T-68/96

Commission of the European Communities, represented by Maria Condou Durande and Hubertus van Vliet, of its Legal Service, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, also of its Legal Service, Wagner Centre, Kirchberg,

defendant,

A P P L I C A T I O N for compensation for the material damage which the applicant allegedly suffered by reason of the Commission's negligence when adopting a decision approving an application for financial aid for the establishment of a joint enterprise in Senegal,

* Language of the case: Greek.

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1 Tonnage expresses the internal volume of a commercial vessel. It serves as the basis for calculating various charges, including pilot and towing charges. Various rules (tonnage rules) exist which govern the manner in which tonnage is calculated. These rules differ as regards both principles and application.

2 A number of States have concluded international conventions for the purpose of establishing uniform principles and rules for calculating tonnage. Two are at present in force: the Convention for a Uniform System of Tonnage Measurement of Ships, signed in Oslo on 10 June 1947 ('the Oslo Convention') and the Interna- tional Convention on Tonnage Measurement of Ships, signed in London on 23 June 1969 ('the London Convention'). Those two conventions feature two methods for measuring tonnage, known respectively as the 'Oslo method' and the

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'London method', which lead to different results in regard to tonnage calculation. Thus, the tonnage resulting from application of the London method is higher, since it takes account of spaces excluded by the Oslo method.

3 Structural policy in the fisheries sector, based on Council Regulation (EEC) N o 4028/86 of 18 December 1986 on Community measures to improve and adapt structures in the fisheries and aquaculture sector (OJ 1986 L 376, p. 7), as amended, in particular, by Council Regulation (EEC) N o 3944/90 of 20 December 1990 (OJ 1990 L 380, p. 1) ('Regulation N o 4028/86'), seeks in particular to achieve a balanced exploitation of fishery resources in Community waters and to extend the Community's sources of supply.

7 O n 7 October 1988 a new measurement was taken, this time on the basis of the London Convention. The certificate of international tonnage (1969), dated 7 Octo- ber 1988, indicated: 'Gross tonnage 479'. The nationality certificate of 8 December 1988 indicated: 'Gross (g. r. t.) 479'.

8 O n 9 January 1992 the applicant lodged with the Greek Ministry of Agriculture an application for financial aid for a project to create a joint enterprise in Senegal ('the application of 9 January 1992') pursuant to Regulation N o 4028/86. In that appli- cation, he stated that the tonnage of the Maistrali II was 479 grt (gross registered tonnes). The Ministry sent his application for a grant, together with supporting documents, to the Commission on 25 February 1992, recommending that financial aid should be granted on the basis of the tonnage of 297.60 grt.

9 By decision of 5 July 1993 (Decision C(93) 1823 final/20) ('the decision of 5 July 1993'), the Commission granted financial aid for the applicant's joint enterprise project in a maximum amount of E C U 1 267 800. It was stated in the annex to that decision that the tonnage of the Maistrali II was 297.60 grt.

10 By letters of 21 July 1993, addressed to the Greek Ministry of Agriculture, and of 8 August 1993, addressed to Directorate D 'Structures and areas dependent on fisheries' of the Fisheries Directorate-General (DG XIV) ('Directorate XIV. D') of the Commission, the applicant stated that the decision of 5 July 1993 was based on an incorrect tonnage figure of 297.60 grt and not on the true tonnage, which he claimed to be 479 grt. By letter of 23 August 1993, the director of Directorate XIV.

