BIB.JUDGMENT
T-491/9361993A04910018.000111341115623TJUDGMENT OF 24.9.1996 — CASE T-491/93
RICHCO v COMMISSION
Judgment of the Court of First Instance (Third Chamber)
24 September 1996(*)
In Case T-491/93,
Richco Commodities Ltd, a company incorporated under Bermudan law, established at Hamilton (Bermuda), represented by P. V. F. Bos and J. G. A. van Zuuren, of the Rotterdam Bar, with an address for service in Luxembourg at the Chambers of Marc Loesch, 11 Rue Goethe,
applicant,Commission of the European Communities, represented by Berend Jan Drijber and Nicholas Khan, of its Legal Service, and, at the hearing, by Marie-José Jonczy, Legal Adviser, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,
defendant,APPLICATION for (i) annulment of the decision of the Commission of 1 April 1993 addressed to the Vnesheconombank and (ii) damages for the loss allegedly suffered by the applicant by reason of the contested decision,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),
composed of: C. P. Briet, President, B. Vesterdorf and A. Potocki, Judges,
Registrar: J. Palacio González, Administrator,
gives the following
Judgment
Legal background
1On 16 December 1991, having established the need to provide food and medical aid to the Soviet Union and its constituent Republics, the Council adopted Decision 91/658/EEC granting a medium-term loan to the Soviet Union and its constituent Republics (OJ 1991 L 362, p. 89, hereinafter ‘Decision 91/658’), which provides as follows:
‘Article 1
1.The Community shall grant to the USSR and its constituent Republics a medium-term loan of not more than ECU 1250 million in principal, in three successive instalments and for a maximum duration of three years, in order to enable agricultural and food products and medical supplies (...) to be imported.Article 2
For the purposes of Article 1, the Commission is hereby empowered to borrow, on behalf of the European Economic Community, the necessary resources that will be placed at the disposal of the USSR and its constituent Republics in the form of a loan.Article 3
The loan referred to in Article 2 shall be managed by the Commission.Article 4
1.The Community is hereby empowered to finalize, in concert with the authorities of the USSR and its constituent Republics (...), the economic and financial conditions to be attached to the loan, the rules governing the provision of funds and the necessary guarantees to ensure loan repayment.(...)3.Imports of products financed by the loan shall be effected at world market prices. Free competition shall be guaranteed for the purchase and supply of products, which shall meet internationally recognized standards of quality.’
2On 9 July 1992 the Commission adopted Regulation (EEC) No 1897/92 laying down detailed rules for the implementation of a medium-term loan to the Soviet Union and its constituent Republics (OJ 1992 L 191, p. 22, hereinafter ‘Regulation No 1897/92’), which provides:
‘Article 2
The loans shall be concluded on the basis of agreements entered into between the Republics and the Commission which shall include, as conditions for disbursement of the loan, the requirements set out in Articles 3 to 7.(...)Article 4
1.The loans shall only finance the purchase and supply under contracts that have been recognized by the Commission as complying with the provisions of Decision 91/658/EEC and with the provisions of the agreements referred to in Article 2.2.Contracts shall be submitted to the Commission for recognition by the Republics or their designated financial agents.Article 5
Recognition referred to in Article 4 shall only be granted subject to fulfilment of, in particular, the conditions referred to in this Article.
3On 9 December 1992 the EEC, the Russian Federation and its financial agent, the Vnesheconombank (‘VEB’) signed, pursuant to Regulation No 1897/92, a Memorandum of Understanding, on the basis of which the European Community was to grant to Russia the loan provided for by Decision 91/658. It was provided that the EEC as lender would grant to the VEB, as borrower, under the guarantee of the Russian Federation, a medium-term loan of the principal sum of ECU 349 million for a maximum term of three years. The Memorandum of Understanding states:
‘6.The proceeds of the loan, less commissions and costs incurred by the EEC, shall be disbursed to the Borrower and applied, according to the terms and conditions of the Loan Agreement, exclusively to cover irrevocable documentary credits issued by the Borrower in international standard form pursuant to delivery contracts provided that such contracts and documentary credits have been approved by the Commission of the European Communities as complying with the Council decision of 16 December 1991 and the present Memorandum of Understanding.’According to clause 7 of the Memorandum of Understanding, approval of the conformity of the contract was subject to fulfilment of certain conditions. These included a requirement that suppliers were to be selected by Russian organizations designated to that end by the Government of the Russian Federation.
