Opinion of Advocate General
Mr President,
Members of the Court,
1. Emerald Meats Ltd, an Irish company dealing in meat, is claiming in these three cases that the Commission's administration of two Community tariff quotas for frozen meat of bovine animals, which were opened by the Council in 1990 and 1991, was unlawful and involved it in liability towards the company.
2. In these cases against the Commission, Emerald Meats is claiming that the Commission regulations under which the Community tariff quotas were allocated should be annulled and that the Commission should be ordered to pay it damages. It argues in particular that the Commission regulations on allocation of the quota are unlawful inasmuch as they were adopted on the basis of decisions taken by the Irish Department of Agriculture which the Commission knew, or ought to have known, to be wrong, and also inasmuch as the Commission unlawfully failed to take account of the interests of Emerald Meats.
Legal background and facts of the cases
3. On the basis of decisions adopted within the GATT, the Council has over many years opened Community tariff quotas under which specified quantities of meat may be imported into the Community without payment of the very high import duties which are otherwise applicable. Obtaining a share of the tariff quotas is thus a matter of considerable economic interest.
4. The principles governing the administration of the tariff quota were changed slightly for 1989. The reason for those changes was the Court's judgment in Case 51/87 Commission v Council, in which it was held that the apportionment of quotas into national shares will normally be in breach of the EEC Treaty rules on the Common Customs Tariff and on the common commercial policy in so far as such a scheme may lead to distortions and deflections of trade. The greater portion of the 1989 tariff quota was administered in the same way as before, while a smaller portion was administered by the Commission on the basis of rules corresponding to those which were to be applied in 1990 and subsequent years to the entire tariff quota.
5. The 1990 and 1991 quotas, each of which amounted to 53000 tonnes, were administered on the basis of regulations adopted by the Council and Commission. Each year the Council adopted a regulation opening the quota and laying down the main administrative rules (the Council's quota-opening regulation). Pursuant to the powers conferred on it by the quota-opening regulation, the Commission adopted each year a regulation laying down more detailed administrative rules (the Commission's implementing regulation).
6. The greater portion of the 1990 quota was allocated, on application, to traditional importers, that is to say, importers who could prove that over the three preceding years (the reference years) they had imported meat coming under the tariff quotas for those years. This portion will hereinafter be referred to as the main quota. The other much smaller portion of the quota was allocated, on application, to importers who could show that they had, during the two preceding reference years, imported or exported a minimum of 50 tonnes of meat of bovine animals which was not covered by the tariff quotas for those years. This portion will hereinafter be referred to as the newcomers' quota.
7. Problems arose in Ireland concerning the processing of applications for the 1990 quota. The problems stemmed from the fact that the Irish Department of Agriculture received double applications, that is to say, applications from different undertakings relying on imports of the same quantities of meat in the reference years. The applications in question were received, on the one hand, from Emerald Meats and, on the other, from 12 meat processing companies. The double applications related to the main quota, which was intended for allocation to traditional importers.
8. Emerald Meats was informed of the Department of Agriculture's decision before the list was sent to the Commission. It thereupon took two steps. At the end of January 1990, it brought proceedings against the Department of Agriculture before the High Court in Dublin and at the same time raised the matter with the Commission. Emerald Meats argued before the Commission that the Department of Agriculture's conduct was in breach of the relevant Community rules and pointed out that, so far as the portion of the 1989 quota administered by the Community was concerned, the Department had accepted Emerald Meats as the importer in the reference years 1987 and 1988. Emerald Meats requested the Commission to intervene in the case and, following this request, it forwarded to the Commission a copy of the documents which provided evidence of its imports in 1987 and 1988. On 6 February 1990, the Commission sent a fax to the Department of Agriculture drawing attention to the Irish authorities' acceptance in 1989 of Emerald Meats as an importer for the reference years 1987 and 1988 and at the same time referring to the rules in the implementing regulation relating to persons entitled and the manner in which proof of entitlement was to be provided.
9. On 8 February 1990 the Commission, which had not received a reply to its communication to the Department of Agriculture, adopted the allocation regulation. The Commission adopted that regulation on the basis of the information contained in the list prepared by the Irish Department of Agriculture.
10. In April 1990, Emerald Meats brought an action before the Court of Justice against the Commission in which it sought the annulment of the decision on which the Commission's allocation was based and of the regulation in which that decision was contained in so far as they failed to take account of the company's legitimate request. Emerald Meats also claims that the Commission is under an obligation to compensate it for the loss which it incurred by reason of the adoption of the regulation.
