1. 

The present appeal, brought by Jean-François Giordano, is part of a wider context which also includes the appeals in Cases C‑12/13 P and C‑13/13 P (Buono and Others v Commission), on which I am delivering another opinion today. All these cases have in common a claim for damages against the European Union on account of Commission Regulation (EC) No 530/2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45 °W, and in the Mediterranean Sea. ( 2 )

2. 

Since the present case is concerned with a judgment of the General Court which is different from that contested in Cases C‑12/13 P and C‑13/13 P, and also on account of the different grounds of appeal put forward, in this Opinion I shall analyse primarily, in the context of the solution provided to the present appeal, the issue of harm for which compensation can be awarded. More specifically, I shall examine in detail whether a loss of opportunity may be part of the harm for which compensation can be awarded in an action for a declaration of the European Union’s non-contractual liability.

3. 

Loss of opportunity has already been recognised as harm for which compensation can be awarded on a number of occasions in the case-law of the Court. However, that recognition has always occurred in specific contexts such as the European civil service and EU public procurement. This case will enable the Court to give a ruling on that issue from a wider perspective.

4.

The second paragraph of Article 340 TFEU lays down the substantive rules applicable to the Union’s non-contractual liability in the following terms:

‘In the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.’

5.

Fishing for bluefin tuna is regulated at both international and European level. Since 1997, the Union has been a party to the International Convention for the Conservation of Atlantic Tunas, pursuant to which the International Commission for the Conservation of Atlantic Tunas (ICCAT) adopts recommendations and plans with the objective of guaranteeing the conservation of that resource. In accordance with the decisions of the ICCAT, the Union has adopted a number of instruments, the most important of which for the purposes of the present proceedings are Council Regulation No 520/2007 laying down technical measures for the conservation of certain stocks of highly migratory species and repealing Regulation (EC) No 973/2001 ( 3 ) and Council Regulation No 1559/2007 establishing a multi-annual recovery plan for bluefin tuna in the Eastern Atlantic and Mediterranean and amending Regulation (EC) No 520/2007. ( 4 )

6.

Those Union provisions also fall within the scope of Regulation No 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy. ( 5 ) That instrument lays down a set of general measures aimed at the conservation, management and exploitation of living aquatic resources, practised on the territory of Member States or in Community waters or by Community fishing vessels.

7.

Among the various measures provided for in Regulation No 2371/2002 is Article 7, headed ‘Commission emergency measures’, pursuant to which:

‘1.   If there is evidence of a serious threat to the conservation of living aquatic resources, or to the marine eco-system resulting from fishing activities and requiring immediate action, the Commission, at the substantiated request of a Member State or on its own initiative, may decide on emergency measures which shall last not more than six months. The Commission may take a new decision to extend the emergency measures for no more than six months.

2.   The Member State shall communicate the request simultaneously to the Commission, to the other Member States and to the Regional Advisory Councils concerned. They may submit their written comments to the Commission within five working days of receipt of the request.

The Commission shall take a decision within 15 working days of receipt of the request referred to in paragraph 1.

3.   The emergency measures shall have immediate effect. They shall be notified to the Member States concerned, and published in the Official Journal.

4.   The Member States concerned may refer the Commission decision to the Council within 10 working days of receipt of the notification.

5.   The Council, acting by qualified majority, may take a different decision within one month of the date of receipt of the referral.’

8.

Regulation (EC) No 40/2008 fixes for 2008 the fishing opportunities and associated conditions for certain fish stocks, including bluefin tuna. ( 6 ) The regulation lays down catch limitations and fixes the quantity of bluefin tuna which may be caught in 2008 by Community vessels in the Atlantic Ocean, east of longitude 45 oW, and in the Mediterranean Sea. Those limitations and quantities were amended pursuant to Commission Regulation (EC) No 446/2008. ( 7 )

9.

In the light of information provided at that time by inspectors during visits to the States concerned, the Commission took the view that fishing opportunities for bluefin tuna in the Atlantic Ocean, east of longitude 45 oW, and in the Mediterranean Sea, allocated to tuna vessels flying the flag of Greece, France, Italy, Cyprus and Malta, could be exhausted by 16 June 2008. However, fishing opportunities for purse seiners flying the flag of Spain were to be regarded as exhausted on 23 June 2008. In the light of those facts, and in accordance with Article 7 of Regulation No 2371/2002, the Commission adopted Regulation No 530/2008 ( 8 ) The three articles of Regulation No 530/2008 provide as follows:

‘Article 1

Fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45 °W, and the Mediterranean by purse seiners flying the flag of or registered in Greece, France, Italy, Cyprus and Malta shall be prohibited as from 16 June 2008.

It shall also be prohibited to retain on board, place in cages for fattening or farming, tranship, transfer or land such stock caught by those vessels as from that date.

Article 2

Fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45 °W, and the Mediterranean by purse seine[r]s flying the flag of or registered in Spain shall be prohibited as from 23 June 2008.

It shall also be prohibited to retain on board, place in cages for fattening or farming, tranship, transfer or land such stock caught by those vessels as from that date.

Article 3

1.   Subject to paragraph 2, as from 16 June 2008, Community operators shall not accept landings, placing in cages for fattening or farming, or transhipments in Community waters or ports of bluefin tuna caught in the Atlantic Ocean, east of longitude 45 °W, and the Mediterranean Sea by purse seiners.

