Opinion of Advocate General
Mr President,
Members of the Court,
1. A French company, SGEEM, and its director have brought proceedings against the European Investment Bank, asking that the Bank be ordered to compensate the applicants for the loss which they claim to have suffered through its tortious conduct. The case has been brought under Article 178 and the second paragraph of Article 215 of the EEC Treaty. The Bank has argued that the case against it should be dismissed. The Commission has intervened in support of the Bank.
2. The facts of the case can be summarized as follows:
Introductory remarks on the Court's jurisdiction to examine the substance of the case
3. Article 178 of the EEC Treaty provides that:
4. The parties to the proceedings and the Commission agree that that question ought to be answered in the affirmative. Such agreement is naturally persuasive, the more so since the arguments in favour of an affirmative answer are particularly strong. This agreement, however, also gives rise to certain difficulties. It is clear that the question of the Court's jurisdiction is a question which the Court must decide of its own motion and that the Court in its decision must also weigh up any arguments for an answer in the negative. It is for that reason also incumbent upon me to examine whether such arguments exist.
5. In my opinion, it is clear that the question is not as straightforward as would appear from the procedural documents of the parties. The Bank has a special position within the organizational system of the Treaty and there were fundamental reasons for that choice. As I shall discuss below, the Court has stressed the ambivalent position of the Bank within the organizational system of the Treaty, and it is a far from simple matter to determine whether the Bank should be treated, for the purpose of the second paragraph of Article 215, as a Community institution, or whether such an interpretation should be rejected. The first interpretation would have the following consequences:
6. The obvious point at which to begin an examination of the question is Article 29 of the Bank's Statute, which is included in a protocol to the EEC Treaty. Article 29 provides as follows:
7. The Community legal order also differs appreciably on this point from the rules which apply in the case of international organizations. It is the general practice for States, when they establish international organizations, to confer on those organizations extensive immunity from suit which applies whether the organizations act jure imperii or jure gestionis. There is in each case, however, an important exception. Immunity from suit is not conferred on international financial organizations. Proceedings against such organizations may, subject to a number of restrictions, be brought before national courts. The reason normally given for this is that such a legal arrangement is necessary in order to safeguard the confidence of the lender in the context of the raising of a loan by the financial institution. Notwithstanding that reasoning, it is assumed that any type of proceedings may be brought against financial institutions, that is to say, even proceedings which do not arise from contractual relations. That is the legal position which applies, for example, to the International Bank for Reconstruction and Development (the World Bank), established in 1947, and the European Bank for Reconstruction and Development, which was established in 1990.
8. The central question in respect of the Bank is therefore not whether its conduct is exempt from judicial review, but whether such review should be carried out by the Court of Justice or by national courts. It follows from the wording of Article 29 of the Bank's Statute that that question must be resolved on the basis of an interpretation of the EEC Treaty provisions which confer jurisdiction on the Court of Justice.
Is the Bank covered by the second paragraph of Article 215 of the Treaty?
9. The case-law of the Court provides valuable assistance for an understanding of the Bank's position in the jurisdictional and organizational system of the Community.
10. In Case 110/75 Mills v European Investment Bank, the Court examined the question whether Article 179 of the Treaty, under which the Court of Justice shall have jurisdiction in any dispute between the Community and its servants ..., also applied to disputes between the Bank and its servants. The Court ruled in that connection that its jurisdiction to deal with such disputes was not excluded by reason of the provisions in Article 180 of the Treaty, which expressly confers jurisdiction on the Court to deal with certain disputes to which the Bank is a party. The Court ruled on that point as follows:
11. In its judgment in Case 85/86 Commission v Board of Governors of the European Investment Bank, the Court was given an opportunity to analyse the Bank's position within the organizational and operational system of the Treaty. The case concerned the issue of whether the tax paid by servants of the Bank was to be levied for the benefit of the Bank or for the benefit of the Community. It was hardly in doubt that the relevant tax provisions were to be understood as meaning that the tax should be allocated to the Community. The Bank, however, argued that
12. Those two judgments thus make an important, but inconclusive, contribution to the proper interpretation of the second paragraph of Article 215.
13. Of particular importance for this interpretation is the fact that the Court has considered the Bank to be a Community body. That implies, in my opinion, that the Bank's status as an independent legal person can hardly in itself preclude an interpretation of the second paragraph of Article 215 to the effect that the Bank can render the Community liable, subject, obviously, to the requirement that the actual manifestation of that liability, that is to say, the payment of compensation, must be made out of the Bank's own funds and not out of the Community budget.