4On 9 December 1992 the Commission and the VEB signed the loan agreement provided for by Regulation No 1897/92 and the Memorandum of Understanding (hereinafter ‘the loan agreement’). That agreement sets out in precise terms the machinery for the disbursement of the loan. It establishes a facility to which recourse may be had during the drawing period (15 January 1993 to 15 July 1993), with a view to the advance of sums authorized for payment of the price of goods supplied.
5The disbursement machinery, based on normal practice in international trade, is described in Part III of the loan agreement as follows:
‘5.DRAWING5.1Procedure
6The irrevocable documentary credit machinery provided for is in accordance with the ‘uniform customs and practices for documentary credits’ elaborated by the Paris International Chamber of Commerce and adopted by the Community as the standard form of documentary credit to be used by issuing banks.
7On 15 January 1993, in accordance with Article 2 of Decision 91/658, the Commission as borrower concluded on behalf of the Community a loan agreement with a consortium of banks led by Credit Lyonnais.
Facts
8The applicant, an international trading company, was contacted, together with other companies, in connection with an invitation to tender organized by Export -khleb, a State-owned company charged by the Russian Federation with the negotiation of wheat purchases.
9On 28 November 1992 the applicant signed a contract with Exportkhleb for the sale of wheat, whereby it undertook to supply 700000 tonnes of milling wheat at a price of US $140 per tonne, CIF free out one safe Baltic Sea discharge port. That contract stipulated that the goods were to be shipped by 28 February 1993.
10Following signature of the loan agreement (see above), the VEB requested the Commission to approve the contracts concluded between Exportkhleb and the exporting companies, including the contract signed with the applicant.
11After the Commission had obtained from the applicant various additional items of essential information, concerning in particular the ecu/US$ exchange rate, which had not been fixed in the contract, it finally gave its approval on 27 January 1993, in the form of a notice of confirmation addressed to the VEB. However, according to the applicant, that notice of confirmation modified the contract in two respects, namely the shipment period, which the Commission unilaterally extended until 31 March 1993, and the ecu/US$ exchange rate. By Addendum No 2 signed on 28 January 1993, Exportkhleb and the applicant finally agreed to fix the exchange rate on the basis of the official rate as at 15 January 1993, bringing the price up to ECU 115.86 per tonne.
12According to the applicant, the documentary credit did not become effective until 22 February 1993, that is to say, one week before the end of the shipment period provided for by the contracts (28 February 1993).
13Although a substantial part of the goods had been delivered or was in the course of shipment, it was becoming clear, according to the applicant, that it would not be possible to deliver all the goods by 28 February 1993.
14On 19 February 1993 Exportkhleb invited all the exporters to attend a meeting in Brussels, which was held on 22 and 23 February 1993. At that meeting Exportkhleb requested the exporters to submit fresh quotations for delivery of what it termed the ‘foreseeable balance’, that is to say, the quantities which could not reasonably be expected to be delivered by 28 February 1993. According to the applicant, the price of wheat on the world market rose considerably between November 1992, when the sale contract was concluded, and February 1993, when the fresh negotiations took place.
15Following negotiations in which the exporting companies had to align themselves on the lowest bid, namely US$155 per tonne, reflecting, according to the applicant, the price on the world market at that date, agreement was reached between Exportkhleb and its contracting partners regarding the allocation of the fresh quantities to be supplied by each company. Richco Commodities was awarded a contract for 450000 tonnes of milling wheat for delivery during the period from March to April 1993. Applying the new rate of exchange fixed by the parties, the price agreed was ECU 132.
16According to the applicant, by reason of the urgency arising from the seriousness of the food situation in Russia, it was decided, at Exportkhleb's request, that those modifications would be formalized by a simple rider to the initial contract (Addendum No 3), dated 23 February 1993. When that addendum was drawn up, it was agreed that the quantity of wheat to be delivered should be reduced to 430200 tonnes, in order, according to the applicant, to prevent the new total price from exceeding the total price initially provided for.