2.   It shall be allowed to land, place in cages for fattening or farming and to tranship in Community waters or ports of bluefin tuna caught in the Atlantic Ocean, east of longitude 45 °W, and the Mediterranean Sea by purse seiners flying the flag of, or registered in Spain until 23 June 2008.’

10.

Mr Giordano is the owner of the vessel Janvier Giordano, a purse seiner flying the French flag which carries out fishing activities in the Mediterranean Sea.

11.

In accordance with the EU legislation, the French Republic had 4164 tonnes of bluefin tuna fishing quotas for 2008, of which 90% were allocated to purse seiners flying the French flag fishing in the Mediterranean Sea.

12.

By Decision No 2008PS008-LR of 16 April 2008, the Minister for Agriculture and Fishing granted a special bluefin tuna fishing licence for 2008 to the vessel Janvier Giordano, with a quota of 132.02 tonnes. The licence allowed fishing from 1 April to 30 June 2008.

13.

On 2 June 2008, the Janvier Giordano started its fishing season in Mediterranean waters; that season was brought to an end on 16 June 2008 as a result of the adoption and entry into force of Commission Regulation No 530/2008, the implementation of which led to revocation of the aforementioned fishing licence by decision of 16 June 2008 of the Prefect of the Languedoc-Roussillon Region.

14.

Mr Giordano brought an action in the French administrative courts, contesting the decision of the Prefect. Both the Administrative Court and the Administrative Court of Appeal, Marseille dismissed Mr Giordano’s action on the grounds that the prohibitive measure resulted from Commission Regulation No 530/2008 rather than the decision of the Prefect.

15.

The application for a declaration of the Union’s non-contractual liability, lodged by Mr Giordano as a result of the fishing ban ordered under Commission Regulation No 530/2008, was received at the Registry of the General Court on 25 February 2011.

16.

Shortly afterwards, on 17 March 2011, in a reference for a preliminary ruling on validity from the Prim’Awla tal-Qorti Ċivili, Malta, the Court of Justice gave judgment in AJD Tuna. ( 9 ) That case raised a number of questions concerning the validity of Regulation No 530/2008.

17.

In that judgment, the Court held that the regulation infringed the general principle of non-discrimination on grounds of nationality.

18.

Consequently, prior to the hearing before the General Court, Mr Giordano and the European Commission, in its capacity as the defendant, were invited to make submissions at the hearing on the effects of the judgment in AJD Tuna on the present proceedings.

19.

In his written and oral arguments, Mr Giordano claimed that the General Court should declare that Regulation No 530/2008 had caused damage to his legal situation and that the Commission should therefore be ordered to pay damages and interest in the amount of EUR 542 594. For its part, the Commission claimed that the General Court should dismiss the action in its entirety.

20.

By judgment of 7 November 2012 in Case T‑114/11 Giordano v Commission, the General Court dismissed the action brought by Mr Giordano and ordered him to pay the costs. In an eleven-paragraph reasoning, the General Court held that Mr Giordano had not succeeded in establishing that the alleged damage had actually been sustained.

21.

According to the General Court, relying on its own judgment in Cofradía de pescadores ‘San Pedro’ de Bermeo and Others v Council, ( 10 ) the allocation of a fishing quota does not give rise to an individual right to a specific financial amount but only to a maximum limit on the number of catches, which are not in any way guaranteed. Consequently, the General Court held that even if an unmet quota was due to a prohibition adopted by a public authority, it did not cause actual or certain harm.

22.

Since one of the three conditions necessary for a declaration of the Union’s non-contractual liability had not been satisfied, the General Court dismissed the action in its entirety and ordered the applicant to pay the costs.

23.

The appeal brought by Mr Giordano against the judgment of the General Court of 7 November 2012 was received at the Registry of the Court of Justice on 8 January 2013.

24.

Mr Giordano claims that the Court should:

25.

The Commission contends that the Court should:

26.

According to the Commission, the appeal is inadmissible since two grounds (the second and third) concern conditions for non-contractual liability which were not analysed by the General Court, while another ground (the first) concerns a factual analysis already carried out by the General Court.

27.

Both pleas of inadmissibility must be rejected.

28.

The first plea of inadmissibility raised by the Commission does not concern the admissibility of the appeal from a procedural point of view but rather the second and third grounds relied on by the appellant. The assessment of those grounds will be necessary only if the Court sets aside the judgment under appeal and decides, in accordance with Article 61 of the Statute of the Court of Justice, to give judgment directly on the substance of the case. Therefore, the plea of inadmissibility raised by the Commission in relation to the second and third grounds must be rejected.

29.

The second plea of inadmissibility raised by the Commission should also be rejected. The Commission submits that in holding that the harm alleged by the applicant in the proceedings was neither actual nor certain, the General Court made findings of fact which, according to settled case-law, cannot be reviewed on appeal. However, the Commission’s approach is contrary to the Court’s definition — repeated on many occasions — of the limits of appeal proceedings, since the prohibition of any factual analysis on appeal concerns strictly factual assessments of extralegal material adduced by the parties.

30.

