Opinion of Advocate General Gulmann delivered on 2 June 1992

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.