17On 9 March 1993 Exportkhleb informed the Commission that the contract with the applicant had been modified.
18On 12 March 1993 Mr Legras, Director General in the Directorate-General for Agriculture (DG VI), replied to Exportkhleb, stating that he wished to draw its attention to the fact that, since the maximum value of those contracts had already been set by the Commission's notice of confirmation and the whole available amount of credits for wheat was already contracted, such a request could only be accepted by the Commission if the total value of the contracts was maintained, which could be done by a corresponding reduction in outstanding quantities to be delivered. He further stated that the request for approval of the amendments could only be considered by the Commission pursuant to an official request from the VEB.
19According to the applicant, that information was interpreted as confirming the Commission's agreement.
20According to the applicant, the documentation containing the new bids and the amendments to the contracts was officially sent by the VEB to the Commission on 23 and 26 March 1993. The applicant maintains that on 7 April 1993 it was informed by Exportkhleb of the Commission's refusal to approve the amendments to the contract as initially concluded; that refusal was given concrete form by a letter sent to the VEB on 1 April 1993 by the Agriculture Commissioner.
21In his letter of 1 April 1993, the Commissioner, Mr R. Steichen, stated in essence that, having examined the amendments to the contracts concluded between Exportkhleb and various suppliers, the Commission was prepared to accept those relating to the postponement of the final dates for delivery and payment. Qn the other hand, he stated that ‘the magnitude of the price increases is of such a nature that we cannot consider them as a necessary adaptation but as a substantial modification of the contracts initially negotiated’. He went on to state: ‘In fact, the present level of prices on the world market (end of March 1993) is not significantly different from the level which prevailed at the time when the initial prices were agreed (end of November 1992).’ The Commissioner pointed out that the need, first, to ensure free competition between potential suppliers and, second, to secure the most favourable purchase terms constituted one of the main factors governing the grant of approval by the Commission. He found that, in the present case, the amendments had been agreed directly with the companies concerned, without any competition with other suppliers, and concluded: ‘The Commission cannot approve such major changes as simple amendments to existing contracts.’ The Commissioner stated that he would be willing to approve the amendments relating to the postponement of delivery and payment, subject to compliance with the usual procedure. On the other hand, he stated that ‘should it be considered necessary to modify the prices or quantities, it would then be appropriate to negotiate new contracts to be submitted to the Commission for approval under the full usual procedure (including submission of at least 3 offers)’.
Procedure and forms of order sought
22It was in those circumstances that, by application lodged at the Registry of the Court of Justice on 5 July 1993 and registered under number C-343/93, the applicant brought the present action.
23By order of 27 September 1993 the Court of Justice referred the case to the Court of First Instance of the European Communities pursuant to Council Decision 93/350/Euratom, ECSC, EEC of 8 June 1993 amending Decision 88/591/ECSC, EEC, Euratom establishing a Court of First Instance of the European Communities (OJ 1993 L 144, p. 21).
24The case was registered in the Registry of the Court of First Instance under number T-491/93. By document lodged at the Registry on 30 September 1993 the Commission raised an objection of inadmissibility.
25Upon hearing the Report of the Judge-Rapporteur, the Court of First Instance (Third Chamber) decided to open the oral procedure without any preparatory inquiry.
26At the hearing on 25 April 1996 the parties presented oral argument and answered questions put to them by the Court.
27The applicant claims that the Court should:
- —
annul the decision or at least the act of the Commission of 1 April 1993 addressed to the VEB;
- —
order the Commission to pay it the sum of ECU 7374023.78, this sum being the difference between the price agreed and the price paid (ECU 6615990.36), plus ECU 758033.42 for lost interest, together with interest thereon from the date when the action was brought;
- —
order the Commission to pay the costs.
28In its objection of inadmissibility, the Commission contends that the Court should:
- —
declare the application for annulment inadmissible;
- —
declare the application for damages inadmissible;
- —
order the applicant to pay the costs.