That is not the case here, since the appellant does not dispute the analysis of the facts conducted by the General Court but rather the latter’s finding that the allocation of fishing quotas lacked legal relevance for the purposes of establishing harm. In other words, the General Court did not carry out an analysis of the specific facts as adduced by the applicant and instead it took a legal view pursuant to which the fishing quotas which were not met for unexpected reasons are not part of the harm for which compensation can be awarded. That finding, reflected in paragraphs 18 and 19 of the judgment under appeal, is not factual but legal and, therefore, it can be reviewed on appeal.

31.

Accordingly, the second plea of inadmissibility raised by the Commission must be rejected.

32.

The appellant rejects the arguments of the General Court to the effect that the harm is not certain. With regard to the reasoning in the judgment under appeal, the appellant calls into question the necessary relationship which the General Court requires between the individual right to exhaustion of the quota and harm for which compensation can be awarded. In the appellant’s opinion, the fact that there is no individual right to exhaustion of the quota does not mean that there is not a strong likelihood of exhaustion of that quota. In fact, in the appellant’s opinion, owing to the restrictive nature of current bluefin tuna fishing licences, practice confirms that tuna vessels systematically exhaust their quotas.

33.

According to the appellant, a purse seiner can use up its annual fishing quota in 15 days. In fact, in the 13 days of the Janvier Giordano’s season which immediately preceded the prohibition ordered by Regulation No 530/2008, the vessel caught a total of 71.571 tonnes, that is 54% of its quota. In the appellant’s opinion, had the season been able to continue without interruption until its closing date of 30 June 2008, the quota would have been exhausted. Accordingly, Regulation No 530/2008 caused actual and certain harm, the quantification of which the appellant explains in detail by reference to the sale price per kilo of bluefin tuna during the 2008 season and the total weight of the remaining unfulfilled quota. Therefore, in the appellant’s opinion, the harm sustained, including interest, amounts to EUR 542 594.

34.

The appellant also claims that the harm sustained must be considered to be a loss of opportunity and that the Court has recognised this kind of harm in its case-law. The appellant relies in support on the judgment in CNTA v Commission (Case 74/74 [1975] ECR 533). The appellant also draws attention to the fact that EU law provides for compensatory measures for those affected by an unexpected cessation of fishing activities which has an impact on satisfaction of the quota. In that connection, the appellant cites, by way of example, Article 21(4) of Regulation (EEC) No 2847/93. ( 11 ) That article, which refers in general terms to ‘measures’ aimed at ‘remedying in an appropriate manner the prejudice caused’, confirms that EU law accepts that a quota which is unfulfilled as a result of an order to cease fishing causes harm for which compensation can be awarded.

35.

The Commission counters the appellant’s arguments with two lines of defence.

36.

First, the Commission disputes that it is possible to allege a loss of opportunity in a case of this kind. In the Commission’s opinion, it is apparent from the case-law of the Court that a loss of opportunity may be accepted for the purposes of compensation only where it is established that there is a right to obtain a financial benefit, or at least a legitimate expectation of doing so. The Commission takes the view that Mr Giordano has been unable to prove that he had a right of any kind to obtain a particular level of catches, nor has he adduced evidence which shows with mathematical accuracy his real chances of achieving such a level of catches.

37.

Second, the Commission disputes that the quota allocated to Mr Giordano constitutes a right and that the EU legislation on fishing grants a right to compensation where the quota is not met. According to the Commission, the purpose of the quota is simply to fix a maximum limit for catches and not to guarantee fishing expectations. That function as a limit for catches is consistent with the basic objective underlying the common fisheries policy, which is aimed at achieving a balance between economic activity and the conservation of living marine resources. In addition, according to the Commission, the EU provisions are aimed at safeguarding the principle of relative stability, pursuant to which it is the Member States which hold a ‘right’ to a certain predetermined level of fishing opportunities. However, the fact that the Member States have this ‘right’ does not translate into the creation of individual rights for every holder of a fishing quota. This is the context in which the provisions cited by the appellant must be interpreted, since those provisions refer rather to the right of Member States to be compensated for their lost quotas but not to the right of the quota holders where their activities must cease unexpectedly for reasons relating to the environment and the conservation of living marine resources.

38.

This ground primarily raises the question of whether the harm sustained by the applicant is ‘certain’. The General Court held that since the applicant is not the holder of an individual right to exhaustion of the quota, he did not sustain certain harm simply because his fishing season came to an early end. The applicant disputes that finding.

39.

It is apparent from the applicant’s and the Commission’s pleadings that the situation in the present proceedings is by its nature a loss of opportunity. By ordering the compulsory cessation of the season two weeks before its close, the Commission deprived the applicant of the opportunity to exhaust his quota for 2008. That factor — not the loss of a guaranteed financial benefit but rather the loss of the opportunity to obtain a financial benefit — is the one which the General Court rejected because it did not consider it to be a case of ‘certain’ harm within the meaning applied by the case-law of the Court of Justice on the EU’s non-contractual liability.

40.

Until now, this concept of loss of opportunity has developed in the Court’s case-law in a rather grey area. On the one hand, the Court has formally recognised it in disputes relating to the EU civil service and in disputes relating to EU public procurement, albeit, in the latter case, in very restrictive terms. ( 12 ) On the other hand, the EU legislature has provided, on a sectoral basis, for harmonisation measures aimed at ensuring that the Member States cover this type of harm in claims for compensation against them. ( 13 ) To add more features to a complex picture, the case-law has specifically broadened the category of loss of profit to the extent that, in some cases, it has been assimilated to what might more appropriately be regarded as a loss of opportunity.

