C-142/91

OPINION OF MR JACOBS — CASE C-142/91

OPINION OF ADVOCATE GENERAL JACOBS delivered on 1 July 1992 *

4. On 27 May 1991 Cebag lodged an appli­ * Original language: English. cation requesting the Court to:

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CEBAG v COMMISSION

(1) order the Commission to pay it ECU final payments owed to the applicant. The 104, 508.61 plus interest in accordance only issue that arises in this case is whether with Article 18 of Regulation the application is admissible. If it is held to No 2200/87; be admissible, the applicant must succeed on the substance.

(2) annul, or partially annul or at least declare invalid, the Commission's decision contained in its telex message of 27 March 1991; Admissibility

6. In view of the Court's previous judg­ ments in Vandemoortele and Hamel, there can be no doubt that the Commission did not have the power under Regulation 8. It will be recalled that in Haniel the Com­ No 2200/87 to make deductions from the mission contended that a similar application

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OPINION OF MR JACOBS — CASE C-142/91

should be regarded as being based on Article passage in which I set out the objections to a 181 of the Treaty, in conjunction with Article contractual classification of this type of 23 of Regulation No 2200/87, in so far as the action (paragraphs 9 to 12): applicant claimed the payment of a sum of money. Article 181 of the Treaty provides:

'... In the present case the Commission relies expressly on Article 181, but I am not con­ 'The Court of Justice shall have jurisdiction vinced that the Commission is right on that to give judgment pursuant to any arbitration point. In the first place, Article 181 envisages clause contained in a contract concluded by jurisdiction conferred on the Court by a or on behalf of the Community whether that contract, not by a regulation of the Commis­ contract be governed by public or private sion. law.'

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CEBAG v COMMISSION

Vandemoortele, one would expect an 11. It might be thought, however, that in "arbitration clause" within the meaning of those cases the Court made an implied Article 181 to be accompanied by a clause decision as to the basis for its jurisdiction in specifying the law applicable to the contract. such proceedings as these. In particular, the In the absence of such a choice of law, it fact that in Haniel the Court ordered the would be for the Court to determine the Commission to pay a sum of money might proper law of the contract. Yet it would be be taken to suggest that the Court regarded strange if a Community regulation fell to the application as a contractual claim under be interpreted differently, or had different Article 181. Strictly speaking, it would seem consequences, according to the relevant that the Court could not make such an order national rules of contract. It is unnecessary under Article 173. On the other hand, it to reach that result, since the relationship could have achieved exactly the same result between the applicant and the Commission under that article, since the Commission is governed exhaustively by the legislation. It would in any event have been obliged to take is unnecessary to have recourse to Article the steps needed to comply with the judg­ 181 at all. That view has the advantage also ment under Article 176 of the Treaty. of avoiding the conclusion reached by the Commission that the action is based in part upon Article 173, in part upon Article 181.

12. The Commission does not read the Haniel judgment as confirming the position it took in that case. On the contrary, it relies on the Vandemoortele and Haniel judgments I conclude that the present action cannot be to argue that, contrary to the position it took regarded as a contractual action founded on in Haniel, the transactions entered into pur­ Article 181 of the Treaty. It must be treated suant to Regulation No 2200/87 are not con­ as an action for annulment under Article 173, tractual and that in consequence Article second paragraph. ...' 23 of that regulation cannot be construed as an arbitration clause under Article 181 of the Treaty.

