' own resources that operators concerned to separate their actions and bring not only proceedings before the national court in order to obtain, following a preliminary ruling declaring the relevant measure void, recovery of the amounts improperly collected but also an 'the national authorities must ensure on action for non-contractual liability before behalf of the Community and in accordance the Court of Justice in order to seek with the provisions of Community law that compensation for ancillary damage. That a certain number of dues, including the would give rise to complications both for monetary compensatory amounts, are litigants and for the Court itself which collected'. 10

ever to have been settled by the Court, I such a claim was explicitly stated in consider it only natural that the Community Roquette v Commission to be an ancillary should bear the financial consequences, question. The same is true, in my opinion, since the compensation is for ancillary of the cost of obtaining a bank guarantee, damage incurred as a result of the illegality reimbursement of which is also claimed. As of the relevant Community measure. stated above, the Netherlands authorities National courts will no doubt be reluctant, had allowed Vreugdenhil not to pay the and in my view rightly so, to make an order levy immediately, provided that it obtained against the Member State concerned if it a bank guarantee and paid interest at the has not committed any wrongful act or statutory rate applicable in the Netherlands. omission, unless it is certain that the order is After a time, Vreugdenhil considered that it made against the State acting 'on behalf of would cost less to pay the levy even without the Community'and that it will be reim­ awaiting the outcome of the reference for a bursed the amounts paid out in that respect. preliminary ruling. The interest paid to the Netherlands authorities was reimbursed pursuant to the judgment of the College van Beroep voor het Bedrijfsleven. Vreugdenhil still had to bear the costs of the bank guarantee. In my opinion, a claim for the 18. If the Commission were to decide to reimbursement of those costs is of the same refuse to take responsibility for that kind as that for the interest on the amount ancillary compensation, that decision could of the levy wrongly paid. The sole purpose in any event be challenged before this Court of the bank guarantee was to enable by the Member State concerned seeking a Vreugdenhil not to pay the levy immediately declaration that the decision was void. and thus to retain the corresponding amount in its assets.

reference for a preliminary ruling and the 25. The applicant maintains that an action fees and travelling expenses of on that count before the Netherlands courts Vreugdenhil's lawyers. There is nevertheless would have been inappropriate since the some doubt whether those sums completely College van Beroep voor het Bedrijfsleven cover the expenditure incurred by has ruled that the Netherlands State cannot Vreugdenhil. Even if that order were insuf­ be held liable when it has done no more ficient to cover that actual expenditure, it than implement an unlawful Community 13 would appear difficult to deny that they fall measure. That case-law, the applicant within the category of ancillary damage. If states, is based on the Court's judgment in 14 the Court rules on the amount of damages, Asteris v Greece. it will be necessary to determine whether at least partial compensation has not already been obtained in this regard.

26. In that judgment it was held that, since the Court had in a previous judgment ruled that the Community bore responsibility for 22. The expenditure involved in the the unlawfulness of the Community measure discussions with the Netherlands and in issue, a national authority which merely German customs authorities appears to be implemented that measure could not be held of the kind which an economic operator 15 liable on the same grounds. carrying out frequent import and export transactions will incur as an integral part of his business activity and therefore cannot, in my opinion, be regarded as damage.

27. The situation in the present case is, however, different. In Asteris, the Court had already, by two judgments delivered on the 6 23. The damage for which Vreugdenhil same day, 1 declared the Commission seeks compensation in the present action Regulation in issue void and dismissed the must therefore be regarded as ancillary to action for non-contractual liability on the the reimbursement of the levy wrongly paid. ground that the unlawful nature of the measure found in the first judgment

29. Let It should also be noted that in Asteris the applicants were pleading the liability of the Greek State in order to seek compensation before the national courts for the same damage as that for which compen­ 'It has rightly not been suggested that these sation had been sought in an action against proceedings could only be brought before a the Community, already brought and national court against a Greek intervention dismissed, for non-contractual liability. body. If the calculation of the aids is found Here, however, the Court has not yet taken to be unlawful, it is not for the national any decision as to the non-contractual intervention body to recalculate them liability of the Community since that is the according to the proper methods. This can very question with which these proceedings only be done by the Commission following are concerned. The Asteris judgment is 18 a decision of this Court.' merely a specific application of the general principle of non bis in idem. National auth­ orities having acted on behalf of the Community may not be held liable where the Court has already ruled that the Community was responsible for the unlaw­ 28. Therefore, the annulment of the fulness of the measure but that the contested regulation by the judgment in conditions under which it could be held Case 192/83 19 could not make good the liable were not present. damage suffered by the applicants since it required the Commission to adopt a new 20 system for calculating the aid in question; in the meanwhile, the applicants had to be content with the lower amount of aid which 30. It was no doubt the extreme subtlety of they had been granted. Consequently, to the Court's interpretation which, wrongly it apply a distinction advocated by legal would appear, led the College van Beroep 21 writers, which in my opinion appears to voor het Bedrijfsleven to consider, on the be a faithful reflection of the Court's basis of the ruling in Asteris, that case-law, the applicants in Asteris could not Vreugdenhil could not be awarded any obtain redress before the national courts compensation for the alleged ancillary because they were claiming benefits which damage. the Community legislation had unlawfully failed to grant them; in the present case, however, as in Roquette v Commission, the rights of action under national law made it possible to obtain compensation for the 31. Regardless of how that case-law is assessed, it must in my view nevertheless be 18 — At p. 2817. borne in mind that a claim for compensation 19 — Cited above. for the abovementioned ancillary damage 20 — Case 192/83, paragraph 36. before the Netherlands courts was doomed 21 — In particular Joliet, R., op. cit., pp. 250 to 258; Wael- to failure as the applicable national law now broeck, Louis and Vandersanden, op. cit., p. 279; Rideau, J. and Charrier, J.-L., op. cit., pp. 184 to 186. stands. Vreugdenhil cannot be criticized for

not having brought an action on that count appear to have been possible to appeal before the College van Beroep voor het against the judgment of the Tribunal Bedrijfsleven. As I stressed in my Opinion in d'Instance. While Roquette could therefore 11 Roquette Frères v Commission, justifiably be criticized for not having lodged an appeal against that judgment, such criticism would not appear to be appropriate in the present case. Moreover, it 'Where the remedies available under may be inferred from the fact that an action national law do not afford the trader for non-contractual liability is regarded by concerned effective protection of his rights, 26 legal writers as alternative to the rights of the objection of the availability of a parallel action under national law that when a State remedy cannot be countenanced, precisely which has acted on behalf of the Community because no parallel proceedings are in fact can no longer be held liable, then it is for

national courts to settle questions ancillary claim for compensation for ancillary to the recovery of sums improperly charged. damage is dismissed because of conduct In Roquette v Commission the Tribunal ascribable to the plaintiff—if insufficient d'Instance refused to award interest on the evidence is produced, for instance — then ground that the sums improperly collected any action for non-contractual liability by the French authorities had been before this Court will obviously be inad immediately transferred to the Community missible. 24 budget. Roquette had not appealed against that decision and the Court of Justice therefore declared that head of claim for non-contractual liability inadmissible in the action brought before it. 34. That is, in my opinion, merely an application of the principle of the 'right to a forum', the fundamental importance of which in the Community legal order has

whereas, even in French law, it would 26 — For example, Jolict, R., op. cit., p. 250; Rideau, J. and Charrier, J.-L, op. cit., p. 193; Boulouis, J. and Chevallier, 22 — Case 20/88 Roquette Frères v Commission [1989] ECR R.-M-, op. cit., 5th edition, p. 424.

'a sufficiently flagrant violation of a superior rule of law for the protection of 'may already serve to exclude liability when 29 the individual has occurred' a rule relating to the procedure or the form of legislative measures has been infringed; rules of this kind do not in general confer personal rights on individuals even though it can apply only where the alleged unlaw­ is clearly possible for the legislative measure fulness concerns to be declared void on formal or procedural 35 grounds'.

'legislative action involving measures of 30 economic policy". While the rules governing the distribution of powers are not, strictly speaking, formal or

That is not the case here, since the 31 — Joliét, R., p. 267; Boulouis and Chevallier, 3rd edition, p. 445. Commission acted ultra vires. 32 — Case C-70/88 Parliament v Council [1990] ECR 1-2041. 33 — See paragraphs 21 and 22. 29 — For example, Case 5/71 Zuckerfabrik Schöppenstedc v 34 — Joined Cases 83 and 94/76, 4, 15 and 40/77 HNL v Council [1971] ECR 975, paragraph 11. Council and Commission [1978] ECR 1209. 30 — Ibid., paragraph 11. 35 — [1978] ECR at p. 1232.

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VREUGDENHIL v COMMISSION

procedural provisions, they are to a large measures of economic policy is concerned, extent comparable. the criteria for determining the existence of wrongful conduct should be less strict'.

42. The considerations which have led the Court to develop that case-law are, ex 40. It was in fact a measure of adminis­ hypothesi, absent in the present case. In trative coordination intended to combat HNL v Council and Commission, the Court fraud. While it is possible to agree with noted that in the legal systems of the some authors that 'the liability of the public Member States authorities in the economic field has charac­ teristics so specific that a system which could, without serious danger or incoherent results, abandon the requirement of serious 'the public authorities can only exceptionally 38 wrongful conduct is quite inconceivable', and in special circumstances incur liability the same may not be true in the case of a for legislative measures which are the result purely legal error when one or more indi­ of choices of economic policy' viduals suffer damage as a result of that error. As some writers have stressed, 'where non-legislative action or action which, although legislative, does not involve and that 36 — Paragraph 17. 37 — Paragraph 18. 39 — Vandersanden, G. and Barav, A., op. cit., p. 336. 38 — Boulouis, J. and Chevallier, R.-M., op. cit., 3rd edition, p. 40 — See my Opinion of 18 June 1991 in Case C-55/90 Cato v 451. Commission.

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OPINION OF MR DARMON — CASE C-282/90

'this restrictive view is explained by the 44. I would not, however, suggest that the consideration that the legislative authority, Court should draw an organic distinction even where the validity of its measures is between measures adopted by the Council subject to judicial review, cannot always be and those adopted by the Commission. Such hindered in making its decisions by the a distinction is often unrelated to the prospect of applications for damages content of the measure and the way in whenever it has occasion to adopt legislative which the institution exercises its power to measures in the public interest which may adopt it. The Court, ever since its judgment 50 adversely affect the interests of indi­ in Merkur v Commission, has applied the 41 viduals'. same principles to the acts of the Commission as to those of the Council.

41 — Joined Cases 83 and 94/76, 4, 15 and 40/77 HNL v Council and Commission [1978] ECR 1209, paragraph 5. 42 — Article 2043 of the Codice Civile. 43 — Staatshaftung — Amtshaftung, BGB Paragraph 839 and 46. It would appear, moreover, that the Grundgesetz Article 34. concept of a 'grave and manifest violation' 44 — Under which, in principle, the fact that an administrative 52 act is unlawful is sufficient to constitute wrongful comprises, as some writers have stressed, conduct — see for example Conseil d'Etat 13 February 1952, Sieurs Costa, Recueil Lebon, p. 104; it is still two aspects. In its judgment in the HNL necessary to prove serious wrongful conduct in the case of case, when dismissing the action the Court liability of the public authorities in the judicial field, for operational police services, for tax authorities and where noted that the measure in issue medical liability is involved. 45 — Cour de Cassation, La Flandria, 5 November 1920, Pasi- crisie 1920, I, p. 218, and judgment of 23 April 1971, Pasi- crisie 1971, I, p. 754. 46 — Betaenkning No 214/1959 om statens og kommunernes erstatningsansvar (Report on the Lability of State and local 'affected very wide categories of traders authorities to pay compensation). (...) so that its effects on individual under­ 47 — Asser/Rutten, Verbinternissenrecht, 4 III, De Verbintenis uit de Wet, 6th edition 1983, pp. 81 and 86. takings were considerably lessened' 48 — As in German law (Sonderopfer; see the judgment of the Bundesgerichtshof of 10 June 1953, BGHZ 6, p. 270, and judgment of 25 April 1960, BGHZ 32, p. 208) or French 50 — Case 43/72 Merkur v Commission [1973] ECR 1055. law (Conseil d'Etat, La Fleurette, 14 January 1938, Recueil 51 — Boulouis, J. and Chevallier, R.-M., op. cit., 3rd edition, p. Lebon, p. 25). 451. 49 — As for example in Italian law. 52 — Joliet, R., op. cit., pp. 263 to 267.

51. That concerns the manifest nature of the unlawfulness. The Court insists that the 48. Those findings in fact concern the breach of the rule in issue must 'verge on special and serious nature of the the arbitrary'. Such a requirement of damage — the first aspect — and not the 'quasi-arbitrary' conduct is justified where, unlawfulness itself. Some authors consider as in the field of economic policy, the that the Court, when assessing the gravity Community institution enjoys broad of the conduct, has thus sought to assess the discretion, but is not relevant where the damage, although the two questions are conditions under which the institution may 55 completely different. exercise its powers are clearly and precisely defined. In such cases, the Community 53 — Joined Cases 64 and 113/76, 167 and 239/78, 27, 28 and would appear to incur liability by any 45/79 Dumortier Frères v Council [1979] ECR 3091. 54 — Paragraph 1!. infringement of the rule in issue. 55 — Sec on this point Grondman, F. La notion dc violation suffisamment caractérisée en matière de responsabilité non 56 — Paragraph 11. contractuelle, Cahiers de droit européen, 1979, No 1, p. 86; Fuss, E.-W. La responsabilité des Communautés euro­ 57 — Joined Cases 116 and 124/77 Amylum v Council and péennes pour le comportement illégal de leurs organes, Commission [1979] ECR 3497. RTDE, 1981, p. 1. 58 — Paragraph 19.

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OPINION OF MR DAEMON — CASE C-282/90

. .) insufficient by itself broad discretion in this case. for the Community to incur non-contractual liability for damage caused to individuals under the second paragraph of Article 215 63 of the EEC Treaty.' 53. I do not suggest that the Court should abandon the criterion of a violation of a superior rule of law for the protection of the individual. In other words, the mere fact of unlawfulness does not in itself constitute wrongful conduct by which the Community 56. As has been pointed out by E.-W.

59 60 Belgian law, Italian law and Danish because his personal legal position has been 61 law. In French law, the Conseil d'Etat affected. Where a public official merely (Council of State) sometimes bases a infringes a rule of objective law, that dismissal of a claim for compensation on the infringement concerns only the community; formal nature of the unlawfulness or on the it is also an infringement of the public existence of grounds justifying the contested interest. If a citizen wishes, as an individual

That and Article 28 of the Italian Constitution. criterion establishes a closer link between 61 — For example, Østre Landsret, Ufr 1972, p. 189 and p. 192, 1980, p. 955; H jester«, Ufr 1972, p. 603, 1981, 394, and the aggrieved party and the institution than 1982, p. 110. 62 — Conseil d'Etat 15 July 1964, Prat-Flottes, Recueil Lebon, p. 438; 4 November 1921, Montpilier, Recueil Lebon, p. 63 — HNL v Council and Commission, paragraph 4. 903; 7 June 1940, Vuldy, Recueil Lebon, p. 197. 64 — Op. cit., p. 9.

57. It is difficult to see how a situation in which an economic operator benefited from 59. If those principles are applied to the the unlawfulness of a Community measure present case, the application must be even though none of his personal rights dismissed. As I have said, by adopting were affected could be justified. All legis­ Article 13a of Regulation No 1687/76, the lation, even outside the field of economic Commission admittedly failed to comply policy, is liable to impose constraints, with the distribution of powers between the whether financial or otherwise, on economic institutions of the Community, but the fact operators. The fact that a measure may be that legislation was adopted by one formally unlawful, as for example where a institution rather than another which could consultative body has not given its opinion, have adopted it and which did, moreover, 67 cannot in my opinion entitle an economic subsequently introduce it cannot cause the operator to claim compensation for financial Community to incur liability unless that burdens when his personal rights are not legislation, in itself, that is to say in its involved. substantive provisions, violates a superior rule of law for the protection of the indi­ vidual and thus infringes a personal right. Vreugdenhil, on whom the burden of proof 58. The requirement that the Community lies, has not put forward the least argument 66 be governed by the rule of law means, in concerning the breach of principles such as my opinion, that an economic operator equal treatment of economic operators, whose personal rights have been infringed legal certainty or the protection of must be able, in areas other than those legitimate expectations. There is nothing in involving measures of economic policy, to the Court's previous judgment in obtain compensation for the damage Vreugdenhil and Another v Minister van suffered by proving some degree of Landbouw en Visserij referring even wrongful conduct; it does not necessarily remotely to a breach of those principles.