This is the subject-matter of Case C-106/90.
11. Emerald Meats had also applied to the Department of Agriculture for a share of the 1990 newcomers' quota. That application had been approved by the Department and had been included on the list submitted to the Commission. The Commission's allocation regulation therefore also covered the application by Emerald Meats. Emerald Meats applied to the Department of Agriculture for issue of an import licence. This the Department failed to grant. On 16 July 1990, Emerald Meats set the Department a period of eight days in which to issue the licence and stated that if this was not done it would take appropriate legal action. The Department informed Emerald Meats on 23 July 1990 that a number of the documents which the latter had submitted as proof of imports in 1988 and 1989 could not be accepted and that Emerald Meats therefore did not satisfy the conditions for obtaining a share of the quota. On 8 October 1990 Emerald Meats applied to the High Court in Dublin for an interlocutory injunction requiring the Department of Agriculture to issue the import licences.
12. Emerald Meats had already earlier that year informed the Commission of the manner in which the Department of Agriculture had dealt with its application for a share of the newcomers' quota and in its claims in Case C-106/90 it has sought compensation in respect of the loss incurred by reason of the Commission's conduct in that regard.
13. In order to understand the subsequent processing of the applicant's application for import licences, it is necessary to bear in mind that the Council's quota-opening regulation provided that Member States should inform the Commission of quantities in respect of which import licences had not been applied for by the end of August, in order that the Commission could re-allocate the unused portion of the tariff quota. Member States were to forward this information to the Commission before 16 September and the Commission was then required to adopt a regulation on the allocation of the unused portion of the quota. The Irish Department of Agriculture had originally informed the Commission that the tariff quota had been fully used up in Ireland. It was not until 11 October 1990 that the Department informed the Commission that 16.56 tonnes of meat were available for re-allocation. Emerald Meats pointed out to the Commission a few days later that it was entitled to that amount. On 15 October, Emerald Meats had delivered to the Commission by hand a letter stating that it had applied to the High Court for the interlocutory injunction referred to above. The Commission nonetheless proceeded on the same day to adopt a regulation on the re-allocation of 35 tonnes of meat (the re-allocation regulation). That quantity also covered the amount at issue in the dispute between the Department of Agriculture and Emerald Meats.
14. On 22 October 1990, Emerald Meats instituted proceedings against the Commission for the annulment of the re-allocation regulation and for damages. At the same time, it also applied to the Court for interim measures. Following out-of-court proposals made by the Commission during an adjournment of the hearing on that application, Emerald Meats withdrew its application and on 26 October the Commission adopted a new regulation under which the allocation of 15 of the 35 tonnes was suspended until 29 November 1990.
15. On 22 November 1990 the High Court upheld the application by Emerald Meats for an interlocutory injunction and ordered the Department of Agriculture to issue the import licence. The Department subsequently issued to Emerald Meats an import licence for 16.56 tonnes. On 11 December 1990 the Commission adopted a regulation in which the quantity for re-allocation was definitively set at 20 tonnes. Emerald Meats has continued with the main proceedings against the Commission and is therefore still seeking the annulment of the original re-allocation regulation and damages in respect of the loss which it has incurred. This is the subject-matter of Case C-317/90.
16. In December 1990 the Commission commenced Treaty infringement proceedings against Ireland taking the view that the action of the Department of Agriculture, as described above, breached Ireland's obligations under the Treaty. Those Treaty infringement proceedings are still pending, although the matter has not yet been brought before the Court of Justice. In reply to a question put by the Court, the Commission has provided an account of those proceedings (see point 2 in the addendum to the Reports for the Hearing).
17. The 1991 tariff quota was administered under rules which were substantially the same as those governing the administration of the 1990 quota.
18. Emerald Meats, which suspected (and subsequently received confirmation) that the Irish Department of Agriculture intended to maintain its practice from the administration of the 1990 quota, lodged an application with the United Kingdom authorities covering all the imports which, in its opinion, entitled it to a share of the 1991 main quota. It informed the Commission of that application.
19. On 6 February 1991, the Director General of the Commission's Directorate-General for Agriculture sent a telex to the Irish and United Kingdom authorities asking them to identify all the applications concerned by the legal proceedings which Emerald Meats had instituted in Ireland in respect of the allocation of the 1990 quota and to forward to the Commission before 7 February 1991 copies of those applications together with the supporting documents. He also stressed the need to process applications lodged in both the United Kingdom and Ireland in such a way as to avoid taking account of the same reference quantity twice.
