Opinion of Advocate General Gulmann delivered on 18 November 1992

1 Original language: Danish.

2 [1988] ECR 5459.

3 See Council Regulation (EEC) No 3889/89 of 11 December 1989 opening and providing for the administration of a Community tariff quota for meat of bovine animals, frozen, falling within CN code 0202 and products falling within CN code 02062991 (1990) (OJ 1989 L 578, p. 16) and Commission Regulation (EEC) No 1024/89 of 21 December 1989 laving down detailed rules for the application of the import arrangements provided for in Council Regulation (EEC) No 3889/89 for frozen meat of bovine animals covered by CN code 0202 and products covered by CN code 02062991 (OJ 1989 L 382. p. 53). The two regulations governing the 1991 quota, winch bore the same titles as the 1990 regulations, were Council Regulation (EEC) No 3838/90 (OJ 1990 L 367, p. 3) and Commission Regulation (EEC) No 3885/90 (OJ 1990 I 367, p. 136).

4 The 1990 allocation regulation was Commission Regulation (EEC) No 337/90 of 8 February 1990 determining the extent to which applications in the beef and veal sector for the issue of import licences lodged pursuant to Regulation (EEC) No 4024/89 may be accepted (OJ 1990 L 37, p. 11). The 1991 allocation regulation was Commission Regulation (EEC) No 519/91 of 1 March 1991 determining the extent to which applications in the beef and veal sector for the issue of import licences lodged pursuant to Regulation (EEC) No 3885/90 may be accepted (OJ 1991 L 56, p. 12).

5 See Regulation (EEC) No 2983/90 concerning the allocation of the quantities of the import quota for meat of bovine animals, frozen, opened by Regulation (EEC) No 3889/89 for which import licence applications have not been lodged (OJ 1990 L 283, p. 36).

6 See Regulation (EEC) No 3135/90 amending Regulation (EEC) No 2983/90 concerning the allocation of the quantities of the import quota for frozen meat of bovine animals, opened by Regulation (EEC) No 3889/89, for which import licence applications have not been lodged (OJ 1990 L 299, p. 41).

7 See Regulation (EEC) No 3565/90 amending Regulation (EEC) No 2983/90 concerning the allocation of the quantities of the import quota for frozen meat of bovine animals, opened by Regulation (EEC) No 3889/89, for which import licence applications have not been lodged (OJ 1990 L 347, p. 16).

8 See the references to the regulation.

9 Sec Regulation (EEC) No 519/91 determining the extent to which applications in the beef and veal sector for the issue of import licences lodged pursuant to Regulation (EEC) No 3885/90 may be accepted (OJ 1991 L 56. p. 12).

10 That judgment was published in the Common Market Law Reports for 1992 at page 462 et seq.; a copy was produced by Emerald Meats in these proceedings.

11 Interest of 8% was to be payable on these damages from 20 July 1990. Emerald Meats was also awarded BFR 662926 to cover the costs which it incurred in bringing its application for interim measures before the Court of Justice at the same time as it began proceedings in Case C-317/90 (see point 14 above).

12 See Regulation (EEC) No 3021/91 (OJ 1991 L 287, p. 11).

13 See the reply in Case C-129/91 (point 20 on p. 10).

14 This period was extended to 24 January 1990 by Commission Regulation (EEC) No 143/90 (OJ 1990 L 16, p. 29).

15 The word godkendelse [approval] in the Danish version of the regulation docs not correspond to the terms used in the other language versions. For example, the French version reads sous réserve de cette décision d'acceptation de demande par la Commission..., while the German text is as follows: vorbehaltlich einer Entscheidung der Kommission über die Annahme der Antrage.... Henceforth, I shall replace the Danish word godkendelse with the word beslutning [decision].

16 It should nevertheless be mentioned that the provision in Article 1(3) concerning proof refers in its second sentence only to the reference years 1988 and 1989 as those in which Member States may provide that the proof of import may be furnished by the holder whose name appears in box 4 of import licences.

17 This follows from the case law of the Court, in which it has consistently been held that the review of the legality of the manner in which national authorities apply Community rules is in the first instance a matter for national courts; sec, for example, the judgment in Case 133/79 Sucrimex and Westzucker v Commission [1980] ECR 1299, at paragraph 24 of which the Court stated that: A review of administrative acts of Member States in applying Community law is primarily a matter for national courts without prejudice to their power to refer questions for a preliminary ruling to the Court under Article 177 of the EEC Treaty. In the circumstances the remedy to be envisaged is an action before the national courts, to which the applicants have in fact already applied. See also the Court's judgments in Case 12/79 Wagner v Commission [1979] ECR 3657 and in Case 217/81 Interagra v Commission [1982] ECR 2233. A similar view was also forcefully expressed by the Court in its judgment in Case 109/83 Eurico v Commission [1984] LCR 3581.

18 [1988] ECR 2151.

19 On this point, see the judgment in the Eurico case cited above in footnote 16.

20 Commission Decision 91/590/EEC of 5 November 1991 on the allocation of the remaining quantity of the import quota for meat of bovine animals, fro/en, pursuant to Article 3 of Council Regulation (EEC) No 3838/90 (OJ 1991 L 316, p. 41).

