Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. The Court is called upon to give judgment in an action which the Netherlands company De Boer Buizen BV brought on 17 March 1986 against the Council and the Commission of the European Communities under the second paragraph of Article 215 of the EEC Treaty. The applicant, a distributor of steel tubes which it exports chiefly to the United States of America, has since 1983 owned a stockyard in Huntsville, Texas, and operates through a United States subsidiary. In the autumn of 1984 it ordered 3000 tonnes of tubes from German and French producers. However, by the time that the goods were delivered, in the following spring, a series of measures had limited the exportation of tubes to the United States. De Boer was therefore obliged to put them into stock.

2. On 24 November 1984 the United States authorities imposed a total ban on the importation of steel tubes produced in the Community. There followed complex negotiations, the outcome of which was that the Community undertook to limit its exports to the United States, initially for the two-year period 1985-86 and then until September 1989, by holding them below a ceiling set at 7.6% of apparent consumption in the United States (7 January 1985).

3. Both Community institutions have expressed doubts as to the admissibility of the action. According to the Council, the damage of which De Boer complains is not attributable to the Community but to the Netherlands Government, for two self-evident reasons: first, it was for that State to share out the amount allocated to it among the national undertakings, and secondly, it was the Netherlands Minister for Economic Affairs who did not grant the company the licence essential to the exportation of the tubes. In order to obtain the desired remedy, De Boer must therefore turn to the Netherlands courts, and in particular to the College van Beroep voor het Bedrijfsleven (Administrative Court of Last Instance in matters of trade and industry) to which the applicant, on 26 November 1985, applied for the annulment of the decision refusing to grant it the licence. According to the case-law of the Court, it is the task of the national courts to review the administrative measures whereby Member States apply Community law (judgment of 10 June 1982 in Case 217/81 Interagra v Commission [1982] ECR 2233); and only those courts have jurisdiction to order compensation for the damage caused by the national authorities (judgment of 26 February 1986 in Case 175/84 Krohn v Commission [1986] ECR 753, at p. 763).

4. I shall now turn to the substance of the case. As mentioned above, De Boer maintains that Regulations Nos 60 and 61/85, adopted by the Council and the Commission respectively to give effect to the Arrangement of 7 January 1985, are illegal and have caused it to incur damage. It claims that, in dividing the burdens arising out of the Arrangement, the legislature acted arbitrarily, in particular: (a) by discriminating against distributors to the benefit of producers, and (b) by allocating the Community quota amongst the Member States without taking account of traditional trade patterns.

5. These submissions must be assessed in the light of the principles which the Court has laid down in interpreting Article 215. It will be recalled that the Court has primarily set out three conditions. In order for the Community to be held liable there must be evidence of (a) unlawful acts by the institutions, (b) unjustified damage, and (c) a causal link between the act and the damage (see most recently, the judgment of 17 December 1981 in Joined Cases 197 to 200, 243, 245 and 247/80 Ludwigshafener Walzmühle and Others v Council and Commission [1981] ECR 3211).

6. In view of the foregoing considerations I propose that the Court should dismiss the application lodged on 17 March 1986 by De Boer Buizen BV and, pursuant to Article 69 (2) of the Rules of Procedure, order the applicant to pay the costs.

1 Translated from the Italian.