41.

Those are the aspects which the Court must consider when resolving a case which raises the question whether it is appropriate to address from a broader perspective the issue of loss of opportunity in disputes relating to the EU’s non-contractual liability and, more specifically, in the light of the second paragraph of Article 340 TFEU.

42.

The appearance of loss of opportunity in the law of damages is relatively recent. It is common knowledge that this type of loss did not form part of the law of damages until the end of the 20th century, coinciding with the appearance of so-called risky theory in the field of social sciences. ( 14 )

43.

In general terms, loss of opportunity differs from the other components of harm for which compensation can be awarded because it refers to a future profit which is only probable. Loss of opportunity does not refer to certain earnings but rather to earning opportunities which are in themselves real, regardless of how they are quantified. Logically, such earning opportunities cannot be purely hypothetical and instead they must be real opportunities which have a high chance of being converted into financial benefit. Accordingly, what characterises loss of opportunity and distinguishes it primarily from loss of profit is a probabilistic factor, albeit not just any kind of probability but rather the strong probability of fulfilling an expectation.

44.

It is indeed the case that the grant of a right to compensation on the grounds that a mere chance of future financial benefit has failed may create a very substantial level of legal uncertainty. It is not surprising, therefore, that for a long time loss of opportunity was not part of the law of damages of the Member States or non-member countries, such as States with a common law tradition or States with a continental European influence, such as Latin America. ( 15 ) However, the emergence of risk theories, which make it possible to quantify the degree of probability of future events in certain factual contexts, enabled the national courts, and the legislatures of some States, to make the chance of future earnings a component of the current assets of a natural or legal person. ( 16 )

45.

It must be possible for a strong, quantifiable chance of future financial benefit to be converted into an integral part of the harm for which compensation can be awarded. In so far as that chance of financial benefit is susceptible of proof and as long as it may be quantified, for example proportionally, in accordance with a sufficiently precise methodology, that financial benefit becomes part of the assets of the person entitled to it. Accordingly, the loss of that chance as a result of an unlawful act must become an integral component of the harm for which compensation can be awarded.

46.

Loss of opportunity first appeared in a clearer form in the law of damages in the field of medical liability. ( 17 ) A doctor who, in a case of malpractice, does not diagnose a serious illness for which, at the material time and in accordance with official statistics, there was an 80% chance of survival, creates harm for which compensation can be awarded if that malpractice ends with the death of the patient. That type of situation, in which a probabilistic factor, a high level of probability which can be established by technical means and a clearly harmful outcome are combined, opened the way for the recognition of loss of opportunity in the law of damages.

47.

In addition, the development of highly sophisticated methodologies for calculating risk, primarily in the field of economics, has contributed to the inclusion of probabilistic factors at the present time, rather than in the future, in the assets of a natural or legal person. An undertaking’s prospects of growth, plans for public investment in a sector in which an undertaking operates, and the prediction of developments on the stock markets, to give just a few examples, have a real impact on the present, not the future, value of such undertakings. The fact that those prospects are exposed to events the probability of which is not guaranteed in no way affects the inclusion of such opportunities (and their respective economic value) in the current assets of the person concerned. Loss of opportunity as a result of unlawful conduct therefore creates harm for which compensation can be awarded.

48.

That is the situation which currently prevails in most of the Member States, in both the field of civil non-contractual liability and that of the financial liability of Member States. ( 18 ) It is indeed the case that loss of opportunity appears mainly in sectoral spheres, such as the award of public contracts, health law and commercial law. However, that does not mean that, as matters currently stand, the category has not become sufficiently general in nature.

49.

Proof that loss of opportunity forms part of the aforementioned ‘general principles common to the laws of the Member States’, within the meaning of the second paragraph of Article 340 TFEU, may be found in the case-law of the Court of Justice. In recent years there has been a very clear tendency towards acceptance that compensation may be awarded for loss of opportunity. This is progress which has been made cautiously and primarily on a sectoral basis, and I shall outline its general features below.

50.

The sphere in which loss of opportunity has been expressly accepted and reiterated is that of the EU civil service. In general terms, since the judgment in Commission v Girardot, ( 19 ) the Court of Justice has endorsed the case-law of the General Court pursuant to which loss of opportunity, in the specific sphere of disputes relating to the civil service and therefore based on Article 270 TFEU, constitutes actual and certain harm for which compensation can be awarded. In addition, such harm is material rather than non-material. ( 20 )

51.

The facts of the Girardot case are very representative since it concerned a worker employed as a member of the temporary staff who was excluded from an internal reserve competition because she did not satisfy the requisite conditions. The applicant subsequently applied for a number of posts in the same institution but she was excluded from those selection procedures because she was not a member of staff covered by the Staff Regulations. Therefore, if she had been successful in the internal reserve competition referred to, the applicant would have satisfied the conditions for entering the second competition.

52.

In its judgment, ( 21 ) the General Court held that the first exclusion of the applicant was unlawful and went on to find, in an interim judgment, that that unlawful exclusion had deprived the applicant of the opportunity to enter a later competition. ( 22 ) In fact, the applicant had applied for nine of the posts offered in the second competition. The General Court held that the applicant had been unfairly deprived of a strong chance of being awarded one of the posts in question. The Court of Justice endorsed the General Court’s approach on appeal.