14. More problematic is the attempt to overcome the difficulty posed by the fact that the Community, according to the words of the second paragraph of Article 215, is liable only in respect of damage caused by its institutions or by its servants. As mentioned above, the Court assumed in the Mills case, correctly in my view, that the Bank is not a Community institution. The enumeration of the Community institutions in Article 4 of the Treaty does not include the Bank, and there is also at present no mention of the Bank in Part 5 of the Treaty, which deals with the institutions of the Community. The fundamental provisions governing the Bank are to be found in Articles 129 and 130 of Title IV in Part 3 of the Treaty on the policy of the Community. This distinction between the Bank and the Community institutions is a natural reflection of the Bank's special position in the organizational system of the Treaty, which is emphasized by its status as an independent legal person. That position has not been significantly modified by the amendments to the Treaty laid down in the Treaty on European Union signed in Maastricht on 7 February 1992. Admittedly, the introductory provisions in the Treaty are supplemented by a new provision in Article 4b, under which a European Investment Bank is to be established, and Articles 129 and 130 of the Treaty are transferred to Part 5 of the Treaty, which deals with the institutions of the Community. However, the Bank is still not designated as a Community institution under Article 4, and the inclusion of the Bank in Part 5 of the Treaty occurs in an independent Chapter 5 which is quite separate from Chapter 1 dealing with the institutions of the Community.
15. Before I examine that question, I wish to refer to an argument put forward by the Bank in support of its contention that it is covered by the second paragraph of Article 215. It has pointed out that the following provision is added by the Treaty on European Union as a new third paragraph to Article 215:
16. In my view, decisive importance for that interpretation attaches, as outlined above, to the question whether there are positive reasons to allow the Bank to come within the Court's jurisdiction under the second paragraph of Article 215 in the light of relevant considerations based on the Bank's duties and its position in the organizational system of the Treaty, and whether any cogent arguments can be adduced against such a result.
17. The Bank has argued forcefully that an affirmative answer to the question would best guarantee its independence and is in any event desirable because it would ensure a uniform assessment of the Bank's conduct in the interest of legal certainty and would accordingly have sufficient regard for the fact that the Bank was acting as a Community body for the purpose of pursuing Community objectives.
18. That, however, is not necessarily conclusive for the resolution of the problem. It cannot be ruled out that the Bank's special status within the organizational system of the Community may have been based on other, more far-reaching considerations than those discussed above; alternately, there may be arguments in favour of conferring jurisdiction on national courts.
19. Finally, one cannot overlook the fact that the interests of the person suffering damage may argue in favour of allowing national courts to have jurisdiction to deal with cases involving non-contractual liability on the part of the Bank. All other things being equal, the person suffering the damage may have a legitimate interest in being able to bring proceedings against the person or body causing the damage before the courts in the place where the damage occurred.
20. In view of the foregoing, it appears to me doubtful that there are sufficiently cogent reasons to give a broad interpretation to the second paragraph of Article 215 in respect of the Bank.
The Bank acted in the present case on behalf of the Community
It was argued in particular by the Commission, but also directly or indirectly by the parties to the case, that the second paragraph of Article 215 is in any event applicable in the present proceedings if account is taken of the special legal context in which the Bank acted.
21. The Bank acted on the basis of rules set out in the first place in the Lomé Convention, secondly, in an Internal Agreement on the Financing and Administration of Community Aid and, thirdly, in the Financial Regulation applicable to the Sixth European Development Fund. The aid, which is granted in the form, inter alia, of loans of risk capital, comes from Community funds. The rules referred to establish a division of functions between the Commission and the Bank with regard to the administration of the aid. The loans covered by the finance contract at issue in the present case involved risk capital, and it follows from the relevant rules that such loans are administered by the Bank on behalf of the Community. It also follows expressly from the finance contract that it was entered into by the Republic of Mali and the EIB acting in the present contract on behalf of the European Economic Community. It is clear from Articles 22 and 23 of the Internal Agreement that the Bank administers loans of risk capital in close cooperation with a committee consisting of representatives of the governments of the Member States.