13 The Director-General of D G XIV replied to the letters of 1 October 1993 from the Greek Ministry of Agriculture and of 22 November 1993 from the applicant's rep- resentative by two letters dated 1 February 1994. H e stated therein that the capac- ity of the Maistrali II, as measured in accordance with the provisions of the Lon- don Convention, could not be accepted for calculating the Community financial aid for the creation of the joint enterprise concerning that vessel, since Annex VII to Regulation N o 4028/86 established the amounts of that aid on the basis of vessel measurement in grt. The Commission noted that, in accordance with Article 7 of

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Regulation N o 2930/86, that regulation was applicable only as and from 18 July 1994. Furthermore, the Maistrali II had been built with a capacity of 297.60 grt according to the Greek rules on tonnage measurement and had received construc- tion aid on the basis of that capacity under Regulation N o 2908/83. Its subsequent remeasurement in accordance with the London Convention in G T ('Gross ton- nage') could not therefore be accepted for the calculation of the financial aid for the creation of a joint enterprise.

1 4 The Greek Ministry of Agriculture wrote to Directorate XIV. D on 11 May 1994, requesting it to change its position and to grant additional financial aid to the applicant by basing itself on the tonnage resulting from the London Convention. This was followed by a letter of 16 June 1994 stating that the difference between the tonnage on which the Commission had based its decision of 5 July 1993 and that resulting from application of the London Convention was 181.40 tonnes, which corresponded to financial aid on the Community's part amounting to some E C U 425 700 and to approximately E C U 85 140 on the part of the Hellenic Republic.

17 The Director of Directorate XIV. D replied by letter of 19 September 1994. H e pointed out that the Maistrali II had been built with a gross registered tonnage of 297.60 tonnes calculated in accordance with the Greek rules on measurement and that the vessel had received construction aid on the basis of that capacity pursuant to Regulation N o 2908/83. In the joint enterprise project submitted by the Greek authorities to the Commission on 25 February 1992, the Maistrali II was stated to be of 297.60 gross tonnage for the purpose of receiving E C U 1 267 800 of C o m - munity aid. After it had acknowledged receipt of that project on 2 March 1992, the Commission, by decision of 5 July 1993, granted aid of E C U 1 267 800, in accord- ance with the request submitted by the national authorities. From this the Director concluded that there were no grounds for reviewing that decision.

18 By application lodged at the Registry of the Court of First Instance on 13 May 1996, the applicant brought the present action.

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Forms of order sought by the parties

19 Mr Polyvios, the applicant, claims that the Court should:

— order the applicant to pay the costs.

Admissibility

21 While not formally raising an objection of inadmissibility within the meaning of Article 114 of the Rules of Procedure, the Commission does challenge the admis- sibility of the action, arguing in substance that it is in fact seeking the withdrawal of an individual decision which has become definitive and that it is consequently designed to circumvent the procedure set out in Article 173 of the E C Treaty.

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22 Under Article 111 of the Rules of Procedure, where an action is manifestly inad- missible, the Court of First Instance may, by reasoned order, without taking fur- ther steps in the proceedings, give a decision on the action. In this case, the Court considers that it has sufficient information from the documents on the case-file and decides that it is unnecessary to take further steps in the proceedings.

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26 If there was a mistake on the Commission's part, this would have been made in the individual decision. The applicant ought for that reason to have sought annulment of that decision giving rise to the alleged damage. The period within which an action for annulment should have been brought has long expired. That period, laid down in Article 173 of the Treaty, is a matter of public policy.

27 Since the present action is a direct substitute for the action which was not brought within the period specified in Article 173 of the Treaty, and since the applicant himself indicates that the two actions share the same legal and substantive basis and that their legal consequences are identical, the Commission infers that the action for compensation amounts to a breach of the rules governing the period within which an action for annulment must be brought.

28 The applicant submits that, since the action for compensation referred to in Article 215 of the Treaty is in principle independent of actions for a declaration of failure to act and actions for annulment, the case-law has adopted a more severe attitude solely when the use of this remedy is directly substituted for the operation of annulment proceedings which have deliberately not been utilised or have been unsuccessful (Joined Cases 15/73 to 33/73, 52/73, 53/73, 57/73 to 109/73, 116/73, 117/73, 123/73, 132/73 and 135/73 to 137/73 Schots-Kortner and Others v Council, Commission and Parliament [1974] E C R 177).