53.

In paragraph 115 of the judgment in Girardot, the General Court stated as follows: ‘it cannot be held that, on conclusion of the first stage of the procedure for the filling of vacant posts laid down by Article 29(1) of the Staff Regulations, the Commission … would certainly have accepted one of Mrs Girardot’s applications and, consequently, that she had every chance of being awarded a temporary staff contract … It may none the less be considered that Mrs Girardot had a strong chance in that regard, of which she was deprived because of the rejection of her applications by the Commission, which, on the evidence, did not examine them.’ ( 23 )

54.

That conclusion was the basis for the finding that Mrs Girardot had sustained damage for which compensation could be awarded, but that damage could not be quantified by equating it to the amount of income which Mrs Girardot would have received as a member of the temporary staff but rather, the General Court decided ex aequo et bono, by applying a multiplying factor of 0.5 to that amount. The Court of Justice expressly endorsed the method of calculation devised and applied by the General Court.

55.

A similar line of reasoning, albeit this time within the scope of the second paragraph of Article 340 TFEU, may be found in the case-law relating to EU public procurement. In situations where a tenderer is unlawfully excluded from a procedure for the award of a public contract by an EU institution, it may be impossible to reopen the tendering procedure. In those circumstances, the General Court has accepted on a number of occasions that the excluded tenderer is entitled to claim compensation corresponding ‘to the loss of the chance of securing the contract’, ( 24 ) and, if it can be definitively established that the tenderer should have been awarded the contract, the loss of profit. The General Court has repeatedly pointed out that ‘an economic value can be attributed to the loss of chance of securing a contract’. ( 25 )

56.

It is apparent from the foregoing that, in the fields of the civil service and EU public procurement, the loss of a strong chance as a result of an unlawful act constitutes material harm for which compensation can be awarded. That conclusion has not yet become widespread in the EU law of damages but it is clear from a number of the Court’s decisions that the concept is not completely unknown in the Court’s general judicial practices.

57.

Attention must first be drawn to an early line of the Court’s case-law from the mid-1970s, which clearly held that the requirement of ‘certain’ damage does not refer to absolute certainty. ( 26 ) That assertion is no coincidence since it was formulated in order to differentiate the conditions for an action seeking a declaration of liability under Articles 34 and 40 of the ECSC Treaty from those applicable to the EEC Treaty, which were more generous. By accepting that the damage must be certain but not absolutely precise, the Court was aiming to be consistent with the broader wording of the former Article 215 EEC. That statement did not have a direct effect on the applicants’ particular situation because it was formulated in the section relating to the admissibility of the action. This also occurred in a number of cases during the 1970s and 1980s, in which the Court relaxed the condition relating to the certainty of the damage in order to find that the applicant had an interest for the purposes of legal standing, and then went on, in its examination of the substance, to dismiss the action on the grounds that there was no unlawful act. ( 27 )

58.

In addition, in other cases, the Court had the opportunity to rule on whether the harm in question was certain in the analysis of the substance, taking a similar approach to that described in the previous paragraph. Thus, in Ireks-Arkady v Council and Commission ( 28 ) the Court held that the Community was liable as a result of the abolition of the production refunds for quellmehl. That abolition had previously been held to be unlawful, on the grounds that it was contrary to the principle of non-discrimination, in the judgment in Ruckdeschel and Others, ( 29 ) since there was considered to be an unjustified difference in treatment between quellmehl and pre-gelatinised starch. Although the Council reintroduced production refunds for quellmehl, it did so with retroactive effect from the date of the judgment in Ruckdeschel and Others.

59.

That is why, when it was seised of an action seeking a declaration of non-contractual liability, which had been brought after the judgment in Ruckdeschel and Others by quellmehl producers, the Court held in Ireks-Arkady v Council and Commission that the Council had gravely and manifestly disregarded the limits on the exercise of its discretionary powers. The Court took the view that the origin of the damage alleged by the applicant lay in the abolition by the Council of the refunds which should have been paid to quellmehl producers between the date of withdrawal of the refunds and the date of publication of the judgment in Ruckdeschel and Others. Although the Court drew attention in its decision to the difficulty involved in the exact quantification of such damage, the fact that that damage was not absolutely certain did not present any obstacle when it came to finding that the Community was liable.

60.

The reasoning in Ireks-Arkady v Council and Commission is not isolated in the case-law. More recently, in Agraz and Others v Commission, ( 30 ) the Court was seised of a dispute concerning whether the Commission’s discretion for the purposes of setting for the 2000/2001 marketing year the minimum price and the amount of production aid for processed tomato products precluded a finding that the loss sustained by the producers of those products in a number of Member States was certain. In that case, the Commission had not taken into account the price of Chinese tomatoes when setting the amount of aid, a factor required by the relevant EU legislation. The Court of First Instance held that the regulation setting the amount of aid was unlawful, on the grounds that it breached essential procedural requirements for the abovementioned reason. However, since the Commission’s discretion in setting the amount of aid was very broad, the Court of First Instance held that the loss in question was not certain.

61.