29In its observations on the objection of inadmissibility, the applicant claims that the Court should:
- —
dismiss the objection of inadmissibility as regards both the application for annulment and the application to establish non-contractual liability;
- —
alternatively, reserve its decision on the objection until final judgment;
- —
order the Commission to produce the complete text of the two loan agreements and to grant the applicant leave to submit observations in that regard.
Admissibility of the claim for annulment
Arguments of the parties
30The Commission raises an objection of inadmissibility on the ground that the contested measure is not of direct concern to the applicant within the meaning of the fourth paragraph of Article 173 of the Treaty.
31The Commission first presents lengthy explanations describing the machinery of the rules and agreements in issue. It points out that the very nature of the arrangements made is such as to render the claim inadmissible under Article 173 of the Treaty.
32The Commission observes that the Memorandum of Understanding constitutes the basis of the agreement between the Community and the Russian Federation for the grant of the loan. The Memorandum of Understanding fixes the amount of the loan (ECU 349 million) and lists the conditions for approval of contracts.
33As regards the loan agreement, the Commission points out, first, that there is nothing to suggest that the facility for which it provides was to become available with effect from 15 January 1993, since clause 4 requires various conditions to be fulfilled prior to its becoming operational, and, second, that that agreement does not confer on it any role in the conclusion of the supply contracts, its involvement being limited to verifying that those contracts qualify for the Community loan.
34As regards the actual documentary credit operation, the Commission observes that, even though an irrevocable credit creates a legally binding contract between the issuing bank and the debtor, such a contract nevertheless contains no covenant by the Community requiring the supplier's demand for payment to be met by the Community authorities. Moreover, like any unconfirmed credit, the documentary credit issued by the issuing bank merely creates a contingent liability on the part of that bank towards the supplier, since the latter's right to receive payment arises only when the company has submitted the documents required for payment, for example by producing documentation proving shipment of the wheat. The Commission infers from this that the Community consequently assumes no liability towards the supplier or its bank, and observes that, although in practice the Community sends the supplier's bank a reimbursement undertaking when it receives a satisfactory disbursement request, that commitment remains in any event subject to the essential data set out in the notice of confirmation and is, in particular, valid only in relation to the supplier's bank, to whom the Community merely guarantees that the issuing bank's obligation will be honoured in accordance with the documentary credit. The Commission points out that the right per se of a supplier to receive payment on the basis of an unconfirmed letter of credit exists only against the bank issuing the credit — in the present case, the VEB.
35As regards the supply contract concluded with Exportkhleb, the Commission asserts that this was signed before the Memorandum of Understanding and the loan agreement were concluded, and that the applicant had no control either over the Russian loan or over the date on which the issuing bank was to fulfil the conditions to be met in order for the loan to be made available.
36As regards the notice of confirmation, the Commission states that it examined the contract submitted by the VEB in the light of the provisions of the loan agreement and drew up its note on 27 January 1993, that is to say, before the contract was modified.
37Continuing with its opening remarks, the Commission notes the analogies between that system and the system governing the financing of development projects in the context of the Lomé Convention. As the Court of Justice stated in its judgment in Case 126/83 STS v Commission [1984] ECR2769, Article 120 of the Lomé Convention lays down the principle that States have sole responsibility for implementing projects and action programmes. Accordingly, they are responsible for preparing, negotiating and concluding the necessary contracts for the implementation of those operations. The Commission asserts that the position is the same as regards the system set up for the financing of imports of wheat, since the Memorandum of Understanding provides that the loan is to cover irrevocable documentary credits issued by the borrower pursuant to supply contracts. It maintains that it plays an even greater role within the Lomé system than in the context of the Russian loan, inasmuch as it takes no part, in the present case, in the award of the contract.
38In the Commission's view, the contested letter of 1 April 1993 cannot be regarded as being of direct concern to the applicant within the meaning of the fourth paragraph of Article 173 of the Treaty. According to the Commission, the applicant is completely confusing the role of the Commission, which is solely to authorize disbursement of the Russian loan, with its contractual relationship with Exportkhleb. Thus the Commission's refusal had no legal effect on that contractual relationship; regardless of the Commission's decision, Exportkhleb was bound to pay the increased price. The consequence of the Commission's letter is merely that the loan can no longer be used to pay for the deliveries of wheat in accordance with the revised terms of the contract.
