Opinion of Mr advocate general Capotorti

Mr President,

Members of the Court,

1. The case in which I am delivering this opinion was brought on 3 April 1978 by the Netherlands undertaking Granaría pursuant to Articles 175 and 178 of the EEC Treaty. It constitutes a further development in a situation which is already covered by a previous judgment of the Court of Justice: I refer to the judgment of 19 October 1977 in Joined Cases 117/76 and 16/77 [1977] ECR 1753.

2. Both the defendant institutions plead the inadmissibility of Granaria's first claim on the ground that it does not fulfil the conditions prescribed by Article 175 of the EEC Treaty. The effect of that provision is that every private person may, having duly called upon the Commission or Council to act and two months having passed from the date of that request, bring proceedings before the Court of Justice complaining that those institutions have failed to address to that person any act other than a recommendation or an opinion. Since the aforesaid judgment of the Court in Joined Cases 117/76 and 16/77 had not declared Regulation No 1125/74 of the Council invalid and so could not have revived the previous rules laid down by Article 11 of Regulation No 120/67, the Commission and the Council, if they had wanted to accede to Granaria's request and pay it the refunds for the period after 1 August 1974, could not legitimately have addressed an individual act to it. Only an amendment of the legislation, that is to say the adoption of a new regulation, could have allowed Granaria's claim to be satisfied; but the failure to adopt a regulation cannot be challenged by an interested natural or legal person under Article 175. In any case the principle of equality of treatment would have constituted another obstacle to the suggestion that a decision could be taken in favour of Granaría, short of a general amendment of the rules: Granaría would, in such a way, have received unjustifiably preferential treatment as compared with the other producers of quellmehl.

3. Relying on Article 178 and on the second paragraph of Article 215 of the EEC Treaty, the applicant has submitted a claim, based on non-contractual liability, which is identical in its economic substance to the claim for failure to act. This second claim seeks payment of a sum equal to the amount of the refunds already requested in the above-mentioned letters of 30 January 1978 plus default interest.

4. However, we must still examine the question raised by the Commission from another angle, namely whether it is legitimate for the applicant to seek from this Court, by means of an action for liability, the refunds to which it claims to be entitled under the Community system. There is no doubt that as a rule such a claim can be asserted only against the national administrative authorities, bringing proceedings if necessary before the national court having jurisdiction to judge the legality of such authorities' decisions. Taking account of this, the case-law of the Court has constantly refused to recognize the admissibility of actions under Article 178 and the second paragraph of Article 215 of the Treaty, wherever the function of the compensation claimed would be to act as a substitute for a benefit provided by Community law which the applicant could legitimately claim from the national authority.

5. As regards the substance of the action, however, the claim for damages must be considered unfounded because of the absence of one essential condition for the Community's liability for the damage resulting from one of its acts: namely that the act in question must have infringed a right of the individual who claims compensation for the damage. Doubtless, in the absence of Regulation No 1125/74 the applicant would have continued to draw refunds on its production of quellmehl. But the abolition of that benefit is not sufficient to oblige the Community to compensate Granaría for the economic damage suffered by it, since the amendment of the system introduced by that regulation did not infringe a right of the undertaking itself.

6. In conclusion, I invite the Court to declare both the claims submitted by Granaria on 3 April 1978 unfounded; consequently the applicant should be ordered to pay all the costs of the case.

1 Translated from the Italian.