In Agraz and Others v Commission, the Court of Justice diverged from the solution adopted by the Court of First Instance and held that the loss sustained by the tomato producers was indeed certain. In the words of the Court itself, ‘[f]ar from being hypothetical or merely possible, the existence of the damage alleged by the appellants is thus indisputable. Despite the continuing uncertainty regarding its exact quantification, it is moreover possible to put an economic value on that damage.’ ( 31 ) The Court did not consider it relevant that there had been no difficulties in disposing of the Community production during the marketing year in question or that the planned management system made it possible to ensure disposal of the tomato production during the marketing year. Because the amount of aid had been set unlawfully, the tomato producers of a number of Member States were deprived of the chance to dispose of tomatoes under more favourable conditions. According to the Court, although the quantification of the loss was not absolutely certain, that factor allowed the appellants to claim compensation for material damage.

62.

In view of the foregoing, I believe that important progress has been made in the Court’s case-law which warrants examination from a more general perspective. It follows from the above analysis that loss of opportunity not only constitutes a right to compensation available to the staff of the institutions but that it is also a separate category with consequences for a number of areas of EU law. Adding to this the fact that it is a category which exists in a large number of Member States, it does not stretch the point to state that loss of opportunity, as an integral part of harm for which compensation can be awarded, is one of the ‘general principles common to the laws of the Member States’, as required by the second paragraph of Article 340 TFEU.

63.

The case-law referred to above does not simply accept, without further ado, that there has been a loss of opportunity. On the contrary, considerable caution is evident in those judgments when it comes to accepting that type of loss, which is subject to a number of conditions that are not easily satisfied.

64.

First, the chance lost must be strong, as is clear from the judgment in Girardot. Although there are a number of techniques for measuring probability, the Court must choose a criterion based on the firm existence of a future disadvantage. In any event, the loss of opportunity must always be sufficiently foreseeable for it to be established by means of conventional modes of proof.

65.

Second, the loss of a strong chance is not the same as the creation of a loss which has an absolute probability of being confirmed, since otherwise it would not be a loss of opportunity but rather a loss of profit. It should be noted that, in most of the cases in which the courts of the European Union have given judgment in this regard, the quantification of loss of opportunity was dealt with in an interim judgment or, in the case of a judgment on appeal, in a new judgment at first instance after the case had been referred back. That explains why, to date, the Court of Justice has not had many opportunities to develop its case-law on this subject.

66.

Third, loss of opportunity does not confer a right to be compensated for the entire loss of the financial benefit the expectation of which has failed. Mrs Girardot could not claim the total amount of the wages she would have earned had she been recruited, in the same way as the excluded tenderer could not claim the total price of the contract in the terms set out in his tender. The Court of Justice and the General Court have followed the Member States’ practice in accepting a loss which is always to some degree lower than the possible financial benefit lost. Thus, in Girardot the General Court opted for a method, expressly endorsed by the Court of Justice, whereby it applied a multiplying factor of 0.5 to the loss of remuneration sustained by Mrs Girardot. That factor represents an estimate of the chance, as a percentage, that Mrs Girardot had of being awarded one of the posts, in that case 50%.

67.

Fourth and finally, the burden of proving the opportunity in a particular case must naturally fall on the applicant, since it is for him to establish not only the strength of the lost opportunity but also the degree of probability which actually existed. The emergence of highly sophisticated methods capable of measuring the probability of future earnings, including lost future earnings, makes that task easier for the parties, particularly in the field of economic law, when it comes to calculating accurately the financial amount of the lost opportunity.

68.

In summary, I can find no reason for rejecting in general that loss of opportunity is an integral part of the harm for which compensation can be awarded, on the basis of the second paragraph of Article 340 TFEU. The evolution of comparative law, the development of the Court’s case-law and the modes of proof now available to the parties enable the Court to hold that EU law of damages should compensate for the loss of a strong chance resulting from an unlawful act adopted by an institution.

69.

In the light of the arguments set out above, I shall now go on to analyse the ground put forward by Mr Giordano in relation to whether the harm in the present case is ‘certain’.

70.

In the judgment under appeal, the General Court held that the appellant had not sustained certain harm because the EU legislature did not grant an individual right to exhaustion of the quota. On that premiss, whereby the concept of an individual right to the quota and to exhaustion of that quota is closely associated with the third condition for the EU’s non-contractual liability, namely the existence of harm for which compensation can be awarded, the General Court held that the harm sustained by Mr Giordano was not certain and, as a consequence, dismissed his action.

71.

In support of its reasoning, the General Court cites ‘by analogy’ the judgment of the Court of First Instance in Cofradía de pescadores ‘San Pedro’ de Bermeo and Others v Council, ( 32 ) in which it was held that the setting of a quota by an EU act does not grant any rights at all to the quota holder but merely fixes a maximum threshold for catches. ( 33 )

72.

It is important to point out that the judgment in Cofradía de pescadores ‘San Pedro’ de Bermeo was the subject of an appeal on a point of law to the Court of Justice and that the reasoning of the Court of First Instance was broadly upheld. ( 34 ) However, the Court of Justice ruled only on whether the quota grants a right in relation to the unlawful act and not the harm. The Court of Justice concluded, like the Court of First Instance, that the measures which had been declared unlawful breached a number of measures of EU law, specifically the principle of relative stability and the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic ‘which are not intended to grant subjective rights to individuals’. ( 35 ) Accordingly, the breach of those measures did not confer on the appellants a right to compensation under what was then Article 288 EC (now, the second paragraph of Article 340 TFEU).