39The Commission refers in that regard to the judgment of the Court of Justice in Case 126/83 STS v Commission, cited above, contending that that judgment raised comparable issues in the context of the Lomé Convention and that the decision on those issues is applicable by analogy to the present case.
40The Commission submits, finally, that, just as it is a third party to the sale contract between Exportkhleb and the applicant, the latter is a third party to the loan agreement. In those circumstances, the applicant cannot be directly concerned within the meaning of Article 173 of the Treaty.
41The applicant maintains that the letter of 1 April 1993 is of individual concern to it, and asserts that it is also directly concerned, for several reasons.
42First, it was held by the Court of Justice in Joined Cases 106/63 and 107/63 Toepfer and Getreide-Import v Commission [1965] ECR405 that a decision of an institution is of direct concern to an individual where that decision takes the place of a decision of the national authorities. That analysis can be transferred by analogy to the present case, on the ground that the Commission's approval decision took the place of the decision by the Russian Federation, the VEB or Exportkhleb to proceed, or not to proceed, with the purchase of wheat. Performance of the contract was wholly dependent on the allocation of the Community credits, as is apparent, moreover, from the suspensory condition included in the sale contract.
43Second, the VEB, as the addressee of the Commission's decision, had no discretion in the event of refusal by the Commission to approve the contract. Having regard to the reasoning applied by the Court of Justice in its judgment in Joined Cases 41/70, 42/70, 43/70 and 44/70 International Fruit Company and Others v Commission [1971] ECR 411, the Commission's decision is indeed of direct concern to the applicant.
44Third, the Commission has no discretion concerning the application of the conditions set out in Regulation No 1897/92, which has direct effect. Consequently, contracting undertakings have the right to require the Commission to adopt a decision, whether favourable or unfavourable, concerning approval of the contract. If they are deprived of that right, their interests are prejudiced and they are consequently directly concerned.
45Fourth, the very nature and scope of the Commission's decision prompt the conclusion that the applicant is directly concerned (judgment of the Court of Justice in Case 100/74 CAM v Commission [1975] ECR 1393). The decision was intended to enable the Russian Federation to acquire essential products under normal supply conditions. A refusal decision may mean that the contract falls through or, as in the present case, that a supplier is obliged to deliver at prices not in line with market conditions.
46Fifth, the case-law of the Court of Justice on the Lomé Convention is not applicable in the present case, inasmuch as the Commission was actively involved in the drawing-up and progress of the contract, and, indeed, in the drawing-up and progress of various other contracts concluded by the applicant with Exportkhleb.
Findings of the Court
47According to the fourth paragraph of Article 173 of the Treaty, any natural or legal person may institute proceedings against a decision which, although in the form of a decision addressed to another person, is of direct and individual concern to the former.
48It is necessary, therefore, to determine whether the letter sent by the Commission to the VEB on 1 April 1993 is of direct and individual concern to the applicant.
49First of all, the Commission has not denied that the applicant is individually concerned. Having regard to the circumstances of the case, the Court considers that only the question whether the contested decision is of direct concern to the applicant need be examined.
50The Community rules and the agreements concluded between the Community and the Russian Federation provide for a division of powers between the Commission and the agent appointed by the Russian Federation to arrange the purchase of wheat. It is for that agent — in the present case, Exportkhleb — to select the other contracting party by means of an invitation to tender and to negotiate and conclude the contract. The Commission's role is merely to verify that the conditions for Community financing are fulfilled and, where necessary, to acknowledge, for the purposes of disbursement of the loan, that such contracts are in conformity with the provisions of Decision 91/658 and with the agreements concluded with the Russian Federation. It is not for the Commission, therefore, to assess the commercial contract with reference to any other criteria.
51It follows that the undertaking to which a contract is awarded has a legal relationship only with the party with whom it contracts, namely Exportkhleb, which is authorized by the Russian Federation to conclude contracts for the purchase of wheat. The Commission, for its part, has legal relations only with the borrower, namely the Russian Federation's financial agent, the VEB, which notifies it of the commercial contracts so that their conformity can be recognized, and which is the addressee of the Commission's decision in that regard.
