Opinion of Mr Advocate General Mischo delivered on 8 October 1986

1 Translated from the French.

2 Although the applicant clarified his claims in this way only in the reply (paragraph 14, p. 6), I, unlike the defendant, consider that it does not constitute an amendment of the application such as to render it inadmissible.

3 Joined Cases 19 and 65/63 Salya Prakaih v Commission of the EAEC [1965] ECR 533.

4 See in particular the judgments of 14 December 1965 in Cases 11/65 and 21/65 Morina v European Parliament [1965] ECR 1017, at pp. 1024 and 1025, and [1965] ECR 1033, at p. 1039.

5 Joined Cases 4, 19 and 28/78 Salerno, Autbié and Massangioliv Commission [1978] ECR 2403.

6 Judgment of 4 December 1975 in Case 31/75 Costacurta v Commission [1975] ECR 1563.

7 In its defence (paragraph 30 on page 12) the Parliament talks of an action brought on the grounds of illegality within the meaning of Article 90 (2). However, Article 90 governs the complaint procedure which precedes the lodging of a possible application under Article 91.

8 See judgment of 22 October 1975 in Case 99/75 Meyer-Burckhardt v Commission [1975] ECR 1171, in particular paragraphs 10 and 11.

9 Judgments of 4 July 1985 in Cases 174/83, 175/83, 176/83, 233/83, 247/83 and 264/83 [1985] ECR 2133, 2149,2155,2163,2171 and 2179

10 See judgment of 15 December 1966 in Case 59/65 Schreikenberg v Commission [1966] ECR 543; judgment of 10 November 1981 in Joined Cases 532, 534, 657, 600, 618 and 660/79 Ameiz and Others v Commission and Council [1981] ECR 2569; judgments of 12 November 1981 in Case 543/79 Birke v Comminon and Council [1981] ECR 2669, and in Case 799/79 Bruckner v Commission and Council [l98l] ECR 2697.

11 Judgment of 16 July 1981 in Case 33/80 Albini v Council anil Commission [1981] ECR 2141, in particular paragraph 18. Sec also judgment of 12 December 1967 in Case 4/67 Muller v Commission [1967] ECR 365, sec in particular pp. 373 and 374.

12 Sec judgment of 19 November 1981 in Case 106/80 Foamier v Commission [1981] ECR 2759, in particular paragraphs 18 and 19; see also judgment of 11 July 1985 in Joined Cases 255 and 256/83 R. v Commission [1985] ECR 2473, in particular paragraphs 56, 57 and 58, in which the application for damages was made only in the event that the action for annulment was dismissed.

13 Judgment of 13 July 1972 in Case 79/71 Heinemann v Commission [1972] ECR 579, in particular paragraph 7,

14 Judgment of 17 March 1983 in Case 280/81 Hoffmann v Commission [1983] ECR 889, in particular paragraph 11; likewise, see the judgment of 27 January 1983 in Case 263/81 List v Commission [1983] ECR 103, in particular paragraph 29, and the judgment of 5 April 1984 in Case 347/82 Alvarez v European Parliament [1984] ECR 1847, in particular paragraph 17. (In other judgments, however, the Court, having dismissed the application for annulment, expressly held that there was no fault or liability on the part of the institution and also dismissed the application for damages — see judgment of 22 October 1981 in Case 218/80 Krusev Commission [1981] ECR 2417, in particular paragraph 10; judgment of 11 July 1980 in Case 137/79 Kohll v Commission [1980] ECR 2601, in particular paragraph 15; judgment of 28 May 1980 in Joined Cases 33 and 75/79 Kuhner y Commission [1980] ECR 1677, in particular paragraph 27. In its judgment of 9 December 1982 in Case 191/91 Plug v Commission [1982] ECR 4229, in particular paragraph 29, the Court simply held that there was no need to consider the claim for damages on the ground that it was based on the alleged unlawfulness of decisions which the Court had held, in the same judgment, to be lawful.)

15 Those conditions were observed in the present case.

16 Prais Council [1976] ECR 1589.

17 As precedents, see the judgment of 22 October 1981 in Case 218/80 Kruse v Commission [1981] ECR 2417, in particular paragraphs 11 and 12; judgment of 29 October 1981 in Case 125/80 Arning v Commission [1981] ECR 2539, in particular paragraphs 20 and 21; judgment of 27 January 1983 in Case 263/81 List v Commission [19831 ECR 103, in particular paragraphs 30 and 31; and judgment of 21 April 1983 in Case 282/81 Ragusa v Commission [1983] ECR 1245, in particular paragraphs 28 and 29.