20. It was thus clear that simultaneous acceptance of the United Kingdom and Irish lists would result in licences being issued on the basis of imports of the same quantities of meat. In order to resolve that problem, the Commission decided to postpone the adoption of the allocation regulation, which should have been adopted before 18 February 1991, and instead informed the competent authorities in all Member States, by telex of 21 February 1991, that they were authorized as from 25 February 1991 to issue temporary import licences in accordance with a draft version of the 1991 allocation regulation, subject to the lodging of a guarantee to be released immediately after the entry into force of the allocation regulation. The Commission adopted that regulation on 1 March 1991. It provided that in cases where double applications had been made, the issue of import licences would be made subject to the lodging of a guarantee equivalent to the basic import levy applicable for the meat in question at the moment of the delivery of the licence, plus 10%. It also provided that the guarantee
21. Emerald Meats took the view that, by adopting that regulation, the Commission had infringed its rights and on 9 May 1991 it brought proceedings before the Court against the Commission for the annulment of the regulation and for the payment of damages by the Commission. This is the subject-matter of Case C-129/91.
22. On 9 July 1991 the High Court in Dublin delivered judgment in the case brought by Emerald Meats against the Department of Agriculture in January 1990. That judgment held that:
23. The judgment also upheld the interlocutory injunction issued in November 1990 under which the Department of Agriculture was required to issue import licences to Emerald Meats under the newcomers' quota. One of the matters to which the High Court attached importance in that regard was that although the original documentary proof of importation of the requisite 50 tonnes was defective, Emerald Meats should have been given an opportunity to correct that defect since it could be assumed that it would have been in a position to supply the necessary proof.
24. In addition, the High Court ordered the Department of Agriculture to pay damages to Emerald Meats in the amount of IR£ 385922. That compensation corresponded to the loss which Emerald Meats had incurred as a result of the Department of Agriculture's unlawful refusal to issue import licences for 177 of the 277 tonnes to which Emerald Meats was entitled in 1990.
25. The Department of Agriculture appealed to the Supreme Court against the High Court's judgment. It claims in its appeal that the High Court based itself in several respects on a misinterpretation of the position in law and in fact.
26. With reference to the High Court's judgment, the Commission informed the United Kingdom authorities on 17 July 1991 that Emerald Meats was entitled to import licences without being required to lodge a guarantee. At the same time, the Commission called on the Irish Department of Agriculture to
27. On 16 October 1991 the Commission adopted a regulation amending the 1991 implementing regulation. A new Article 1(a) was thereby inserted into the 1991 implementing regulation and provided that:
28. It would appear that the Department of Agriculture has now taken the necessary steps to comply with the High Court judgment and thereby confer on Emerald Meats a legal status corresponding to that implicit in the new Article 1(a). Emerald Meats has confirmed that the number of import licences issued to it in 1991 and 1992 suggests that its applications in respect of the 1990 main quota were processed in accordance with the High Court judgment.
29. The Irish Supreme Court has not yet delivered judgment on the appeal. By an order of 16 July 1992, however, it decided that the compensation which the High Court had awarded to Emerald Meats and which, on account of the appeal by the Department of Agriculture, had not been paid within the prescribed period, should be paid out to Emerald Meats.
The division of jurisdiction between the national authorities and the Commission in matters relating to the administration of Community quotas
30. Emerald Meats claims that the Irish Department of Agriculture made a serious mistake and that the Commission was under a duty to rectify that mistake or take some other appropriate action.
31. The first and central question in the three cases is therefore whether or not the Commission has the power to verify and, where necessary, correct decisions which are taken by national authorities in processing applications for a share of tariff quotas and form the basis of the lists which those authorities send to the Commission.
32. An important question in terms of both principle and practice is whether the Commission has a duty to verify and, where necessary, to correct the decisions on which national lists are based. The starting point for any reply to that question must be the contents of the relevant regulations considered in the light of the purpose behind the introduction of the Community administration of tariff quotas. Account must also be taken of the consequences which that reply may have for the practical administration of tariff quotas and for the legal remedies available to traders in cases where they believe that an administrative mistake has been made. On a more general level, it is important for the purposes of the reply to determine what general powers the Commission has at its disposal to take action regarding a mistake made by national authorities in administering Community rules.