22. In view of the foregoing, there are good reasons to support the view that the Bank should in the present case be treated in the same way as the Community institutions in respect of the second paragraph of Article 215. The Bank lends Community funds. The Bank administers funds on behalf of the Community, a fact which is also made clear to the outside world. The Bank administers those funds on the basis of Community rules, under which its independent decisionmaking competence is limited vis-à-vis the competence which it has when lending its own funds on the basis of the EEC Treaty. Furthermore, the Commission and the Bank act in this area essentially on the basis of the same set of rules, and it is for that reason particularly logical that the Court of Justice should have jurisdiction to deal with proceedings concerning non-contractual liability brought not only against the Commission, but also against the Bank. That fact is, in my opinion, the determinant factor in favour of the Bank's being treated in the present context as one of the Community institutions for the purpose of the second paragraph of Article 215. The Court of Justice ought for that reason to examine the substance of the present case under the second paragraph of Article 215. Even if the Bank does administer Community funds, and even if it does act on behalf of the Community, it is both necessary and possible in my opinion to interpret the second paragraph of Article 215 in such a way that the Bank, if it is ordered to pay compensation, should pay such compensation out of its own funds.
23. The substance of the case should be dealt with by the Sixth Chamber, in view of the fact that the parties in the case submitted their arguments on that question before that Chamber during the oral procedure on 23 October 1991.
Conclusion
24. I accordingly propose that the Court should rule that it has jurisdiction under Article 178 of the EEC Treaty, in conjunction with the second paragraph of Article 215 thereof, to decide the substantive issues in the present case.
1 Original language: Danish.
2 The majority of commentators who have at all addressed the problem take the view that the Bank is not covered by the second paragraph of Article 215; see, for example, Wohlfarth in Wohlfarth and Others Die Europäische Wirtschaftsgemeinschaft, 1960, at page 566, and Grabitz in his Commentary on the Treaty, Note 20 in fine on Article 215. In Groebens and Others Kommentar zum EWG-Vertrag, (1983), Gilsdorf argues that the Court of Justice cannot have jurisdiction, but that the competent national courts must apply the general principles common to the laws of the Member States under Article 215 in respect of the Bank's liability to pay compensation: see Note 19 on Article 215. A few commentators take the view that the second paragraph of Article 215 must be interpreted as meaning that the Bank is covered by that provision; see, for example, Hilf Die Organisationsstruktur der Europäischen Gemeinschaften, 1982, page 41, and Henrion in Les Novelles, Droit des Communautés Européennes, 1969, page 971.
3 The Bank is required under Article 29 of its Statute to have an address for service in each Member State, The right of an applicant in cases relating to compensation in respect of non-contractual liability to choose between the domestic courts of the defendant and the courts for the place where the harmful event occurred follows, of course, from the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Brussels Convention); see OJ 1990 C 189, p. 2.
4 See, inter alia, J. Duffar Contribution à l'étude des privilèges et immunités des organisations internationales, 1982, pages 59 to 68, D. W, Bowett The law of international institutions, 1982, pages 345 to 353 and R. Lavalle La Banque mondiale et ses filiales, 1972, pages 118 and 119.
5 Article VII(3) of the Articles of Agreement of the International Bank for Reconstruction and Development (DINTS, volume 2 (1947), p. 134 et seq.) provides as follows:Actions may be brought against the Bank only in a court of competent jurisdiction in the territories of a member in which the Bank has an office, has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities. No actions shall, however, be brought by members or persons acting for or deriving claims from members ... Article 46 of the Agreement establishing the European Bank for Reconstruction and Development (the Agreement is annexed to the Council Decision of 19 November 1990 on the conclusion thereof: see OJ 1990 L 372, p. 1) provides as follows:Actions may be brought against the Bank only in a court of competent jurisdiction in the territory of a country in which the Bank has an office, has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities. No actions shall, however, be brought by members or persons acting for or deriving claims from members .
6 [1976] ECR 955.
7 The language of the case in Mills was French. The expression la Banque en tant qu'organisme communautaire was somewhat unfortunately rendered in the English translation of the judgment as the Bank as a Community institution. However, the judgment in Case 85/86 Commission v Board of Governors of the European Investment Bank, discussed below, alters that translation to the Bank [as] a Community body at paragraph 24, where it refers to the above paragraph in Mills.
8 [1988] ECR 1281.
