Opinion of Mr Advocate General Tesauro

Mr President,

Members of the Court,

1. The applicants, insurance companies operating in the export credit insurance market, are seeking compensation for the damage sustained by them as a result of the entrv into force of Council Directive 87/343/EEC of 22 June 1987 (Official Journal 1987 L 185, p. 72).

The relevant provisions and the legislative history of Directive 87/343

2. In 1973, with Council Directive 73/239/EEC (Official Journal 1973 L 228, p. 3), the Community took the first steps towards coordination of the provisions relating to insurance other than life assurance. In order to afford greater freedom of establishment and freedom to provide services in this sector, the directive, which is based in particular on Article 57(2) of the Treaty, provided that certain divergences between national supervisory legislation should be eliminated and that the provisions relating to the financial guarantees required of insurance undertakings for the protection of insured and third parties should be harmonized. In particular, Articles 15, 16 and 17 of the directive impose an obligation on the Member States to require undertakings in their territory to establish respectively technical reserves, a solvency margin and a guarantee fund. Those elements taken together constitute the so-called common prudential rules which are intended to ensure that undertakings throughout the Community remain solvent.

3. Further coordination turned out to be much more difficult than anticipated. When, on 13 September 1979, it submitted a proposal for the amendment of the Directive 73/239, the Commission confirmed the exclusion of operations for the account or with the support of the State, and, what is more, removed all reference to further coordination in that regard.

4. Those comments prompted the Commission to reverse its position and to propose to the Council a new draft of the directive which incorporated the European Parliament's suggestions. That proposal was accompanied by a memorandum in which the Commission, in reference to the market in question, stated significantly that it

5. However, the Council again rejected the solution proposed to it. In the directive finally adopted on 22 June 1987, Directive 87/343, Article 2(2)(d) of the earlier Directive 73/239 was amended in order to exclude export credit insurance operations for the account or with the support of the State from the application of the common rules pending subsequent coordination, but without any time-limit being fixed.

Admissibility

6. The defendant institutions raise two objections of inadmissibility. The first objection concerns the action as a whole; the second is directed specifically against one of the claims made by the applicants in their conclusions.

The first objection of inadmissibility

The first objection of inadmissibility is that the action is in fact intended not to obtain compensation for damage suffered but to deprive Directive 87/343 of any effect. It is therefore a disguised action for annulment, which, if held to be admissible, would side step the Community's procedural rules.

The only submission relied on by the Council and the Commission in support of their objection of inadmissibility is that an action to establish non-contractual liability may not be used as an alternative to proceedings under Article 173. However, it is clear that, expressed in those terms, the objection is unfounded for the simple reason that the Community measure at issue in this case is, as I have pointed out, a directive — that is to say a measure which could not conceivably be challenged by the applicants under the second paragraph of Article 173.

However, in my view it is clear that consideration of the question of admissibility cannot be confined just to an analysis of the relationship between actions to establish non-contractual liability under Article 215 and actions for annulment. The problem raised by the defendant institutions proves on closer examination to be much wider in scope; it concerns, in general, the extent to which claims for compensation are autonomous where the damage allegedly sustained stems not from an actual deed or conduct attributable to the Community, but from a legal act — which is supposedly unlawful — adopted by the Community.

It should be pointed out that in the present case the act which was directly harmful to the applicants is not the directive but the national implementing provisions, or national measures, individual in scope, adopted pursuant to the provisions implementing the directive itself.

Consequently, what must be determined is not whether the applicants should have brought an action for annulment under Article 173 instead of an action for damages, but whether they should not rather have challenged before the national courts the national measures adopted under the directive and, in those proceedings, to have raised the question of the validity of the Community act, namely the directive, on which those provisions were based.

In my view that is the issue which is raised by the defendants' objection of inadmissibility and which must be considered. In any event, I would point out that, as was confirmed in the judgment in the most recent Roquette case (Case 20/88 Roquette Frères v Commission [1989] ECR 1553, at paragraph 14), the Court may, of its own motion, verify whether an action to establish non-contractual liability is inadmissible on the ground that it is subsidiary to national remedies, and the question of inadmissibility should therefore be examined irrespective of what is held to be the scope of the objection raised by the defendants.

Action to establish non-contractual liability and national remedies

7. In general, the problem of the relationship between these two classes of action arises essentially when a national authority adopts a measure pursuant to a Community act and that measure has adverse economic consequences for an individual.

8. Of course, the case-law cited may be interpreted differently depending on what is held to be its rationale.

9. Those are the principles to be applied. Turning now to the case at issue, it should be pointed out first of all that the action for damages is based on the submission that the provisions of Directive 87/343 concerning the equalization reserve are unlawful in so far as they infringe the principle of equal treatment.

The second objection of inadmissibility

10. In the conclusions set out in the application the applicants request the Court, inter alia, to order the institutions to adopt appropriate measures to bring to an end the illegalities found to exist. The defendant institutions contend that that request is inadmissible on the ground that the Court does not have the power to make such orders.

Substance

11. With regard to the substance, the defendant institutions first raise an objection of a preliminary nature. They contend that in the present case the Community did not adopt discriminatory rules. Quite simply, when the first directive was adopted it was realized that it was not yet possible to harmonize the national rules relating to export credit insurance for the account of or with the backing of the State. Consequently, a partial harmonization was undertaken, laying down rules for the private sector (in particular regulating the various financial guarantees for the protection of third parties) and leaving to the Member States the power to regulate the activities of the public insurers in this sector.