52The action of the Commission does not therefore affect the legal validity of the commercial contract concluded between the applicant and Exportkhleb; nor does it modify the terms of the contract, such as the prices agreed between the parties. Thus, irrespective of the Commission's decision not to recognize the agreements as being in conformity with the applicable provisions, the amendment which the parties made on 23 February 1993 to their contract of 28 November 1992 remains validly concluded on the terms agreed between them.
53The fact that the Commission was in contact with the applicant or with Exportkhleb cannot affect that assessment of the legal rights and obligations which each of the parties involved has under the applicable legislation and contractual agreements. Moreover, as regards the admissibility of the application for annulment, the exchanges relied on by the applicant do not show that the Commission went beyond its proper role, which was to decide whether or not to recognize the conformity of the initial contract or of the amendment thereto. Thus, the sole purpose of the alleged contacts between the Commission and the applicant in January 1993 was to have the parties include in their contract a condition which was indispensable for acceptance of conformity but it was left to the parties alone to modify their contract if they wanted to secure the financing provided for. Similarly, the fact that the applicant was informed by the Commission of developments in the matter, and in particular that it received a copy of the notice of confirmation addressed to the VEB, does not as such establish that that decision is of direct concern to the applicant.
54Whilst it is true that, on receiving from the Commission a decision finding that the contract is not in conformity with the applicable provisions, the VEB cannot issue a documentary credit capable of being covered by the Community guarantee, nevertheless, as stated above, the decision affects neither the validity nor the terms of the contract concluded between the applicant and Exportkhleb. The Commission's decision does not take the place of a decision of the Russian national authorities, since the Commission may only examine the conformity of contracts for the purposes of Community financing.
55Furthermore, as regards the direct applicability of Regulation No 1897/92, on which the applicant relies, the Court observes that Article 5 of that regulation lists on a non-exhaustive basis — as is apparent from the use of the adverbial phrase ‘in particular’ — the conditions which contracts must fulfil in order to qualify for Community financing; in addition, Article 4(1) of the regulation expressly refers to the provisions of the agreements concluded between the Russian Federation and the Commission. As regards the loan agreement, which sets out in precise terms the detailed rules pursuant to which Community financing is granted, Article 5.1 thereof refers to the absolute discretion of the Commission. In those circumstances, the applicant's argument does not appear to be well founded.
56Lastly, in order to establish that the contested decision is of direct concern to it, the applicant cannot rely on the presence in the commercial contracts of a suspensory clause making the performance of the contract and payment of the contract price subject to acknowledgement by the Commission that the criteria for disbursement of the Community loan are fulfilled. Such a clause is a link which the contracting parties decide to make between the contract concluded by them and a contingent future event: their agreement will be binding only if the latter occurs. The admissibility of an application under the fourth paragraph of Article 173 of the Treaty cannot, however, be made dependent on the intention of the parties. The applicant's argument must therefore be rejected.
57In view of the foregoing, the Court considers that the Commission's decision of 1 April 1993, addressed to the VEB, is not of direct concern to the applicant, within the meaning of the fourth paragraph of Article 173 of the Treaty. Consequently, the application for annulment of that decision must be declared inadmissible.
Admissibility of the claim for compensation
Arguments of the parties
58The Commission maintains, first, that the letter of 1 April 1993 does not negate the provisions of the loan agreement concluded with the Russian Federation, and thus it cannot be accused of any unlawful conduct giving rise to liability, a fortiori in relation to a person not directly concerned by that decision.
59The Commission contends, next, that, whilst the Court of Justice has established the principle that a claim for damages is independent of a claim for annulment (judgment of the Court of Justice in Case 4/69 Liitticke [1971] ECR 325, paragraph 6, reversing the decision in Case 25/62 Phumann v Commission [1963] ECR 95; judgment of the Court of Justice in Case 118/83 CMC v Commission [1985] ECR 2325, paragraph 31), a claim for damages will remain inadmissible where what is really in issue is not an award of damages but the validity of the act. In the present case, the applicant is simply seeking to obtain, through an award of damages, the same price as it would have obtained if the Commission had approved the price increase, and thus the claim for damages is an attempt to circumvent the requirements of Article 173 of the Treaty.
