C-95/98

DUBOIS V COUNCIL AND COMMISSION

ORDER OF THE COURT 8 July 1999 *

In Case C-95/98 P,

Edouard Dubois et Fils SA, a company incorporated under French law, established in Roubaix (France), represented by Pierre Ricard, avocat at the French Conseil d'État and Cour de Cassation, and Alain Crosson du Cormier, of the Paris Bar, with an address for service in Luxembourg at the Chambers of Marc Feiler, 67 Rue Ermesinde,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (Fifth Chamber) in Case T-113/96 Dubois et Fils v Council and Commission [1998] ECR II-125, seeking to have that judgment set aside and an order that the Council of the European Union and Commission of the European Communities jointly and severally pay to Edouard Dubois et Fils SA pursuant to the second paragraph of Article 215 of the EC Treaty (now the second paragraph of Article 288 EC) the sum of FRF 112 339 702 by way of compensation for damage caused to the appellant in its activities as an authorised customs agent and an order that they bear the costs,

Commission of the European Communities, represented by Hendrik van Lier, Legal Adviser, and Roland Tricot, 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,

defendants at first instance,

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, P.J.G. Kapteyn, J.-R Puissochet, G. Hirsch, P. Jann (Presidents of Chambers), J.C. Moitinho de Almeida, C. Gulmann, J.L. Murray (Rapporteur), D.A.O. Edward, H. Ragnemalm, L. Sevón, M. Wathelet and R. Schintgen, Judges,

Advocate General: F.G. Jacobs, Registrar: R. Grass, I - 4838

DUBOIS V COUNCIL AND COMMISSION

"The Community shall adopt measures with the aim of progressively establishing the internal market over a period expiring on 31 December 1992, in accordance with the provisions of this Article...

I - 4839

ORDER OF 8. 7. 1999 — CASE C-95/98 P

The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty."

2 The completion of the internal market required the creation amongst the Member States of the EEC of "an area without internal frontiers" and thus entailed abolition of frontiers for tax purposes and customs controls within the Community upon expiry of the period fixed by that provision, that is to say by 1 January 1993.

3 It was bound to have a serious effect on the continued exercise of certain economic activities directly connected with the existence of customs and tax controls at internal Community borders.

8 First, the European Social Fund classified customs agents as long-term unemployed, thereby allowing them to benefit from schemes for training and employment support and specific measures, including assistance with career guidance, which it funded (Commission Communication, pages 14 to 16, section IV.1).

9 Second, the Interreg scheme supported the restructuring of the firms affected, the training and reorganisation of their staff, the conversion and refitting of goods-handling sites at frontiers and the creation of replacement jobs (Commission Communication, pages 16 and 17, section IV.2).

10 Third, and in addition to the measures described above, which all fall under the structural funds, measures not financed under the structural funds have been proposed and adopted. For instance, the Council adopted Regulation I - 4841

ORDER OF 8. 7. 1999 — CASE C-95/98 P

(EEC) No 3904/92 of 17 December 1992 to adapt the profession of customs agent to the internal market (OJ 1992 L 394, p. 1, hereinafter "Regulation No 3904/92").

11 The applicant, a public limited company incorporated under French law, whose share capital is FRF 47 850 000, employs 1 400 people and has 40 branches and agencies. Its principal business is in the area of freight forwarding and related sectors and, before the completion of the internal market, it acted as an authorised customs agent in 16 establishments at various points on French territory.

4 The Court of First Instance declared the principal claim inadmissible on the ground that it seeks to impute liability to the Community for damage whose source is to be found in the Single Act, which is an instrument of primary Community law and is thus neither an act of the Community institutions nor an act of the servants of the Community in the performance of their duties and cannot, therefore, give rise to strict non-contractual liability on the part of the Community. It held, moreover, that, under the hierarchy of rules, the provisions of Article 178 and the second paragraph of Article 215 of the EC Treaty (now Articles 235 EC and the second paragraph of Article 288 EC), which govern the non-contractual liability of the Community and are primary law, cannot be brought to bear on instruments belonging to an equivalent level, such as the provisions of the Single Act, where this is not expressly provided for (paragraphs 41, 47 and 48 of the contested judgment).

6 The Court of First Instance also held that any insufficiency of the Community's action to assist the profession of customs agents when the single market was established, even if the institutions had infringed a legal obligation to act, was not such as to entail the liability of the Community for breach of the principle of the protection of vested rights, since the institutions have a broad discretion in deciding what action to take as regards the adoption of acts of a legislative nature which concern economic policy decisions. In that regard, the Court of First Instance observed that Council Regulation (EEC) No 3632/85 of 12 December 1985 defining the conditions under which a person may be permitted to make a customs declaration (OJ 1985 L 350, p. 1), which neither defines nor clarifies, in Community law, the pursuit of the profession of customs agent, but merely brings into line the conditions under which a person may be permitted to make a customs declaration, did not therefore create for customs agents a clear advantage which could be defined as a vested right (paragraphs 58 to 65 of the contested judgment).