The scope of the alleged discrimination

12. Having rejected the defendants' preliminary objection, and before considering whether or not the rules at issue are discriminatory, we should first ascertain the scope of the alleged discrimination.

13. That is the actual scope of the rules at issue in relation to which it must be determined whether or not there is unlawful discrimination.

Competition between the private sector and the public sector in the field of export credit insurance

14. In a report annexed to the application, the applicants claim that it is only in long-term export credit insurance that there is no competition between the private sector and the public sector. On the other hand, there is vigorous competition for the insurance of short to medium-term commercial risks relating to intra-Community exports (or to OECD countries). However, there is very little competition for the insurance of political risk, at least for exports to developing countries. Those general conclusions are supported by detailed analyses of the three markets in question (the United Kingdom, France and Belgium) which are not reproduced here so as not to burden my opinion any further.

Justification for the different treatment

15. The defendant institutions essentially put forward two reasons to justify the exclusion of the public sector from the scope of the directive.

16. It is perhaps precisely because of that incongruous situation that during the proceedings the defendants have increasingly dwelled on the second reason for deciding to exclude the public sector from the scope of the directive.

Other grounds of unlawfulness of the directive at issue

17. In view of the conclusion reached with regard to the infringement of the principle of equal treatment, only a few very brief observations need be made regarding the other grounds of unlawfulness alleged by the applicants, particularly since the documents before the Court show plainly that the principal criticism on which this action is based is that the directive is discriminatory, whereas the other criticisms are either barely developed or merge with the arguments put forward with regard to the infringement of the principle of equal treatment.

The liability of the Community

18. As from the judgment in Schöppenstedt (Case 5/71 Zuckerfabrik Schöppenstedt v Council [1971] ECR 975) the Court has held that: Where legislative action involving measures of economic policy is concerned, the Community does not incur non-contractual liability for damage suffered by individuals as a consequence of that action, by virtue of the provisions contained in Article 215, second paragraph, of the Treaty, unless a sufficiently flagrant violation of a superior rule of law for the protection of the individual has occurred (paragraph ll).

Damage

19. As emerges from the report annexed to the application, the applicants expressly seek compensation for the damage arising from the entry into force of Directive 87/343, in other words the damage caused by the fact that the equalization reserve laid down in Article 1 of the directive must be established only by private undertakings and not by public undertakings.

Conclusion

20. For all the abovementioned reasons, I propose that the Court should:

1 Originai language: Italian.

2 Sec Annex II to lhe report of che Legal Affairs Committee (Doc I-457/80).

3 See the resolution on the harmonization of export aid systems adopted by the European Parliament on 15 June 1977 (OJ 1977 C 163. p 42) and the Couste repon (Doc. 129/77)

4 See the resolution on the seventh report of the Commission of the European Communities on competition policy adopted by the European Parliament on 13 October 1978 (OJ 1978 C 261, p. 48) and the Damseaux report (Doc. 334/78)

5 On the subsidiary nature of a claim for damages in relation to national remedies (at least) where the Community measure has given rise to national implementing measures, see J. Rideau and J. L. Charrier, Code des Procedures Européennes, Paris, 1990, pp. 185—186; R. /oliet, Le Droit Institutionnel des Communautés Européennes, Le Contentieux, Liège, 1986, p. 250 et seq; M. Waelbroeck, in Megret, Le Droit de la Communauté Economique Européenne, vol. 10, pan 1, pp. 276-281.

6 Sec R Joliét, op cit., p. 255 cl seq

7 Judgment in Case 90/78 Granaria v Council and Commtiuon, [1979] ECR 1081. After citing the case-law at issue Advocate General Capotorti pointed out significantly thatIn all the judgments cited the Court accepted the admissibility of the actions without objecting that internal remedies must first be exhausted That is explained, in my opinion, by the fact that they were cases in which, even if the applicants had succeeded in convincing the national court of the illegality of the Community measures which had caused them damage, they still could not have obtained from the national administration the benefit to which they claimed to be entitled without the pnor intervention of the Community legislature. On the other hand, if the claim could be satisfied at the national level the Court has rejected, as inadmissible, the action for damages under Article 215.

8 See M. Waelbroeck, op. cit., p. 281.

9 See the judgments in Joined Cases 83 and 94/76, 4, 15 and 40/77 HNLi Council and Commission [19781 ECR 1209; Case 238/78 Ireks-Arkady v Council ana Commission [1979) ECR 2955; Joined Cases 241, 242 and 245-250/78 DGVv Council and Commission [19791 ECR 3017; Joined Cases 261 and 262/78 Interludi Stärke-Chemie v Council and Commission [1979] ECR 3045; Joined Cases 116 and 124/77 Amylum v Council and Commission [1979] ECR 3497; Joined Cases 197 to 200, 243, 245 and 247/80 Ludwigsba/ener Walzmühle v Council and Commission [1981] ECR 3211; Case 59/83 Biovilac v EEC [1984] ECR 4057; Joined Cases 194 to 206/83 Asteris v Commission [1985] ECR 2815; Case 20/88 Roquelia Frères v Commission [1989] ECR 1553 and Case 152/88 Sofiimporti Commission[1990] ECR I-2477.