21 As already mentioned, the evidentiary rules are to be found in Article 1(3) of the implementing regulations. That provision enables Member States to provide that the proof of import may be furnished by the holder whose name appears in box 4 of import licences. The meaning of that rule is not altogether easy to ascertain. It may indeed conceivably be construed as meaning that the person mentioned in box 4 as the holder of the licence is to be treated as the importer. It can consequently also not be ruled out that the Irish Department of Agriculture may have used that rule as the basis for its finding that the meat processing companies were to be regarded as importers in the reference years 1987 and 1988 since, as mentioned above in point 7, they were in fact referred to in box 4 of the import licences as the holders thereof inasmuch as Emerald Meats, according to the information in that box, was acting on their behalf. In my view, however, there is no need to examine this matter in any greater detail. On the one hand, that possible interpretation is open to question. On the other, the provision presupposes that the Member States have decided that such an alternative to the evidentiary rule in the first point should apply. There is nothing in these cases to suggest that the Department of Agriculture adopted a decision on the use of that rule and communicated that decision to potential applicants. At any rate, the circular issued by the Department in January 1990 concerning the procedure to be followed by applicants makes no reference to such a decision, and the corresponding circular for 1991 is not clear on this point. Further-more, the High Court, in its judgment of 9 July 1991, did not attach any importance to that provision.

22 Under Article 2 of Council Regulation (EEC) No 3632/85 of 12 December 1985 defining the conditions under which a person may be permitted to make a customs declaration (OJ 1985 L 350, p. 1) any person able to produce... to the competent customs authority... the goods in question as well as all documents production of which is stipulated by the provisions governing the customs regime requested for the goods may make the customs declaration and thus give his own name as importer on the customs document. That person is therefore not nccessanlv the same as the one who in other respects is in substance to be regarded as the importer of the goods in question.

23 See, for example, the judgment in Case C-87/89 Sonilo and Others v Commission [1990] ECR I-1981, at paragraph 6, and the Court's order in Case C-72/90 Asia Motor France v Commission [1990] ECR I-2181, in which the Court held that: In so far as the action for damages is based on liability arising from the Commission's failure to act under Article 30 of the Treaty, since the Commission is under no obligation to initiate proceedings under Article 169 (judgment of 14 February 1989 in Case 247/87 Star Fruit) the only conduct which may be challenged as the source of damage is that of the French State (paragraph 13).

24 Case C-354/87 [1990] ECR I-3847.

25 See judgments in Case 92/78 Simmenthal v Commission [1979] ECR 777, at paragraph 32; in Case 243/78 Snnmenthal v Commission [1980] ECR 593, at paragraphs 9 and 11; and in Case 76/79 Konecke v Commission [1980] ECU 665, at paragraphs 8 and 9.

26 As already mentioned, the Commission argued that the applicant's claim for annulment in Case C-317/90 should be dismissed forthwith on the ground that it was vexations. As this case is one of a series of cases which Emerald Meats has brought for the purpose, inter alia, of obtaining recognition of what it believes to be the Commission's obligations to safeguard its interests, I do not consider that there are sufficient grounds for upholding the Commission's claims in that regard.

27 In this connection, see F. Schockweiler, La responsabilité de l'autorité nationale en cas de violation du droit communautaire, RTD eur. 1992, p. 27, particularly section I.

28 Case 20/88 [1989] ECR 1553.

29 The Court also stated that it was appropriate for it to verify, of its own motion, whether that procedural requirement had been complied with.

30 Case C-55/90 [1992] ECR I-2533. In his first opinion in this case, delivered on 18 June 1991, Advocate General Darmon carried out a comprehensive review of the case-law relevant to this point.

31 Case C-282/90 [1992] ECR I-1937. In his opinion of 16 January 1992 in that case, Advocate General Darmon rejected the Commission's procedural objection and concluded: It cannot therefore be argued against Vreugdenhil that its action is inadmissible on the ground that it did not exhaust domestic legal remedies, even though the pursuit of those remedies was the natural channel by which it could receive compensation for the injury alleged, inasmuch as those legal remedies would not have allowed it to obtain that result (point 35).

32 The Commission argued in Case C-106/90 that the allocation regulation was lawful and that its conduct was accordingly not unlawful on the ground that the regulation merely laid down the quantities of meat that could be allocated to the individual applicants and thus did not determine which applicants could receive a share of the quota. That view must be incorrect. The allocation regulation is based on the lists submitted to the Commission and must therefore be regarded as the legal basis on which applicants included on the list may be issued import licences after the period laid down in the regulation.

33 That was what the Court decided in its judgment in Joined Cases 5/66, 7/66 and 13/66 to 24/66 Kampffmey-er and Others v Commission [1967] ECR 245. The Court held, inter alia-, that: It is necessary to avoid the applicants' being insufficiently or excessively compensated for the same damage by the different assessment of two different courts applying different rules of law. Before determining the damage for which the Community should be held liable, it is necessary for the national court to have the opportunity to give judgment on any liability on the part of the Federal Republic of Germany. This being the case, final judgment cannot be given before the applicants have produced the decision of the national court on this matter...’ (page 266). In my opinion, that judgment demonstrates that there may be cases in which it is appropriate for the Court to stay proceedings in a case pending Defore it. As I understand it, however, that judgment does not imply that this must be done in every case in which actions for damages brought by the same applicant are pending before the Court of Justice and a national court.