29 In this case, the Court ought to examine the probable reason why an action for annulment was not brought within the prescribed period. The Court would be able or entitled, by setting out in detail the grounds for 'this means of circumvent- ing the procedure', to declare the action for compensation to be inadmissible only if the case-file, the pleas relied on by both parties, the facts and the procedural documents indicated that the applicant fraudulently omitted to bring proceedings for annulment in order thus to avoid the consequences of an unjustified failure to bring annulment proceedings.

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33 However, although a party may take action by means of a claim for compensation without being obliged by any provision of law to seek the annulment of the illegal measure which causes him damage, he may not by those means circumvent the inadmissibility of an application which concerns the same instance of illegality and which has the same financial end in view (order in Joined Cases C-199/94 P and C-200/94 P Pevasa and Inpesca v Commission [1995] E C R I-3709, paragraph 27). The inadmissibility of a claim for annulment renders a claim for compensation inadmissible where the action seeking compensation is actually aimed at securing withdrawal of an individual decision which has become definitive (Cobrecaf and Others, cited above, paragraph 59, and Richco, cited above, paragraph 65), or, in other words, of a measure or decision capable of being the subject of an action for annulment brought by a natural or legal person and against which an action has not been brought within the specified period.

34 It should first be noted here that it is clear from the case-file that the illegal con- duct of which the applicant claims that the Commission was guilty consists essen- tially of the following:

— the fact of having adopted the recommendation of the Greek authorities, with- out checking the calculations on which it was based and without examining the applicant's request of 9 January 1992 or the documents annexed thereto;

— the fact of not having calculated the financial aid on the basis of the tonnage of the Maistrali II resulting from application of the London Convention, contrary to the Community rules and to the principles of proper administration and equal treatment;

36 The decision of 5 July 1993 was notified to the applicant in accordance with Article 191(3) of the Treaty. The applicant confirms that he received it on 17 July 1993. It is an individual decision, addressed to the Hellenic Republic and to the applicant, capable of forming the subject of an action for annulment brought by the latter. Since the applicant did not bring such an action, the decision has become definitive so far as he is concerned.

39 In contrast, the refusal contained in the letter of 1 February 1994 must be regarded as a new decision. It is clear from the case-file that the Commission adopted its decision of 5 July 1993 on the strength of the information sent by the Greek authorities, without checking whether the tonnage indicated for the Maistrali II had been calculated according to the London method, the Oslo method, or some other method. The Commission addressed that matter only after the applicant had pointed out to it that, contrary to the provisions in force, the amount of the finan- cial aid granted had not been calculated according to a tonnage established pursu- ant to the London method. The applicant drew the Commission's attention to that point both via the Greek authorities and directly, in particular by his letter of 22 November 1993. In its letter of 1 February 1994, the Commission stated that the capacity of the Maistrali II measured according to the provisions of the Lon- don Convention could not be accepted for the purpose of calculating the financial aid. Had the Commission accepted the applicant's argument, it would have granted the financial aid requested. It follows that the letter of 1 February 1994 was based on a new factor capable of having mandatory legal effects such as to affect the applicant's interests. This conclusion is corroborated by the letter of 14 January 1994 indicating that, at that time, the Commission was in the process of examining the matter.

4 0 The refusals contained in the letters of 4 July 1994 and 19 September 1994 merely confirm the decisions taken earlier on 5 July 1993 and 1 February 1994.

45 It follows from all of the foregoing that the present action for compensation, brought more than two years and three months after the last decision capable of being the subject of an action for annulment was adopted, seeks to circumvent the time-limit laid down in Article 173 of the Treaty for bringing such an action and therefore constitutes a misuse of the procedure under Article 178 of the Treaty (order in Pevasa and Inpesca v Commission, cited above, paragraph 28).

46 In those circumstances, the action must be dismissed as being manifestly inadmis- sible.

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Costs

47 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicant has been unsuccessful, he must be ordered to pay the costs.

H . Jung P. Lindh

Registrar President

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