9 The Bank argued that the second paragraph of Article 215 must be applicable to it, even though it could not be treated as a Community institution. It argues that it must in any event be covered by the term (Community) servants. I do not believe that it is necessary to examine that submission in any greater detail. It is in my view clear that the decisive question is whether the Bank is an institution of the Community within the meaning of the second paragraph of Article 215 or whether it can be treated as one of the institutions.
10 No^ major significance attaches in my opinion to the cases in which the Bank is expressly placed on the same footing as the Community institutions. One example is the above analogy between the Community institutions and the Bank in the Protocol on Privileges and Immunities of the European Communities. Another example is the analogous reference to the Bank and the Community institutions in Article 1 of the Rules of Procedure of the Court of Justice. These and other examples demonstrate that there have been reasons to draw analogies in a range of contexts. However, it h not possible to infer from this that such an analogy is correct in all cases. It may perhaps even be argued that the examples — if they arc at all relevant to the case at issue — confirm, on the one hand, the distinction between the Bank and the Community institutions and, on the other, demonstrate the perceived need to state expressly that the Bank must in particular circumstances be treated in the same way as the Community institutions.
11 [1990] ECR I-2041.
12 The Bank has also pointed out that Article 9 of the Statute of the European Monetary Cooperation Fund, which was established with independent legal personality in 1973 by way of Regulation (EEC) No 907/73 of the Council (OJ 1973 L 89, p. 2), expressly provides that the second paragraph of Article 215 shall apply in the case of the Fund's non-contractual liability. The Bank contends that the Council cannot confer new areas of jurisdiction on the Court of Justice and that the Council therefore must necessarily have interpreted the second paragraph of Article 215 as already covering the Monetary Fund. That argument is not valid, since it is based on a false premiss. The practice of the Council shows that new areas of jurisdiction can be conferred on the Court of Justice without any amendment to the Treaty. The Court ruled in another context that that practice was lawful in its Opinion 1/91 of 14 December 1991 concerning the draft agreement on the creation of the European Economic Area [1991] ECR I-6079 (Paragraph 59).
13 The reason generally given for the different treatment under Article 215 of cases involving contractual and noncontractual liability is as follows: International organizations normally enjoy immunity from judicial proceedings in the Member States. The purpose of that immunity is to guarantee their independence. For its part, the EEC does not enjoy total immunity: so far as its contractual relations arc concerned, proceedings may be brought against it before the courts of the Member States. National rules on contractual liability arc sufficiently similar to dispel the fear of major differences in treatment. There is accordingly no cogent reason to deprive national courts of jurisdiction in this area. On the other hand, proceedings relating to non-contractual liability concern Community policy much more directly, since they involve an assessment of the unlawful or negligent nature of the conduct from which they originate. It was for that reason logical to remove such proceedings from the Jurisdiction of national courts in order to bring them under that of the Court of Justice.: sec J. Mégret and Others Le droit de la Communauté économique européenne, 1983, volume 10, page 266. A similar view is expressed by H. G. Schermers, Judicial Protection in the European Communities, 1983, page 287 et scq.
14 If it is desired to establish the jurisdiction of the Court under the second paragraph of Article 215, that may be done through an amendment to that provision similar to that made with regard to the Central Bank. If the opposite result is desired, that can be done through a clarification of Article 29 of the Bank's Statute.
15 OJ 1986 L 86, p. 3.
16 OJ 1986 L 86, p. 210.
17 OJ 1986 L 325, p. 42.
18 Article 10 of the Internal Agreement on the financing and administration of Community aid provides that loans of risk capital shall be administered by the Bank on behalf of the Community in accordance with its Statute and the rules laid down by the Financial Regulation referred to in Article 28. Article 14(2) of the Agreement provides that: The Bank shall undertake, on behalf of the Community, the financial execution of operations carried out with the Fund's resources in the form of risk capital. In this context, the Bank shall act on behalf and at the risk of the Community. Any resulting rights, and particularly rights as creditor or owner, shall Be vested in the Community.
19 I find inconclusive the fact that there are provisions, such as Article 52(2) of the Financial Regulation cited above, which state expressly that the Bank acts for and on behalf of the Community. No significance should be attached in the present context to the fact that the Bank may be said, in a restricted sense, to be acting with the full authority of the Community. In the first place, I find it questionable whether it is proper to apply the rules of agency existing in private law to the relationship between the Bank and the Community in the area under discussion; secondly it strikes me as doubtful whether such a position of authority, considered in vacuo, can render the second paragraph of Article 215 applicable.