33. It may be appropriate to state at the outset that, after some hesitation, I have come to the conclusion that the division of functions laid down in the relevant regulations means that the Commission does not have the power to rectify decisions which form the basis of the lists submitted to it.
34. Article 2 of Council Regulation No 3889/89 (the 1990 quota-opening regulation) provides that the main quota shall be apportioned for importers who can prove that they have imported [quota meat] during the last three years.... Article 1(1) of Commission Regulation No 4024/89 (the 1990 implementing regulation) reiterates that rule.
35. The regulations therefore presuppose an administrative procedure in which certain functions are performed by the authorities of the Member States and others by the Commission. Applications are submitted to the national authorities along with supporting proof. It is the national authorities which must resolve any matters of doubt relating to the admission of applications, including whether the operators in question are no longer engaged in any activity in the beef sector within the meaning of Article 2 and in particular whether the applicants can be accepted as importers in the reference years. Needless to say, those decisions must be taken on the basis of the relevant Community rules; however, they may also (as the present cases demonstrate) entail decisions on issues of national law and on the factual situation. The cases involve administrative measures taken by national authorities, which in appropriate cases may be contested in accordance with the national rules on challenging national administrative measures.
36. Only on one point do the relevant Community rules provide for independent verification by the Commission. Under Article 5, it is for the Commission to examine whether applications in respect of the same quantities of meat have been lodged in two or more Member States; if that proves to be the case, the Commission is required to declare the applications inadmissible. The Commission alone may, on the basis of the lists submitted, check whether applicants have submitted such double applications, and the consequences of non-compliance with that requirement are expressly laid down and easy to administer.
37. Under Article 6 it is the task of the Commission to decide to what extent applications may be accepted. In my opinion, nothing more can be read into that provision than that the Commission is necessarily the institution which, in the light of the quantity of meat for allocation and the total quantities of meat imported in the reference years, is required to notify Member States of the quantities which national authorities may allocate to applicants when import licences fall to be issued. Only that decision is expressly referred to in the Commission's allocation regulations. There is nothing in that provision that presupposes a duty on the part of the Commission to check the information contained in the lists submitted to it.
38. Finally, under the regulations it is the national authorities which issue import licences to applicants.
39. This examination of the regulations demonstrates that there is a clear division of functions between the national authorities and the Commission and that accordingly it is the national authorities which have the task of resolving matters of doubt arising with regard to the processing of applications.
40. Neither expressly nor implicitly are applicants given the opportunity to complain to the Commission about decisions taken by national authorities. There is no traditional relationship of superordination/subordination between the Commission and national authorities. The Commission does not have any general power to issue instructions to such authorities. No such power can be read into Article 155 of the Treaty, nor can that article be construed as imposing on the Commission a general duty, when administering tariff quotas, to verify the legality of the decisions on which the lists of applicants submitted to it are based. Article 155 imposes a general duty on the Commission to ensure that Community law is implemented in the Member States. If the Commission should find that Community rules have not been properly implemented, it may ensure that such implementation is carried out by initiating Treaty infringement proceedings against the Member State in question under Article 169 of the Treaty.
41. In my opinion, an independent duty of verification by the Commission must in any event be excluded on practical grounds alone. A very high number of applications are made to the national authorities each year (in excess of 2000, according to the information given) and the period elapsing between the Commission's receipt of the lists and its adoption of the allocation regulation is so brief that it is only with great difficulty that the regulations could be read as imposing a requirement for the Commission to carry out independent verification. Furthermore, the Commission is not in a position to cany out such verification since there is no requirement that documentary proof be enclosed with the list.
42. Applicants who consider that decisions by the national authorities infringe their rights must raise the matter within the confines of their national judicial system. It is therefore ultimately the national courts which must decide whether or not the administrative decisions underlying the lists sent to the Commission are lawful.
43. If the relevant Community rules were to be interpreted as entailing that the Commission had an independent power of review, the result would be that an undertaking which considered its rights to have been infringed during the processing of its application by the national authorities could complain to the Commission and, if the Commission dismissed that complaint, could then bring an action before the Court for the annulment of the Commission decision dismissing that complaint. If the undertaking at the same time also brought proceedings before the national courts, that would give rise to parallel proceedings in which the fundamental problem posed would in each case be more or less the same inasmuch as the issue to be resolved would be whether the original decisions taken by the national authorities were correct. Serious problems could arise in this regard in cases where differing decisions on the substantive legal issues were reached by the Court of Justice and by the national courts. In my opinion, the present cases demonstrate the serious drawbacks to which such parallel proceedings might give rise, since it is conceivable that the Court of Justice, in its judgment on these cases, may have to decide, either directly or indirectly, on the question whether Emerald Meats was substantively entitled to a share of the tariff quota. That is an issue on which, as I have pointed out, the High Court has already ruled and which the Supreme Court will be required to decide on appeal.