17. However, I do not think that it would be 14. The Commission objects to admissibility equitable to apply Article 42(2) strictly in the under Article 173 on two grounds. First, it special circumstances of the present case. The contends that Article 42(2) of the Rules of confusion about the proper basis for the type Procedure precludes Cebag from changing of claim pursued by the applicant is due the basis of its claim — from Article 181 to largely to the terms of Article 23 of Regu­ Article 173 — in the reply. Secondly, it main­ lation No 2200/87 and was not dissipated by tains that an application under Article the Court's judgments in Vandemoortele and 173 would in any case be out of time. Hantel. If in the Vandemoortele judgment, which directly provoked the present applica­ tion, the Court had clarified the basis for its jurisdiction, Cebag would have been in no doubt as to the correct way to frame its application. Moreover, in Vandemoortele and 15. The first subparagraph of Article 42(2) Hantel the applicants did not specify the of the Rules of Procedure states: Treaty provision on which the jurisdiction of the Court was founded and yet the Court still felt able to entertain claims for annul­ ment and compensation. It would be strange if the applicant who specified a basis for the Court's jurisdiction, albeit an incorrect one, 'No new plea in law may be introduced in were to be treated less favourably than an the course of proceedings unless it is based applicant who specified no basis at all. In any on matters of law or of fact which come to event, Cebag has not in my view modified light in the course of the procedure.' the substance of its application. A claim for the annulment of the Commission's decision of 27 March 1991 formed part of the relief sought by Cebag in its application. The Commission cannot argue that by changing the basis for that claim from Article 181 to 16. If Article 42(2) were applied strictly, it is Article 173 Cebag has prevented it from pre­ extremely doubtful whether an applicant paring an effective defence. Of course, the would be allowed to transform, at the stage applicant cannot amend its claims in such a of the reply, a contractual action founded on way as to circumvent the rules on time- Article 181 of the Treaty into an action for limits. If, for example, the claim under Arti­ annulment under Article 173. The case-law cle 173 were time-barred, it would not be of the Court suggests that the legal basis of

possible to begin by pleading a claim under ladesh operation in January 1991 it was pre­ Article 181 and then transform it into an cluded from making any deduction for late action for annulment under Article 173. I delivery. The Commission has in substance shall examine in the following paragraphs accepted that. But it was not compelled to whether the claim under Article 173 is out of re-examine legal situations that had been time. definitively settled before the date of the Vandemoortele judgment. Cebag could have challenged the decisions taken in October 1990 within the two-month period laid down in Article 173. Once that period had expired, the decisions could no longer be challenged under Article 173. The judgment of 12 December 1990 cannot have changed that state of affairs. According to the estab­ 18. The act challenged by Cebag is the telex lished case-law of the Court, a judgment of message of 27 March 1991 in which the the Court given in proceedings brought by Commission refused to reconsider in the a different party cannot have the effect light of the Vandemoortele judgment the of reopening a limitation period: deductions made in October 1990 in relation Case 43/64 Müller v Council [1965] to the supplies to Mozambique and Uganda. ECR 385; Case 55/64 Lens v Court of Justice The Commission maintains that that [1965] ECR 837; and Case 125/87 Brown v decision is not a reviewable act inasmuch as Court of Justice [1988] ECR 1619. Although it merely confirmed decisions which could those judgments were all given in staff cases, no longer be challenged because the two- the same principle must apply to actions for month period laid down in Article 173 had annulment under Article 173. Any other already expired. Cebag argues that the solution would be contrary to the principle decision of 27 March 1991 was not purely of legal certainty; the institutions might be confirmatory, since it expressed the results of compelled to reconsider decisions adopted a balancing of interests which the Commis­ many years earlier if a judgment of the sion was required to carry out as a result of Court had the effect of reopening limitation the Vandemoortele judgment. periods in favour of persons who had not challenged decisions affecting them in good time. I conclude therefore that Cebag's application is out of time in so far as it is based on Article 173.

