Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. The Court is called upon to judge an action under Article 178 and the second paragraph of Article 215 of the EEC Treaty brought by Krohn & Co., of Hamburg, against the Commission of the European Communities. The applicant seeks reparation for the damage caused by the refusal of the Bundesanstalt für landwirtschaftliche Marktordnung [Federal Office for the Organization of Agricultural Markets], on the Commission's instructions, to deliver import licences which it had requested for a consignment of roots or tubers of manioc originating in Thailand.

2. On 16 November 1982 Krohn, an importer and distributor of cereals and feedingstuffs, requested the Bundesanstalt for five import licences covering a total of 548955472 kg of roots or tubers of manioc from Thailand. In accordance with the provisions I have just referred to, Krohn joined to its request several export certificates granted by the Thai authorities on 18 August 1982 (for a consignment of 380 tonnes), and on 7 September 1982 (for the remainder). The export certificates indicated that the goods were bound for Europe aboard the Assimina, the Valdivia and the Daiko Maru. The Bundesanstalt passed on the names of those vessels to the Commission on the day it received the request in accordance with Article 9 of Regulation No 2029/82.

3. The dispute centres on the information concerning the names of the ships used for the transport of the manioc and the place where it was cleared through customs which was requested from the applicant by the Bundesanstalt on instructions from the Commission. According to Krohn, the provisions in force at the material time did not authorize such a request. The Commission maintains that although the information was not required to be provided under the relevant rules it could be demanded where that was clearly in accordance with the spirit and purpose of the EEC-Thailand Cooperation Agreement and Regulation No 2029/82.

4. As I have said, the Commission has questioned the admissibility of the action, albeit without raising a formal objection. Its doubts are expressed in three arguments, two principal arguments and one in the alternative: (a) the contested decision was adopted by a national authority; (b) not having previously exhausted all national legal remedies, Krohn was not entitled to bring an action for damages before the Court; (c) Krohn has not in terms asked for the measures from which it allegedly suffered damage, namely the instructions contained in the Commission's telex messages to the Bundesanstalt, to be declared void.

5. The second main argument is based on the fact that an action for the annulment of the Bundesanstalt^ decision is pending before the competent national court. In bringing that action, the Commission observes, Krohn has acted in accordance with the Court's judgments in Sucrimex and Interagra. In addressing itself to this Court, however, it did not abide by the principles set out in those judgments, which excluded any concurrent jurisdiction between national courts and the Court of Justice and gave precedence to the former in order to avoid the possibility of conflicting decisions on the same issue. The applicant will only be entitled to seek a decision from this Court when it has exhausted all internal legal remedies, and then only upon a reference for a preliminary ruling on the interpretation of the relevant provisions after the national court of last instance has declared invalid the decision adopted by the Bundesanstalt with the Commission's assent. As things stand, therefore, Krohn's action constitutes a misuse of the system of judicial protection provided for by the Treaty.

6. In the alternative, the Commission contends that this case is covered by the principle established in the Plaumann judgment (Case 25/62 Plaumann v Commission [1963] ECR 95) in which it was held that the Court cannot by way of an action under Article 178 and the second paragraph of Article 215 nullify the legal effects of a decision which has not been annulled. In so far as the telex messages form the basis of the contested national decision they may be regarded as decisions which, although not addressed to the applicant, are of direct and individual concern to it. Krohn should therefore have brought an action to have them declared void within the period laid down by Article 173 of the EEC Treaty, which in this case ran from 17 December 1982, the date on which Krohn learnt of the Bundesanstalt's decision and the part played in its adoption by the Commission's instructions. Since it did not do so, Krohn's present application for damages is merely an expendient designed to circumvent the effects of its own negligence.

7. I should say at once that the Commission's main arguments to the effect that the judgments in Sucrimex and Interagra are applicable to this case must be upheld if only for practical reasons. It is worth examining in detail the arguments put forward by the parties on this point. The Commission points out that in both the cases cited its departments exerted a degree of influence upon the national intervention agencies by sending them telex messages which were ultimately followed in the intervention agencies' decisions. Nevertheless, in both the judgments the Court held that the intervention agencies' decisions were the sole source of the damage of which the importers complained. Such telex messages, the Court held, merely reflect the necessary cooperation between the Commission and the national bodies, and that cooperation cannot make the Community liable to individuals (Sucrimex, cited above, at paragraphs 22 and 23 of the decision; Interagra, cited above, at paragraphs 8 and 9).

8. The Commission's alternative argument, however, is in my view without foundation. The decision in Plaumann, it is true, states that an administrative measure which has not been annulled cannot of itself constitute a wrongful act on the part of the administration inflicting damage upon those whom it affects. The latter cannot... claim damages by reason of that measure. The Court cannot by way of an action for compensation take steps which would nullify the legal effects of a decision [which remains in force] (cited above [1963] ECR 108). However, as Krohn rightly points out, that remains an isolated statement. Since its judgment in Schöppenstedt (Case 5/71 Zuckerfabrik Schöppenstedt v Council [1971] ECR 975) the Court has in fact accepted the admissibility of actions for compensation for damage due to a measure which has not been annulled and has therefore regarded them as an independent form of action.

9. In the light of all the foregoing considerations, I propose that the Court declare inadmissible the action brought by Krohn against the Commission of the European Communities by application lodged on 4 July 1984.

1 Translated from the Italian.