44. In so far as the Court might be required in the present cases to decide, either directly or indirectly, the issue of the legality of the decisions taken by the Irish Department of Agriculture, one cannot overlook the restricted basis of the Court's judgments, resulting, in the first place, from the fact that the cases were brought against the Commission, whose position of principle is as set out in point 16 above, and, secondly, from the circumstance that the Court is only indirectly acquainted with the legal views of the Irish authorities.
45. I find that there are therefore cogent legal and practical reasons militating against interpreting the implementing regulations as implying that the Commission has the powers to verify and take action regarding the decisions which form the basis of the lists submitted by Member States (subject to the reservation mentioned above regarding applications lodged in two or more Member States in respect of the same quantities of meat).
46. I believe that the Court's judgment in Case 207/86 Apesco v Commission provides support for this view. That case involved a somewhat similar situation to these cases. An association of Spanish fishing companies brought an action against the Commission seeking the annulment of a Commission decision approving a list compiled by the Spanish authorities of vessels entitled to fish in certain waters. The relevant rules were laid down in the Act of Accession of Spain and Portugal to the European Economic Community. One of the articles therein provided that the Spanish authorities were to prepare such a list and that it was to be checked and approved by the Commission. The rules in question contained a number of conditions to which Commission approval of the list was subject. Those conditions were laid down clearly and it was possible for the Commission to check, on the basis of the information available to it, whether they had been satisfied.
47. In these cases, no obligations to carry out checks have been imposed on the Commission and it is also not practically possible for it (partly on account of the strict time limits referred to above) to examine each individual case.
48. The interpretation of the law I am proposing is not at variance with the considerations underlying the administration of tariff quotas at Community level. The result does not imply that there is a risk that trade will be diverted or distorted. Undertakings may apply in the Member State they choose and an adequate basis has been laid down for a uniform administration through the fixing of common criteria for deciding who is entitled to a share of the tariff quota and how proof is to be adduced before national courts in that regard.
49. My interpretation of the law accords with the Commission's basic views on the legal position.
50. It is clear that the Commission may, if it becomes aware of specific problems linked to the treatment of applications by national authorities, raise those issues with the authorities concerned. That follows from the duty imposed on the Commission by Article 155 of the Treaty to ensure that Community law is applied. It is clear from the course of the proceedings that the Commission attempted in the present cases to resolve the problems which arose through a variety of approaches to the Irish authorities of a non-binding nature. Such approaches do not amount to a departure from the Commission's view of the law.
51. The fact that the Commission implemented the measures described in points 19 and 20 above in order to resolve the problems which arose in the allocation of the 1991 quota as a result of double applications lodged in the United Kingdom by Emerald Meats and in Ireland by the meat processing companies is also not at variance with that view. I have already mentioned that the regulations expressly conferred on the Commission the task of preventing import licences being issued to two applicants who based their entitlement to import on the same quantity of meat.
52. Nor did the Commission act contrary to its view of the law when, in adopting the regulations, it sought to prevent situations arising which could have jeopardized the solution of the legal proceedings then pending before the High Court. That was the case with the adoption of the 1990 re-allocation regulation, since it had become clear that the High Court would shortly thereafter be adjudicating on the claim by Emerald Meats for import licences in respect of its share of the newcomers' quota (see point 14 above). It was also the case with the adoption of the 1991 allocation regulation, where the situation was that the High Court wished to determine who would substantively be entitled to a share of the 1990 quota and thereby also who would in fact be entitled to a share of the 1991 quota (see point 20 above).
53. It must similarly be evident that the Commission did not act at variance with its initial position of principle, since it amended the 1991 implementing regulation in the light of the High Court's judgment of 9 July 1991 (see point 27 above).
54. Finally, Emerald Meats cannot reasonably argue that the Commission acted contrary to its view of the law in adopting Decision 91/590/EEC re-allocating the remaining quantities of the 1991 tariff quota to four named undertakings. The purpose of the decision was to rectify mistakes in the original allocation of the tariff quota and it was adopted following a request by the Member States which made those mistakes.