that it cannot be admitted under some other requested by the applicant: see Joined Cases provision of the Treaty. In fact, it seems clear C-104/89 and C-37/90 Mulder and Others to me that the present type of claim must in [1992] ECR I-3061, at paragraph 36. principle be capable of being pursued under some provision of the Treaty other than Article 173. Although much argument has been addressed to the question whether Cebag has a contractual remedy under Arti­ cle 181, no one appears to have considered the alternative possibility of a non­ contractual remedy under Article 178 of the Treaty. And yet it would be logical to con­ sider that, if Cebag's claim is not contractual, it must, almost by definition, be non­ 22. As regards procedural conditions, the contractual. only respect in which the two remedies might differ significantly is that different lim­ itation periods might apply. An action for non-contractual liability under Article 178 of the Treaty is subject to the five-year limita­ tion period laid down in Article 43 of the Statute of the Court of Justice of the EEC. A contractual action under Article 181 is pre­ sumably subject to the limitation period laid down in the 'law applicable to the contract in question' (see Article 215, first paragraph, of the Treaty). In the absence of a choice-of- law clause, it would not be easy to determine the applicable law and, as I pointed out in my Opinion in Haniel, it would hardly be 21. Indeed it may be unnecessary, in the cir­ desirable if food aid operations were to be cumstances of this case, to decide whether subject to different national laws, depending the action is contractual or non-contractual. perhaps on the place of establishment of the The substantive conditions of liability do not successful tenderer. The 'law applicable to appear to differ: either way, the Commission the contract' might of course be taken to is liable for an unlawful act consisting in the mean nothing more than the law contained making of deductions from the sums payable in Regulation No 2200/87, supplemented to Cebag when there was no legal basis for where necessary by the general principles of doing so in the applicable legislation. The Community law. Since the regulation does unlawfulness of the act cannot be doubted, not lay down a limitation period, one solu­ in the light of the Vandemoortele judgment; tion would be to apply Article 43 of the Stat­ nor is there any doubt that Cebag suffered ute by analogy and to hold that the action damage as a result. It is equally clear that must be brought within a period of five interest is payable on Cebag's claim under years from the occurrence of the event giving Article 18(6) of Regulation No 2200/87, rise to liability. If that solution is adopted, it which refers to 'the Commission's normal makes no difference whether the present rate', and that it is payable at that rate action is regarded as contractual or non­ whether the basis of the claim is contractual contractual. An alternative solution would be or non-contractual, since that is the rate to hold that, in the absence of any express

rule on time-limits, the contractual action is Plaumann decision by confining it to the only time-barred if the applicant's delay in exceptional case in which the action for dam­ commencing proceedings amounts to waiver ages seeks payment of an amount equal to of the right of action: see Case 25/60 De the amount that the applicant was required Brtiyn v Parliament [1962] ECR 21, at p. 28. to pay under an individual decision, so that On neither view could the present action be the application seeks in effect the withdrawal regarded as out of time. of that individual decision. It is also true that in a number of staff cases the Court has held that, although a person may bring an action for damages without being obliged to seek the annulment of the illegal measure which 23. It remains finally to be considered caused him damage, he may not by that whether a contractual or non-contractual means circumvent the inadmissibility of an remedy may be pursued where the action has action for annulment which concerns the the same object as an action for annulment same illegality and which has the same finan­ which is inadmissible because, for example, it cial end in view: see, for example, Case is time-barred. It was once held by the Court 543/79 Birke v Commission and Council that an administrative measure which has not [1981] ECR 2669, at paragraph 28. However, been annulled cannot of itself constitute a that decision and others like it can be wrongful act on the part of the administra­ explained on the ground that a servant of the tion and so cannot give rise to an action for Community cannot in any event bring an damages: Case 25/62 Plaumann v Commis- action under Article 178 in respect of a claim sion [1963] ECR 95. which originates in the relationship of employment between him and his institu­ tion: see, for example, Case 9/75 Meyer- Burckhardt v Commission [1975] ECR 1171, at p. 1181, paragraph 7. 24. However, that decision was severely crit­ icized (see the authors cited by Advocate General Roemer in his Opinion in Case 5/71 Zuckerfabrik Schöppenstedt v Council [1971] ECR 975, at p. 991) and in more recent judgments the Court has emphasized that the action for damages is of an autono­ mous nature and is subject to its own condi­ tions of admissibility: see, for example, Joined Cases 197/80 to 200/80, 243/80, 245/80 and 247/80 Lndwigsh atener Walz- mühle v Council and Commission [1981] ECR 3211. A fortiori, the contractual action 26. As for the Court's attempt to distinguish provided for in Article 181 must also be of in Krohn between situations in which the an autonomous nature. action for damages is completely autono­ mous and those in which the action for dam­ ages cannot be used because it would obtain the same result as an action for annulment which is inadmissible, I doubt very much 25. It is true that in Case 175/84 Krohn v whether such a distinction can be defended. Commission [1986] ECR 753 (at para­ As Advocate General Mancini put it in his graph 33) the Court appeared to uphold the Opinion in Krohn (at p. 762):

(1) order the Commission to pay the applicant ECU 65, 093.10, plus interest at the Commission's normal rate as from 23 October 1990 in the case of action No 760/89 and as from 31 October 1990 in the case of actions Nos 401 / 89 and 759/89;

(2) order the Commission to pay the costs.

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