OPINION OF MR ROEMER — CASE 25/62 PLAUMANN v COMMISSION

Mr President,

Members of the Court,

The applicant, a German commercial partnership engaged in importing southern fruits, submitted to the Court on 27 July 1962 for examination a Decision of the Commission of the European Economic Community relating to customs duties.

We know that the Government of the Federal Republic made a written request to the Commission on 16 June 1961 for authorization to suspend in part the general external tariff for fresh Clementines. The application was amended orally with a view to establishing an ex-tariff heading Clementines (rate of duty 10 %).

The Commission however refused the request in writing on 22 May 1962. This Decision gives rise to the present proceedings.

The purpose of the action is twofold:

The Commission asks that the application be dismissed in its entirety as inadmissible and in any event as unfounded.

Moreover as regards the proceedings it must be said that the applicant, with the consent of the Commission, has withdrawn a request for the appearance of the Federal Republic of Germany. Apart from two applications for the adoption of an interim measure (of .8 August and 4 December 1962) both of which were dismissed by Orders of the President of the Court (of 31 August and 21 December 1962) the proceedings have this special feature that the Commission has asked the Court to give a preliminary ruling on the admissibility of the application under Article 91 of its Rules of Procedure. After the observations of the applicant had been lodged asking for dismissal of this application and alternatively for the decision on admissibility to be reserved until the final judgment, the Court decided on 24 October 1962 to reserve its decision on the preliminary objection until the final judgment.

If it falls to me today to give my opinion in this case, then naturally, as is to be expected from the course of the procedure, questions of admissibility are to be found in the forefront as regards both the application for annulment and the claim for compensation. In every system of judicial protection, and consequently too in that of the European Treaties, these questions are of such importance that the Court must examine them of its own motion independently of whether they are argued by the parties. Their clarification will make an essential contribution to determining the scope of the judicial protection open to private individuals under the Treaty.

I — Admissibility

1. Application for Annulment

The application is based on the second paragraph of Article 173 of the EEC Treaty. It is there provided that:

The Commission has examined in detail the various requirements of this provision in writing and orally and has concluded that the applicant has no right of action.

2. Claim for compensation

The claim for compensation is based on the second paragraph of Article 215 of the EEC Treaty, that is on that provision whereby in the case of noncontractual liability, the Community shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.

If the present proceedings lead us for the first time to study this provision, our first task is to bring to light the basic concept of the second paragraph of Article 215 which sets forth the duty laid upon the Court. This is the concept as I understand it:

A series of conditions for bringing actions founded upon administrative liability is set out in the second paragraph of Article 215 itself. If it is left to the Court to develop by its decisions other essential conditions, namely the question of illegality — infringement of a right, breach of a protective law — and the question of blame, then reference to the national law of a Member State, which clearly does not appear self-evident from statements in legal works, can only mean a reference to the national law on administrative liability and not to the general law on compensation, and it cannot be taken in the sense of a close attachment to the details of the dogmatic elaboration of law on the administrative liability in the various States but only in the sense of an orientation on the underlying principles whereby the measure of the responsibility of the administration is assessed in the national sphere. In comparative law it is generally found that even closely related legal orders frequently go their separate ways in their legal mechanisms for solving a problem, yet on the whole the results are the same. The same applies to administrative liability.

I am therefore of the opinion that the Court is relatively free under the second paragraph of Article 215 in the dogmatic assessment of individual problems but that in the results of its investigation into the law concerning the legal liability of the Community it must remain within a framework common to the laws of the Member States.

Viewed in this way the second paragraph of Article 215 loses much of the danger and novelty which at first sight seem to attach to it. It requires, so far as the law on administrative liability is concerned, basically no more than that activity in the creation and comparison of laws which the Court, faced with the many loopholes in Community law, has constantly to use in resolving many legal questions both of procedure and substance. Above all however in the understanding of the rule relating to administrative liability in the Rome Treaties it is clear that the Court is not confronted with wholly uncharted territory. The general provisions regarding administrative liability contained in the ECSC Treaty (Article 40), looked at closely, do not provide a more precise system than the wording of the second paragraph of Article 215. Indeed the concept of wrongful act or omission (faute de service) arises there. But in the cases with which it has had to deal hitherto the Court has, rightly I think, avoided a close reliance on French law and, taking into account the legal systems of other Member States, so formulated the essential features of the law on administrative liability as if there were a guideline for ECSC law similar to the second paragraph of Article 215. So we shall be able to obtain useful indications from the previous decisions of the Court on the ECSC Treaty for dealing with applications concerning the liability of the administration under the Rome Treaties.

As in the case of the application for annulment the Commission has put forward a number of considerations in connection with the claim for compensation which are clearly intended to establish its inadmissibility.

(a). The first objection relates to the formulation of the conclusions, the content of which, I said at the outset, has been amended on several occasions in the course of the proceedings.

(b). A second objection by the Commission relates to the fact that the claim for compensation was presented simultaneously with and parallel to the application for annulment. The Commission expressly states that, in raising this objection, it does not wish to go into the general problem of the relationship between the application for annulment and the claim for compensation which both relate to the same legal measure but to raise the particular point that in the present case both are directed to the same end.

(c). A third objection by the Commission concerns the particulars given of the claim for compensation, that is the full statement of the factual and legal requirements of the claim put forward. This must be done in the application as provided by Article 19 of the Statute and Article 38(1) of the Rules of Procedure of the Court.

II — Substance

In a few words I will however go into the substance of the case and show that the claim for compensation cannot be considered as well founded.

1. First there arises the question what part the attitude of the Federal Republic plays in the assessment of the claim founded upon administrative liability.

2. T here is a second consideration in the same vein. As I have shown, the application for annulment must be dismissed as inadmissible inter alia because no individual interest is affected. The decision of the Commission, even if it is not as such to be treated as falling within the ambit of legislation, must by reason of its legal effects be equated with a legislative measure. This inevitably leads us to the question whether actions founded on administrative liability are permissible in such cases or whether they fail for want of some special damage. My view is that the Court should here apply the principles applicable for example in French administrative law in respect of actes-règles. According to the consistent decisions of the Conseil d'Etat an action based on a wrongful act or omission cannot in principle be founded on legislative measures which give rise to a general and impersonal legal position to be decided on abstract criteria. A breach of this rule can only be contemplated under very stringent conditions, namely when abnormal specific and direct damage is caused, that is to say, when a special loss, affecting only individuals, is established.

3. Finally we must investigate whether under Community law a claim for damages is well founded only if Community institutions have infringed rules laid down for the protection of the applicant.

III — Summary and Conclusion

So we come to the conclusion that this application cannot succeed. It is admissible in so far as it seeks the annulment of the contested Decision; it is likewise inadmissible, or at least unfounded, in so far as it seeks compensation.

I am therefore of opinion that the application should be dismissed. Under the provisions of our Rules of Procedure the costs of the proceedings must be borne by the applicant.

1 Translated from the German.

2 Joined Cases 3 to 18, 25 and 26/58 (Rec. 1960, p. 367); 27 to 29/58 (Rec. 1960, p. 503).

3 Rec. 1958-1959, p. 112.

4 Rec. 1961, p. 34.

5 Rec. 1958-1959, p. 26.

6 Koehler: Kommentar zur Verwaltungsgerichtsordnung, 1960, Notes II and III to § 91.

7 Gabolde: Traité pratique de la procédure administrative contentieuse, 1960, No 310.

8 Duez-Debeyre, Droit Administratif, 1952, pp. 458 et seq.

9 Rec. 1961.