60Lastly, the Commission points out that a substantial proportion of the deliveries in respect of which the applicant is seeking compensation was made before the VEB sought the Commission's approval of the amendments. The applicant could obtain from Exportkhleb the difference in price it claims only on the basis of the contractual obligations agreed with Exportkhleb. The Commission cannot be held liable for a breach of contract by Exportkhleb or the VEB at a time when the Community had not yet entered into any commitment in relation to the documentary credit.
61The applicant points out that an action for damages is an independent legal remedy. Its action based on Article 215 of the Treaty is distinct from its action for annulment, since it seeks not the annulment of the decision but compensation for the loss caused by the Community (judgment of the Court of Justice in Case 175/84 Krohn v Commission [1986] ECR 753). The application for damages was not made in order to obtain payment of the revised price agreed with Exportkhleb but with a view to making good the damage caused to it by the Commission's refusal, in breach of the law and contrary to the principle of the protection of legitimate expectations, to approve that agreed price.
Findings of the Court
62The Commission advances, in essence, three arguments in support of its objection to the admissibility of the claim for damages for the loss allegedly suffered by the applicant as a result of the decision of 1 April 1993. First of all, that decision was perfectly legal; next, it cannot be held liable for a breach of contract by Exportkhleb or the VEB at a time when it had not yet entered into any commitment; and lastly, the claim for damages in the present case is not separate from the claim for annulment.
63The Court observes, first, that the arguments maintaining that the decision was legal and denying liability for breach of contract by one of the Russian parties go to the substance of the case and cannot constitute a ground of inadmissibility.
64Second, it is settled case-law that the action for damages provided for by Article 178 and the second paragraph of Article 215 of the Treaty was meant to be an autonomous form of action with a particular purpose to fulfil within the system of remedies provided for (judgment in Krohn, paragraph 26). It follows that, in principle, the inadmissibility of a claim for annulment cannot entail the inadmissibility of a claim for damages for alleged loss.
65It has, however, been held, by way of exception to the principle stated above, that the inadmissibility of a claim for annulment renders a claim for damages inadmissible where the claim for damages is actually aimed at securing withdrawal of an individual decision which has become definitive (judgment in Krohn, paragraph 33, and judgment of the Court of First Instance in Case T-514/93 Cohrecaf and Others v Commission [1995] ECR II-621, paragraph 59), and thus constitutes an abuse of process. The burden on proving such an abuse of process lies on the party pleading it.
66In the present case, the Court considers that the Commission has not discharged that burden. First, the defendant has simply asserted that the applicant is merely seeking to obtain the same price as it would have obtained if the Commission had approved the amendment to the contract. Second, as the Court of Justice held in its judgment in CMC v Commission, which concerned an invitation to tender under the Lomé Convention, it would be wrong, in circumstances such as those of the present case, to dismiss the possibility that acts or conduct of the Commission or its officials or agents might cause damage to third parties. Any person who claims to have been injured by such acts or conduct must therefore have the possibility of bringing an action, if he is able to establish liability, that is, the existence of damage caused by an illegal act or illegal conduct on the part of the Community (judgment in CMC v Commission, paragraph 31).
67In view of all the foregoing considerations, the claim for compensation for the pecuniary damage allegedly suffered by the applicant as a result of the Commission's decision must be declared admissible.
Costs
68Under Article 87(1) of the Rules of Procedure, a decision as to costs is to be given in the final judgment or in the order -which closes the proceedings.
On those grounds,
THE COURT OF FIRST INSTANCE (Third Chamber)
hereby:
- 1.Dismisses the application for annulment as inadmissible;
- 2.Dismisses the objection of inadmissibility inasmuch as it concerns the claim for compensation for the damage allegedly suffered by the applicant;
- 3.Orders the procedure relating to that claim for compensation to be continued in relation to the substance;
- 4.Reserves the costs.