55. There is therefore nothing in the Commission's approach to justify any arguments against the result which I have set out above, to the effect that the Commission, when administering the tariff quota, is not empowered in specific cases to rectify incorrect decisions taken by national authorities in connection with the approval of applications for a share of the tariff quota.
56. It is not necessary to consider whether the position would in any way be different if the decisions of the national authorities contained such gross and manifest defects that they had to be treated as null and void. It is clear to me that the Department of Agriculture's decisions do not contain such defects. The very particular circumstances which existed in connection with the administration of the Irish tariff quota in the reference years do not, in my opinion, make it obvious that the Department of Agriculture's decisions on the applicant's substantive entitlement to a share of the tariff quota were incorrect.
57. On the other hand, it is necessary to consider whether the Commission, as mentioned above, has a duty to take action regarding decisions of national authorities in cases where those decisions are based on a general misinterpretation and misapplication of the evidentiary rules laid down in the implementing regulations.
58. The relevant regulations establish a division of functions between the national authorities and the Commission. The national authorities must be in a position to reach a decision on an applicant's entitlement within a very short time. Such a system can function only if the criterion for entitlement is clear and the requirement of proof to be submitted along with the application is easy to administer. The Community system sets out a clear criterion for entitlement, that is to say, status as an importer of meat in specified reference years and the method of proof — production of customs documents — is also clearly laid down and easy to administer. It is crucial to the proper functioning of the system that the Member States apply it correctly — in other words, that they accept those applicants who can provide the requisite proof. It can be assumed in these cases that Emerald Meats had submitted the requisite customs documents and had therefore satisfied the conditions for recognition as an importer within the meaning of the Community rules.
59. In the light of the central importance of the evidentiary rule to the proper functioning of the administrative system, it could be argued that the Commission is entitled and obliged to take action regarding the national authorities' application of the evidentiary rule if the Commission is shown that in purely factual terms the evidentiary rule was misapplied.
60. It may be assumed that the Irish Department of Agriculture took the view that it was entitled not to apply the evidentiary rule in cases where it found that the underlying legal relationship between the applicants involved showed that the applicant mentioned as importer on the relevant customs documents was not the importer who had actual entitlement.
61. However, such an interpretation is, in my opinion, at variance with both the objective and function of the evidentiary rule. That rule is designed to ensure a clear legal position, on the basis of which the authorities can take a large number of decisions rapidly and without detailed examination of the circumstances of law and fact involved. The use of the customs documents as proof represents an appropriate means of achieving that result.
62. The customs document, of course, does not constitute definitive and incontrovertible proof of substantive entitlement to a share of the tariff quota, since it is possible that the company which is actually the importer on the basis of the underlying substantive legal position is not the one mentioned as importer in the customs document.
63. It may be claimed on this basis that the evidentiary rule is an element of such importance in the Community administration of the tariff quota that the Commission may and must take action when it becomes aware that the authorities of a Member State are not complying with that rule. It can also be argued that it is not sufficient that such action should take the form of initiating Treaty infringement proceedings, but that the Commission, if sufficiently informed of the facts of the case before it adopts the allocation regulation, ought to act then. The Commission's intervention in such a case would, in fact, be relatively straightforward. The Commission could order national authorities to apply the evidentiary rule in the case of double applications and to issue import licences in accordance with the proper application of that rule. The Commission's action would not prejudice the final decision as to which of several applicants was entitled on the basis of the underlying legal position.
64. But I have decided to propose that the Court should hold that, even in this situation, the Commission does not have the possibility of intervening, and this for two reasons. In the first place, it is difficult in this regard also to find some authority for the Commission to order the authorities in the Member States to perform their duties under regulations in a particular way. Secondly, it is important even in this situation to maintain the clear and definite division of functions under the regulations between the national authorities and the Commission, with the consequences that entails for the division of jurisdiction between national courts and the Court of Justice.
65. The Court has consistently held that the Commission is not obliged to implement the procedure under Article 169 of the Treaty, but has a discretionary power precluding the right of individuals to require it to adopt a particular position or to bring an action for annulment against its refusal to initiate Treaty infringement proceedings. In my view, it can be argued with some cogency that this legal position means that there must be clear justification in the relevant rules of secondary Community law for the assumption that they impose a duty on the Commission to intervene in the event of misapplication of Community rules by Member States.
66. It follows from the considerations outlined above that, in the context of these cases, the Commission was not empowered to take binding and direct action against the decisions of the Irish Department of Agriculture in connection with the applications and the import licences.