7 The Court of First Instance held further, that even if Regulation No 3632/85 did in practice grant a specific advantage to the professional category of customs agents, the members of that profession were still not justified in claiming a vested right in the maintenance of that advantage, since the Community institutions are entitled to adapt rules and regulations to the necessary developments which they must undergo and, therefore, traders cannot claim a vested right in the maintenance of an advantage which they obtained from the Community rules in issue and which they enjoyed at a given time (paragraphs 66 and 67 of the contested judgment).

1 1 It argues that it was for the Community institutions to take appropriate compensatory support measures to facilitate the adaptation of the profession of customs agent. The omission or partial failure to act by the Community institutions entails their liability in so far as general principles of law, including the protection of legitimate expectations, the protection of vested rights and the freedom to exercise a profession, impose an obligation to act (judgment in Case 74/74 CNTA v Commission [1975] ECR 533).

1 2 It contends that that obligation to act derives also from the fact that there was a breach of the principle of equal distribution of public burdens, since Edouard Dubois et Fils SA was the victim of unusual, specific and direct damage (see Joined Cases C-104/89 and C-37/90 Mulder and Others v Council and Commission [1992] ECR I-3061, paragraphs 12 to 16). I - 4845

ORDER OF 8. 7. 1999 — CASE C-95/98 P

13 By its second plea, which is in three parts, the appellant submits that the Court of First Instance failed to have due regard to the Community's liability for fault.

1 4 It submits, first, that the Court of First Instance erred in holding that the Community institutions did not breach any higher-ranking rule of law. In the present case, contrary to what was held by the Court of First Instance, there was a breach of vested rights since Regulation No 3632/85 defines the conditions under which a person may make a customs declaration and recognises the existence of the profession of customs agent and its exercise.

15 Second, the applicant disputes paragraph 67 of the contested judgment, according to which the institutions are 'entitled to adapt rules and regulations to the necessary developments which they must undergo'. In its submission, such adaptation cannot disregard the principle of proportionality which requires that any burden imposed on the addressee of the legislation must be limited to the measures strictly necessary for meeting the objective pursued and must require as few sacrifices as possible on the part of the traders it affects (Case 265/87 Schräder [1989] ECR 2237).

19 In that regard, it must be observed that it was the abolition of customs and tax frontiers which put an end to the intra-Community activities of customs agents. All the arguments put forward by the appellant regarding the strict liability of the Community amount therefore to impugning the completion of the internal market and the consequent abolition of customs and tax frontiers, which, since it has substantial adverse effects on the continued exercise of certain economic activities carried out by the appellant, is claimed to be the cause of the alleged damage.

20 It follows that Article 13 of the Single Act, which inserted into the EEC Treaty an Article 8a, which became Article 7a of the EC Treaty (now, after amendment, Article 14 EC), and which provides: '[t]he internal market shall comprise an area without internal frontiers', is the direct and determining cause of the damage which the appellant claims to have suffered. I - 4847

ORDER OF 8. 7. 1999 — CASE C-95/98 P

21 As the Court of First Instance rightly held at paragraph 47 of the contested judgment, the Single Act is an instrument of primary Community law which is thus neither an act of the Community institutions nor an act of the servants of the Community in the performance of their duties within the meaning of the second paragraph of Article 215 of the Treaty and cannot, therefore, give rise to strict non-contractual liability on the part of the Community.

22 It follows that the appellant's plea relating to the strict liability of the Community must be rejected as clearly unfounded.

25 Under the first paragraph of Article 48(2) of the Rules of Procedure of the Court of First Instance, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or fact which come to light in the course of the procedure.

26 To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to allow it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance. In an appeal the jurisdiction of the Court of Justice is thus confined to review of the findings of law on the pleas argued at first instance (Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 59).

27 Finally, in the third part of the second plea, based on the breach of the principle of protection of legitimate expectations, the appellant purports to establish that the Community institutions caused it to entertain reasonable expectations that they would adopt compensatory measures on its behalf. By that argument the appellant disputes the findings of fact made by the Court of First Instance.

28 In that regard, it must be observed that the Court of First Instance has exclusive jurisdiction to find the facts, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts. The appraisal by the Court of First Instance of the evidence put before it does not constitute (save where the clear sense of that evidence has been distorted) a point of law which is subject, as such, to review by the Court of Justice (Case C-53/92 P Hilti v Commission [1994] ECR I-667, paragraph 42). I - 4849

On those grounds,

THE COURT

hereby orders:

1. The appeal is dismissed. I - 4850

DUBOIS V COUNCIL AND COMMISSION

2. Edouard Dubois et Fils SA shall pay the costs.