73.

At no point in its judgment in that case did the Court of Justice rule on whether the breach had caused certain harm. In the judgment under appeal, the General Court did rule on that question and held that, since no individual right existed and future catches were unforeseeable, the harm sustained by the appellant was not certain and, therefore, was not harm for which compensation can be awarded.

74.

In the light of the foregoing, I believe that, in the judgment under appeal, the General Court did not follow case-law of the Court of Justice when it held that the harm sustained by Mr Giordano was not certain and instead it applied case-law relating to the unlawfulness of the measure which caused the harm. ( 36 ) To my mind, that case-law led the General Court to err in law.

75.

In Cofradía de Pescadores ‘San Pedro’ de Bermeo it was alleged that damage resulted from the infringement of the principle of relative stability and the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic. The Court of Justice rightly confirmed that those measures do not grant an individual right to the holders of fishing quotas and that they merely establish a system for the distribution between the Member States of living aquatic resources, the subsequent implementation of which requires numerous provisions of EU and national law.

76.

However, as I shall explain below and as I had occasion to explain in detail in the Opinion in the Joined Cases Buono and Others v Commission, the unlawful act which gave rise to harm in the present case is in fact the infringement of the principle of non-discrimination on grounds of nationality, a rule which, according to settled case-law, does create, in the event of infringement, a breach of a higher-ranking rule which grants rights to individuals. Accordingly, the General Court erred in holding that an infringement of the kind referred to in Cofradía de Pescadores ‘San Pedro’ de Bermeo and Others v Commission was equivalent to the infringement at issue in the present case, which actually concerns the principle of non-discrimination on grounds of nationality.

77.

Based on that association between the two cases, the judgment under appeal concluded that the harm sustained by Mr Giordano is not ‘certain’. However, that line of reasoning cannot be upheld.

78.

According to the case-file, Mr Giordano held a fishing licence issued by the Prefect and subject to the corresponding quota, which was 132.02 tonnes. The licence allowed fishing from 1 April to 30 June 2008. As a result of the regulation, fishing for bluefin tuna was halted from 16 June in the waters in which Mr Giordano operated. Until then, Mr Giordano had caught a total of 71.571 tonnes. Therefore, as a consequence of Regulation No 530/2008, Mr Giordano was unable to catch the 60.449 tonnes still available to him under his licence.

79.

In the light of the criteria set out in points 38 to 69 of this Opinion, it is clear that Mr Giordano was deprived of the opportunity to obtain a future financial benefit, that is the benefit resulting from exhaustion of his fishing quota. The fact that there is no right to a quota is not synonymous with the harm being uncertain, in the same way as the fact that an institution has a discretion does not mean that any harm which may be caused is not certain. The General Court makes an erroneous association between the condition that a right must be granted, as required by the case-law of the Court of Justice with regard to the definition of an unlawful act, and the condition that the harm must be certain. This is an association which is not only alien to the way in which harm has traditionally been defined in the case-law of the Court but it is also one which hinders, and in some cases precludes, any possibility of receiving compensation despite having sustained economically significant damage.

80.

The judgment in Agraz and Others v Commission is categorical when it refers to a situation in which economic damage exists but is at the same time subject to a high level of probabilistic imprecision. After observing that the Commission had a wide discretion, which made it impossible to guarantee that in the future a decision would be adopted which was favourable to the appellant’s interests, the Court of Justice held that ‘[d]espite the continuing uncertainty regarding its exact quantification, it is moreover possible to put an economic value on that damage’. ( 37 ) In any event, as I explained at point 64 of this Opinion, the important point is that there must be a strong chance of obtaining a financial benefit.

81.

As stated above, the judgment under appeal merely holds that the harm is not certain since there is no individual right arising from the quota. That approach, together with the fact that Mr Giordano was prevented from obtaining a benefit of unquestionable financial value is sufficient for a finding that the ground relied on by Mr Giordano is well founded and, accordingly, the judgment at first instance must be set aside.

82.

In the light of the foregoing, the other grounds become ineffective and I therefore propose that the Court allow the appeal in part by upholding the first ground of appeal alleging an error in the interpretation of the second paragraph of Article 340 TFEU in relation to the certainty of the harm sustained by the appellant.

83.

Under Article 61 of the Statute of the Court of Justice, ‘if the appeal is well founded, the Court of Justice shall quash the decision of the General Court’ and may ‘itself give final judgment in the matter, where the state of the proceedings so permits’.

84.

To my mind, the Court is in a position to give partial judgment in the matter.

85.

In that connection, it is settled case-law that, in relation to the EU’s non-contractual liability for the unlawful conduct of its institutions and bodies, there is a right to compensation where three conditions are met: the rule of law infringed must be intended to confer rights on individuals and the breach must be sufficiently serious; the existence of damage must be established; and, lastly there must be a direct causal link between the breach which is the responsibility of the European Union and the damage sustained by the injured parties. ( 38 )

86.

As explained above, the present case is characterised by the fact that the rule of law infringed is the principle of non-discrimination on grounds of nationality, as the Court confirmed in AJD Tuna. There is abundant case-law of the Court on this subject, and the breach of that fundamental principle of the Union suffices for a finding that the infringement is sufficiently serious. ( 39 )

87.

