T-53/96

represented by Alexandre Varaut, of the Paris Bar,

applicants,

v

Commission of the European Communities, represented by Gérard B erscheid, James Macdonald Flett and Ulrich Wölker, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

* Language of the case: French.

makes the following

Order

Facts and procedure

1 O n 27 March 1996 the Commission adopted Decision 96/239/EC on emergency measures to protect against bovine spongiform encephalopathy (OJ 1996 L 78, p. 47, hereinafter 'the Decision'). In Article 1, the Decision prohibits, 'pending an overall examination of the situation', export from the United Kingdom to the other Member States and non-member countries of:

— live bovine animals, their semen and embryos;

— meat of bovine animals slaughtered in the United Kingdom;

4 By separate document, lodged on 17 July 1996 at the Registry of the Court, the Commission raised an objection of inadmissibility on the basis of Article 114(1) of the Rules of Procedure. The applicants submitted their observations on 6 Septem- ber 1996.

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5 In their application, the applicants claim that the Court should:

— declare the Commission liable, under Article 215 of the Treaty;

— order the Community to pay them the token sum of 1 franc for the non- material damage suffered;

7 In its objection of inadmissibility, the Commission points out that, under Article 19 of the E C Statute of the Court of Justice and Article 44(1 )(c) of the. Rules of Procedure of the Court of First Instance, an application must state the

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subject-matter of the proceedings and a summary of the pleas in law on which the application is based. It contends that, in an action for damages, the application must contain information for enabling the conduct of the institution of which the applicant complains to be identified, the reasons for which the applicant considers that there is a causal link between that conduct and the damage which it claims to have suffered and the nature and extent of that damage.

8 As regards the damage allegedly suffered, the Commission contends that the appli- cation contains no particulars as to the nature (public health aspect and/or market aspect, elements constituting the alleged damage, both that allegedly suffered b y each of the applicants specifically and that allegedly suffered by the members of the two associations) and as to the actual existence of the alleged damage. It sub- mits that the mere assertion, which the applicants do not explain, that the damage they have suffered is the same as 'that of any citizen of a member country of the European Union' does not enable the actual extent of the alleged damage, the time of its occurrence or, a fortiori, its specific manifestations to be determined.

9 As regards the existence of a sufficiently clear breach of a superior rule of law for the protection of individuals, the Commission contends that a mere assertion, without any further explanation, that it has contravened the principle of propor- tionality and assessed facts wrongly is not sufficient. Mere reference to a series of inappropriate steps, and of failures to take steps, in the task of monitoring trade between Member States which is conferred upon it does not enable the existence of any such breach to be determined.

i3 In conclusion, the Commission contends that the total lack of factual and legal ele- ments to support the application impairs its rights of defence since it prevents it from making proper arrangements for its defence. Consequently, it asks the Court to declare the action inadmissible.

M In their application, the applicants submit that, as regards the fault with which the Commission is charged, it must be concluded, taking into account the information on BSE available to the Commission and the actions which the latter has taken since 1986, the date on which the first BSE case was discovered, that' the measures adopted by the Commission up to 27 March 1996, the date of adoption of the Decision, which prohibits exports of bovine animals and derived products from the United Kingdom to the other Member States and non-member countries, were insufficient.

is The applicants -consider that, in taking proper measures at such a late stage, the Commission failed in its duty to control and monitor intra-Community trade, par- ticularly where this may affect the health and life of consumers, as is clear from Articles 129 and 129a of the E C Treaty. The applicants maintain that the Commis- sion failed to observe the principle of proportionality in so far as the measures

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taken before 27 March 1996 were not proportionate to the risk which BSE entailed for human health. They point out that on 27 March 1996, although there was still no certainty about the transmission of BSE to man, the Commission adopted mea- sures imposing absolute bans. They accordingly conclude that, before those mea- sures were adopted, it committed a clear error of assessment as regards the risks of transmission of BSE, since, as they see the matter, the evidence of the existence of a risk of transmission is still the same.

18 In their observations on the objection of inadmissibility, the applicants submit that, as regards the damage, they have requested the Court to appoint an expert since the damage is not determinable in any other way. They maintain that, according to the judgment of the Court of Justice in Case 90/78 Granaria v Coun- cil and Commission [1979] E C R 1081, paragraphs 5 and 6, an action for damages in which the applicant reserves the right t o specify the extent of the damage at a later date cannot be declared inadmissible o n this ground.

. Findings of the Court

19 Under Article 114 of its Rules of Procedure, the Court may, on application by a party, decide the question of admissibility without going to the substance, on the conditions laid down in paragraphs 3 and 4 of that article. In the present case, the Court considers that, since it has sufficient information from an examination of the documents before it, it is not necessary to open the oral procedure.

20 Under Article 19 of the E C Statute of the Court of Justice and Article 44(l)(c) of the Rules of Procedure of the Court of First Instance, any application must state the subject-matter of the proceedings and contain a summary of the pleas in law on which the application is based.

21 It is settled case-law that those particulars must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the applica- tion, where appropriate, without any other information in support. In order to guarantee legal certainty and the sound administration of justice it is necessary, in order for an action to be admissible, that the basic legal and factual particulars on which the action is based be indicated, if only in summary form but coherently and intelligibly, in the application itself (see the judgments of the Court of Justice in Case C-347/88 Commission v Greece [1990] ECR 1-4747, paragraph 28, and in Case C-52/90 Commission v Denmark [1992] ECR 1-2187, paragraph 17 et seq.; see also the order of the Court of First Instance in Case T-85/92 De Hoe v Com- mission [1993] E C R 11-523, paragraph 20, upheld by the order of the Court of

25 Secondly, as regards the material damage allegedly suffered by the members of the two associations, the Court likewise finds that the application makes no reference to the damage allegedly suffered. In particular, the applicants do not indicate the nature or extent of the damage.

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26 This total lack of particulars cannot be made good by the request, made by the two associations, for an expert to be appointed for the purpose of 'determining' the material damage allegedly suffered by their members. If this request is to be interpreted as a request for the commissioning of an expert's report, which is a measure of inquiry provided for by Article 65(d) of the Rules of Procedure, it can- not be upheld since the purpose of measures of inquiry — namely to prove alleged facts — cannot be achieved in the present case since no facts have been adduced to prove the existence of the damage allegedly suffered. Furthermore, if the appli- cants' request is to be interpreted as a request for a measure of organization of procedure to be adopted under Article 64(2)(b) and (c) of the Rules of Procedure, it cannot be upheld either, since the purpose of such measures is to determine the points on which the parties must present further argument or which call for mea- sures of inquiry, to clarify the forms of order sought by the parties, their pleas in law and arguments and the points at issue between them. The task in the present case is not one of identifying points requiring an inquiry or clarifying the forms of order sought but of ascertaining all of these. Similarly, no point at issue between the parties can be clarified as the Commission is not in a position to contest the damage alleged by the applicants because of the lack of any indication of the basic particulars as to its nature and extent and as to its causal link with the Commis- sion's alleged failures to fulfil its duty to control and monitor intra-Community trade.

28 As regards the applicant associations' interest in bringing proceedings in the name of their members, the applicant associations have not identified in the action the parties alleged to have suffered damage nor proven, or even mentioned in the application, an assignment of rights or conferment of authority from which they could derive their interest in bringing proceedings in the name of their members (see the judgment in Case 238/78 Ireks-Arkady v Council and Commission, cited above, paragraph 5, and the judgment in Joined Cases T-481/93 and T-484/94 Exporteurs in Levende Varkens and Others v Commission, cited above, at para- graph 77). This Court considers that in those circumstances the two associations have not demonstrated the existence of an interest in bringing proceedings in the name of their members.

29 From all the foregoing considerations it follows, first, that the application does not satisfy the minimum requirements laid down by the first paragraph of Article 19 of the E C Statute of the Court of Justice and Article 44(l)(c) of the Rules of Pro- cedure of the Court of First Instance in order for an application to be admissible and, secondly, that the applicant associations have not established an interest in bringing proceedings. The objection of inadmissibility must accordingly be upheld and the application dismissed as inadmissible, without its being necessary to exam- ine whether the other elements required in support of an action for damages exist or to consider the merits of the other arguments put forward by the applicants and the Commission.

hereby:

1. Dismisses the application as inadmissible;

2. Orders the applicants jointly and severally to pay the costs.

Luxembourg, 21 November 1996.

H. Jung R. Garcia-Valdecasas

Registrar President