67. I shall go on to examine the consequences of this legal view for the claims for annulment and compensation brought by Emerald Meats in these cases.
The claims for annulment
68. It is first of all necessary to consider whether it is appropriate to examine the merits of the claims for annulment.
69. The Commission argues that the Court should decline to take a decision on that part of the claims for annulment in Cases C-106/90 and C-129/91 which relates to the decisions adopted by the Commission pursuant to Article 6(1) of the implementing regulation determining the extent to which applications could be accepted. The Commission submits that the decisions in question are contained in the allocation regulations and that it is consequently an abuse of process to seek the separate annulment of those decisions. That is a view I share with the Commission.
70. It is beyond doubt, moreover, that Emerald Meats satisfies the requirements which Article 173 of the Treaty lays down for the acceptance of an application by a private undertaking for the annulment of the regulations in question. Those regulations directly and individually affect the legal position of the individual applicant (on this point, see the Court's judgment in Weddel v Commission).
71. However, it is not sufficient per se to establish that Emerald Meats also has a sufficient legal interest to have its claims for annulment upheld. Of course, the Court proceeds on the basis that the applicant's legal interest must be assessed on the basis of the situation which existed when the application was lodged, but the Court has also ruled that the legal interest may cease by reason of events which occur during the proceedings in the case. Such subsequent events may mean that the application no longer serves any purpose or that there are no longer reasonable grounds for ruling on the claims for annulment. The Commission has submitted that it is at present doubtful whether the applicant has any legal interest in an examination of the claims for annulment. That is particularly clear with regard to Case C-317/90, in which the Commission contends that the Court should dismiss the action forthwith on the ground that the further pursuit of the action must be treated as vexatious.
The claims for damages
72. Emerald Meats has sought damages from both the Irish Department of Agriculture and the Commission.
73. It is necessary to consider at the outset whether it is appropriate to consider the merits of the claims for damages.
74. These cases differ from the normal instances where questions arise concerning the liability of authorities in connection with the application of Community rules.
75. Cases coming within the first group are decided by national courts on the basis of the national law on damages. Under the Court's case law there is more uncertainty whether cases in the second group fall to be decided by national courts or the Court of Justice, or by both. There is considerable case law on this matter in which the Court has held that actions for damages must, subject to certain conditions, be brought against national authorities and dealt with by national courts. This applies particularly in cases where the essential purpose of the action for damages is to recover an amount already paid or to secure payment of an amount unlawfully withheld. The cases concerned were typically those in which it was reasonable to assume that the person who had suffered damage could receive full indemnification from national courts.
76. The present cases are unusual in so far as, if one accepts the premiss of Emerald Meats, there is a separate basis of liability for both the Irish Department of Agriculture and the Commission inasmuch as their conduct jointly gave rise to the damage.
77. As I have already reached the conclusion that the Commission is not empowered to take binding steps against decisions of the Irish authorities in connection with the administration of the 1990 and 1991 tariff quotas, the Court should dismiss the claims for damages against the Commission on the grounds that the manner in which the Commission acted was not unlawful vis-à-vis Emerald Meats.
78. In case the Court should find that the Commission did have a duty to intervene with the Irish Department of Agriculture in order to ensure that the latter administered the tariff quota in accordance with the applicable evidentiary rules, I shall make the following brief comments on the issues of the basis of liability and damages.
79. The Court should rule that there is no basis of liability in Case C-317/90. That case does not involve a situation in which the Commission could have intervened with the Department of Agriculture on the ground that it had failed to apply the evidentiary rules set out in the regulations. I have already mentioned above at point 11 that the reason for the Department's refusal was that it had found that the supporting documents submitted did not constitute sufficient proof of meat imports in the quantities required to qualify for a share of the newcomers' quota. The sequence of events in the case also demonstrated that the Commission had in fact acted in the applicant's interest by first suspending and subsequently amending the regulation opening the re-allocation quota as soon as it became aware that a decision on that question was to be given by the High Court.
80. With regard to the other two cases on the administration of the main 1990 and 1991 quotas, it is more difficult to decide whether a basis of liability exists.
81. If the Commission had a duty to intervene with the Department of Agriculture in view of the latter's incorrect application of the evidentiaiy rules, there may be grounds to support the view that the Commission ought to have taken steps in connection with the adoption of the allocation regulation for the 1990 tariff quota. As mentioned above at point 8, Emerald Meats had drawn the Commission's attention to the problem one week before the allocation regulation was due to be adopted definitively. It had pointed out that, on the basis of customs documents from 1987 and 1988, it had been included without any problem on the Department of Agriculture's list of companies entitled to a share of the portion of the 1989 tariff quota administered by the Community. Emerald Meats had also emphasized that it was referred to as importer on the customs documents and that it had sent the Commission copies of the relevant customs documents before the regulation was adopted. The Commission had therefore sufficient grounds on which to request an explanation from the Irish authorities. While the Commission did raise the issue with the Irish authorities, it failed to pursue the matter before the adoption of the allocation regulation. It would not really have been impracticable to obtain clarification of the matter from the Irish authorities, which had a duty under Article 5 of the Treaty to provide the Commission with all necessary information, and it would have been possible for the Commission to postpone the adoption of the allocation regulation, as subsequently happened with regard to the adoption of the 1991 allocation regulation (see point 20 above).
82. As far as the allocation of the 1991 tariff quota is concerned, the position differs in at least two aspects. In the first place, in the course of 1990 the Commission had been able to obtain clarification of the legal and factual position with regard to the administration by the Irish authorities of the 1990 tariff quota. Secondly, Emerald Meats had lodged an application with the United Kingdom authorities, which had informed the Commission that in their view that application could be approved. The problem for Emerald Meats with regard to the 1991 tariff quota, therefore, was not that its application had not been approved by the competent national authorities, but rather that it could be given import licences only if it satisfied the requirement imposed by the Commission's allocation regulation that it lodge a guarantee (see point 20 above). The legal problem connected with the administration of the 1991 quota is therefore whether the Commission's requirement that a guarantee be lodged in the case of existing double applications was unlawful on the ground that the Commission knew, or ought to have known, at that time that the Irish authorities' approval of the applications from the processing companies was based on a misapplication of the evidentiary rules. If the Court should find that the Commission ought at that stage to have intervened with the Irish authorities, the consequence, in my opinion, must be that the Commission acted unlawfully in requiring Emerald Meats to lodge a guarantee. My conclusion on the above basis is therefore that the Commission acted in a manner rendering it liable to Emerald Meats by requiring the lodging of a guarantee.
83. It is therefore necessary to examine whether, as a result of the guarantee required, Emerald Meats incurred a loss for which the Commission has a duty to pay compensation, and also whether there is a causal connection between the conduct giving rise to liability and the loss.
84. It is clear that Emerald Meats could have sought compensation from the Commission for the expense it would have incurred if it had lodged the guarantee. More questionable is whether it can claim damages for the loss occasioned by the delay in the issue of import licences if the only reason for that delay is that its financial position prevented it from lodging a guarantee. As mentioned above, the Commission did not incur liability towards Emerald Meats for the conduct which, in the opinion of the latter, was the cause of its financial position. In my view, the Commission's argument must be accepted that a company which wishes to share in the very considerable economic advantages associated with the obtaining of import licences may also be expected to be able to lodge the required guarantee for payment of the import duties which may be levied if it transpires that the company is not entitled to a share of the tariff quota. The necessary causal connection between the Commission's unlawful conduct and the alleged loss is therefore lacking.
85. I therefore conclude that the Commission should not be ordered to pay Emerald Meats damages in respect of the administration of the 1991 tariff quota either.
Costs
86. The Court should consider making use of the possibilities under Article 69(3) of the Rules of Procedure and order that the parties bear their own costs. In my opinion, there are exceptional circumstances in these cases to justify such a decision. Particular reference may be made to the novelty and complexity of the cases. I would also attach some significance to the fact that Emerald Meats, which has evidently incurred considerable expense in bringing its case, was in a position where it was convinced that the Commission had a duty to intervene with the Irish authorities and the Commission in any event throughout the greater part of the proceedings showed that it considered that the application by Emerald Meats was justified and ought to have been approved by the Irish authorities. It may perhaps also be questioned whether the Commission intimated to Emerald Meats with sufficient clarity and consistency that it did not, under the administrative system, have powers of verification or intervention vis-à-vis the authorities of the Member States.
The possibility of staying these proceedings until the Supreme Court has delivered its judgment
87. If the Court concurs with my views on the resolution of the procedural and substantive problems in these cases, it is proper that it should deliver judgment without awaiting the decision of the Supreme Court on the appeal pending before it.
Conclusion
88. Unless the Court decides to stay the proceedings, I take the view that the Court should in the three cases, for the reasons outlined above:
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.