The only rule of law infringed is that principle rather than any of the other principles invoked by the appellant, since the Court has had occasion to refer to possible infringements by Regulation No 530/2008 of, inter alia, the principles of proportionality, legitimate expectations and property ownership. The only criticism which could be made of that regulation, after the exhaustive analysis carried out by the Court in AJD Tuna, is that relating to the principle of non-discrimination on grounds of nationality. Contrary to that principle, Mr Giordano was permitted to pursue his fishing activities for a week less than purse seiners flying the Spanish flag.

88.

Accordingly, the condition relating to the existence of an infringement of a rule of law intended to confer rights on individuals and the sufficiently serious breach of that rule is satisfied.

89.

Further, I believe that there is a direct causal link between the breach which is the responsibility of the Union and the damage sustained by the injured party, since it is clear that Regulation No 530/2008 alone is the cause of the unexpected cessation of Mr Giordano’s fishing activities.

90.

However, it is important to introduce a qualification which affects the extent of liability.

91.

The unlawful act which caused harm to Mr Giordano is, as already explained, the infringement of the principle of non-discrimination on grounds of nationality in view of the unjustified difference in treatment between purse seiners flying the Spanish flag and other purse seiners. Since Spanish purse seiners had an extra week in their season, Mr Giordano was deprived of a valuable period of activity from which other vessels benefitted.

92.

Since the liability alleged by the appellant is based on an unlawful act, and since the existence of other unlawfulness affecting Regulation No 530/2008 was ruled out in the previous paragraph, I believe that a causal link exists only between the act constituting the discrimination, namely the extra week of fishing enjoyed by purse seiners flying the Spanish flag, and the harm sustained. The discrimination declared unlawful by the Court in AJD Tuna left the appellant in a worse position for just one week but not for the following week, when all tuna vessels, including Spanish ones, were prevented from pursuing their activities.

93.

The fact that the EU’s non-contractual liability is based essentially on the unlawfulness of the harm, as the appellant in these proceedings has claimed, means, therefore, that the causal link must be limited to the connection between the unlawful acts and the harm sustained but not other acts that are separate from the unlawful act, no matter how connected they may be to the facts of the case. Since the unlawful act identified concerns the week during which the appellant was prevented without justification from pursuing an economic activity, that is the relevant period of time for the purposes of non-contractual liability for the unlawful act.

94.

Therefore, I propose that the Court limit the causal link to that existing in the period from 16 to 23 June 2008, during which Regulation No 530/2008 unlawfully prohibited the appellant from carrying out his fishing activity, unlike Spanish purse seiners.

95.

Accordingly, the condition relating to the existence of a direct causal link between the breach which is the responsibility of the Union and the damage sustained by the injured party is satisfied, provided that the damage is limited to the period from 16 to 23 June 2008.

96.

Finally, it is necessary to confirm whether the existence of damage has been established and whether that damage is actual and certain.

97.

As I explained at points 49 to 61 of this Opinion, the case-law of the Court has repeatedly accepted that damage does not necessarily have to be absolutely certain and that the certainty of damage may be established in the case of the loss of a strong chance which is the direct result of an unlawful act of the Union. I shall not repeat at this juncture what I have already set out in detail at points 38 to 69 of this Opinion, but suffice it to observe here that the loss of a strong chance constitutes actual and certain damage for which compensation can be awarded.

98.

According to the case-file, Mr Giordano held a fishing licence which permitted him to carry out an economic activity until 30 June 2008. Further, in previous years and as a general rule, the fishing quotas of owners like Mr Giordano were exhausted, and this has not been disputed by the Commission.

99.

Moreover, the fact that there was strong evidence that the fish stocks would be exhausted before the end of the season does not appear to have prevented purse seiners flying the Spanish flag from continuing to fish between 16 and 23 June 2008, including in the same waters where purse seiners flying the French flag, like that of Mr Giordano, usually fish.

100.

Because loss of opportunity does not cover the full amount of the lost financial benefit, the arguments advanced by the Commission merely confirm that the probability that Mr Giordano would continue to satisfy the quota during the week from 16 to 23 June 2008 was not absolute but in no way invalidate the strength of the chance lost.

101.

The parties to the proceedings at first instance did not have the opportunity to discuss in detail Mr Giordano’s exact chances of obtaining a financial benefit during the period in 2008 concerned. That question, which is closely linked to the quantification of the harm sustained, was not discussed in the terms set out herein during the proceedings before the General Court.

102.

Accordingly, I invite the Court to refer the case back to the General Court so that, in the light of the arguments set out above, the latter may rule on the quantification of the harm sustained by the appellant.

103.

Although I propose the partial referral of the case back to the General Court, I believe that the main issue of the present appeal has been resolved above. Therefore, in accordance with Articles 138(1) and 184(2) of the Rules of Procedure, I propose that the Court order the Commission to bear the costs of the present appeal.

104.

In the light of the foregoing considerations, I propose that the Court should:

Allow the appeal in part, by upholding the first ground of appeal alleging an error in the interpretation of the second paragraph of Article 340 TFEU in relation to whether the damage sustained by the appellant is ‘certain’ and, accordingly: