Report for the Hearing in Case C-106/90
I — Legislative background
1. Article 1 of 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 378, p. 16), opens for 1990 a Community tariff quota totalling 53000 tonnes expressed in weight of boned or boneless meat.
2. Pursuant to Article 4 of Regulation No 3889/89, the Commission on 21 December 1989 adopted Regulation (EEC) No 4024/89 laying 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). Article 1(1) and (2) contain the criteria for allocating the two parts of the tariff quota provided for in Article 2 of Regulation No 3889/89, whilst providing that the second part, namely 5300 tonnes, is to be reserved for operators who can furnish proof of having imported and/or exported during 1988 and 1989, quantities of beef of at least 50 tonnes per year.
3. 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), provides in Article 1 as follows:
II — Facts
1. Emerald Meats Limited (hereinafter Emerald Meats) is an undertaking established in Ireland which, inter alia, has been engaged since 1983 in the importation of meat products into the European Community.
2. By a letter of 18 January 1990, communicated on 23 January 1990, Emerald Meats lodged an application with the Irish Department of Agriculture and Food (hereinafter the Department of Agriculture), under Article 4(1) of Regulation No 4024/89, mentioned above, for an allocation of that part of the Community quota referred to in Article 1(1) of that regulation (hereinafter the main quota). In support of that application, Emerald Meats produced certain documents by way of proof as provided for in Article 1(3) of Regulation No 4024/89. The application was based on proof of imports in the three preceding years totalling 921981.81 kgs, that is to say 191963.58 kgs for 1987, 410158.13 kgs for 1988 and 319860.10 kgs for 1989. By a letter of 17 January 1990 Emerald Meats also applied — supplying a certain number of documents by way of proof —under Article 4(2) of Regulation No 4024/89 for an allocation in respect of that part of the tariff quota referred to in Article 1(2) of that regulation (hereinafter the newcomers' quota).
3. By a letter of 30 January 1990 to the Commission's Directorate General for Agriculture, Emerald Meats informed the Commission that it had applied for an allocation under Regulation No 4024/89. Emerald Meats also forwarded to the Commission copies of the documents of proof relating to 1989 and stated in its letter that the documents of proof relating to 1987 and 1988 had been previously submitted to the Department of Agriculture in support of an application made in 1989 under Commission Regulation (EEC) No 2327/89 of 28 July 1989 laying down detailed rules for the application of the import arrangements provided for in Council Regulation (EEC) No 4076/88 for frozen meat of bovine animals covered by CN code 0202 and products covered by CN code 02062991 (OJ 1988 L 220, p. 67), and that on that occasion they had been accepted as proof of imports carried out in 1987 and 1988. Emerald Meats went on to state that in the event of the rejection, either in whole or in part, of its application for 1990, it would request the Commission to take a decision in this connection.
4. On 31 January 1990 the Department of Agriculture forwarded to the Commission the lists of importers and applicants mentioned in Article 4 of Regulation No 4024/89. By a letter of 8 February 1990 the Department of Agriculture informed Emerald Meats that its application in respect of the main quota had been granted only in the amount of 311932 kgs, by reference solely to 1989, given that for 1987 and 1988 the import licences were granted to recognized beef processors and that in those years Emerald Meats effected the imports in question only as agent for those processors.
5. On 31 January 1990 Emerald Meats was told informally by the Department of Agriculture that the latter had not included the total quantities applied for in the list which it was going to communicate to the Commission; thereupon Emerald Meats on the same day sent a fax to the Commissioner for Agriculture and Rural Development requesting him to intervene urgently so as to enable its applications to be treated in a correct manner. On 1 February 1990 Emerald Meats sent by fax a further letter to the Commission's Directorate General for Agriculture in which it pointed out that it still considered that its applications were not being handled correctly by the Irish authorities; consequently, it requested an urgent meeting with the Commission's departments.
6. On 5 February 1990, at the Commission's request, Emerald Meats delivered to the Commission copies of the documents by way of proof relating to 1987 and 1988.
7. On 6 February 1990 the Commission sent a fax in the following terms to the Department of Agriculture:
8. On 8 February 1990 the Commission adopted Regulation No 337/90, mentioned above, which determines to what extent applications for imports submitted under Regulation No 4024/89 may be accepted.
9. On 9 and 14 February 1990 Emerald Meats lodged with the Department of Agriculture applications for import licences relating respectively to the main quota and to the newcomers quota.
10. By letters of 21 February 1990 addressed to the President of the Commission and to the Commissioner for Agriculture and Rural Development, Emerald Meats requested that investigations should be carried out into the alleged irregularities in the application of Regulation No 4024/89 and stated that it would hold the Commission responsible for all losses suffered as a result of those irregularities. In a letter of 8 March 1990, Emerald Meats informed the Commission's Directorate General for Agriculture of, inter alia, the difficulties it was experiencing in obtaining the import licences applied for.
11. Emerald Meats was unable to obtain satisfaction in the discussions between it and the Commission and those between the Commission and the Department of Agriculture and it therefore brought these proceedings for annulment and for the establishment of non-contractual liability. Prior to initiating proceedings before the Court, Emerald Meats brought an action in the Irish courts against the Department of Agriculture's decision not to regard it as the importer of all the quantities declared.
III — Procedure before the Court and forms of order sought by the parties
1. The application brought by Emerald Meats was registered at the Court on 18 April 1990.
2. By a separate document, lodged at the Court Registry on 13 July 1990, Emerald Meats submitted an application for interim measures under Articles 185 and 186 of the EEC Treaty, asking the Court to order the suspension of the operation of the measures contested in the action for annulment and to order the Commission to take such steps as are necessary for the applicant to be granted, pursuant to Article 1(1) and (2) of Regulation No 4024/89, mentioned above, the share of the tariff quota in issue to which it claims to be entitled.
3. By order of 14 August 1990, the President of the Second Chamber, acting for the President of the Court in accordance with the second paragraph of Article 85 and Article 11 of the Rules of Procedure of the Court, dismissed the application for interim measures.
4. Upon hearing the Report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.
5. Emerald Meats, the applicant, claims that the Court should:
6. The Commission, the defendant, contends that the Court should:
IV — Pleas and arguments of the parties
Admissibility
1. According to Emerald Meats, the decision taken by the Commission pursuant to Article 6(1) of Regulation No 4024/89, mentioned above, and Regulation No 337/90, mentioned above, constitute distinct, albeit related, acts. Under Article 6(1) of Regulation No 4024/89, the Commission must first decide whether to accept the figures for imports put forward by the national authorities and then apportion the quota for 1990 by reference to previous imports accepted. Regulation No 337/90 constitutes a separate phase, in which those decisions are communicated to the Member States and importers concerned in a binding form. Thus it is a conglomeration of decisions affecting the legal position of Emerald Meats and other applicants.
2. In the Commission's view, it is wholly artificial to treat the decision taken pursuant to Article 6(1) of Regulation No 4024/89 as being separate from Regulation No 337/90. In fact, this decision is enshrined in Regulation No 337/90. Accordingly, the Court ought not to grant the applicant's claim for the annulment of the decision taken pursuant to Article 6(1) of Regulation No 4024/89.
Substance
1. Emerald Meats submits that the Commission is under an obligation to manage and administer in accordance with Community law the tariff quota which is the subject of Regulation Nos 3889/89 and 4024/89, mentioned above, and, in particular, that it has a duty to ensure that its own acts, adopted within the framework of the administration of that quota, are in accordance with Community law and that, when it knows or ought reasonably to know that the information supplied by a Member State is incorrect, and appears to result from a wrongful interpretation of Community rules, it cannot simply ignore the wrongful nature of the information on which it is relying.
2. The Commission points out, first, that as a result of the judgment of 27 September 1988 in Case 51/87 (Commission v Council [1988] ECR 5459) in which the Court held that the division of a Community import quota into national shares was contrary to Articles 9 and 113 of the Treaty unless it was necessary on administrative, technical or economic grounds precluding the Community administration of the quota, Regulation No 3889/89 no longer provides for the division of any part of the quota covered by it into national shares.
3. In its reply Emerald Meats states that its application before the Court does not concern the illegality of the practices of the Department of Agriculture but is directed at the acts of the Commission which compounded and reinforced the wrongful acts of the Department of Agriculture. Accordingly, the Commission should be responsible for its part in the errors and misinterpretations of the Department of Agriculture and should be liable for its part in the damage resulting to Emerald Meats.
4. In its rejoinder, the Commission points out that by a judgment of 9 July 1991 the High Court in Dublin found in favour of Emerald Meats and awarded damages in the sum of IRL 385922, together with interest of IRL 30873.76 against the Department of Agriculture to cover loss on the main quota for 1990. The Commission concludes therefrom that unless and until the High Court's judgment is overturned by the Supreme Court, before which the Department of Agriculture has lodged an appeal, the action brought by Emerald Meats ceases to have any purpose. Moreover, by two faxes of 17 July 1991, the Commission informed the United Kingdom authorities, with which Emerald Meats had in the meantime lodged applications in respect of the 1991 quota, and the Irish authorities, that Emerald Meats' entitlements for 1988, 1989 and 1990 were to be definitively recognized as being those resulting from the findings of the High Court. Accordingly, and in any event, this action now only concerns compensation for loss allegedly suffered in the past in relation to the 1990 quota, so that there is manifestly no reason for the Court to give a decision prior to the definitive conclusion of the proceedings pending before the Irish courts. The Commission adds that, in the event that the Court were to give judgment before the result of the proceedings before the Irish courts' were known, it would be necessary to take account, first, of the fact, that the Commission's liability, if any, would only be secondary in relation to the liability of the Irish authorities and, secondly, of the principle of unjust enrichment which would preclude Emerald Meats from being compensated twice for the same loss.
1 Language of the case: English.