61999B0361

Non-contractual liability - Conditions - Unlawfulness - Fact that the Commission or the European Investment Bank did not initiate infringement proceedings - Not unlawful - Claim for damages - Manifestly inadmissible

(Arts 226 EC, 237(a) EC and 288 EC)

$$The fact that the Commission, and by analogy the European Investment Bank, has not instituted infringment proceedings is not unlawful, and thus it cannot give rise to non-contractual liability on the part of either the Commission or the Bank. Accordingly, claims for compensation which are really seeking to complain that the Commission and the EIB have failed to institute infringement proceedings against a Member State are manifestly inadmissible.

( see para. 13 )

In Case T-361/99,

Karl L. Meyer, residing at Uturoa (island of Raiatea, French Polynesia), represented by J.-D. des Arcis, of the Papeete Bar, with an address for service in Luxembourg at the offices of H. Pakowski, Ambassador of the Federal Republic of Germany, 20-22 Avenue Émile Reuter,

applicant,

v

Commission of the European Communities, represented by B. Martenczuk and X. Lewis, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, of that service, Wagner Centre, Kirchberg,

and

European Investment Bank, represented by L. La Marca, Principal Legal Adviser in the Legal Affairs Directorate, acting as Agent, with an address for service in Luxembourg at the headquarters of the European Investment Bank, 100 Boulevard Konrad Adenauer,

defendants,

APPLICATION for compensation for the damage allegedly suffered by the applicant as a result of the failure on the part of the Commission and the European Investment Bank to require the local authorities in French Polynesia and the bank Socredo to comply with Community law and to apply Council Decisions 86/283/EEC of 30 June 1986 and 91/482/EEC of 25 July 1991 on the association of the overseas countries and territories with the European Economic Community (OJ 1986 L 175, p. 1, and OJ 1991 L 263, p. 1, respectively),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (First Chamber),

composed of: B. Vesterdorf, President, M. Vilaras and N.J. Forwood, Judges,

Registrar: H. Jung,

makes the following

Order

Facts and procedure

1 The applicant farms a tropical fruit plantation on the island of Raiatea in French Polynesia. Between 1985 and 1989 he took out several loans from a local bank, Socredo, in order to finance his activities; the provision of those loans gave rise to two disputes which were settled by two judgments of the Commercial Chamber of the Cour d'Appel (Court of Appeal), Papeete, (Tahiti, France) of 12 May 1999. In the first case the Cour d'Appel, Papeete, ordered the applicant to pay Socredo various amounts owing in respect of the contested loans. In the second case the Cour d'Appel found that Socredo was guilty of professional negligence and ordered it to pay the applicant damages.

2 Those were the circumstances in which the applicant, by application lodged at the Registry of the Court of First Instance on 30 December 1999, brought this action. By a separate document lodged at the Registry of the Court of First Instance on the same date, the applicant made an application under Article 242 EC for a stay of the execution of the judgment of the Cour d'Appel, Papeete, in the first case, and suspension of the operation of the subsequent order of attachment of real property of 27 August 1999.

3 By documents received at the Registry of the Court of First Instance on 28 January and 7 February 2000, respectively, the European Investment Bank (EIB) and the Commission raised an objection of inadmissibility pursuant to Article 114(1) of the Rules of Procedure of the Court of First Instance. On 28 February 2000, the applicant lodged at the Court Registry his observations on that objection.

Forms of order sought

4 The applicant claims that the Court should:

- accept all his claims and declare them well-founded;

- rule on whether the association decisions form part of Community law and take precedence over conflicting national provisions;

- rule on whether the various rights under Community law of individuals who are Community nationals apply in French Polynesia;

- rule on whether monitoring and supervision of the proper application of association decisions with regard to overseas countries and territories are the exclusive responsibility of the Commission or the joint responsibility of the Commission and the EIB;

only if the procedure so permits, in the light of the case-law of the Court of Justice and the Court of First Instance (Case 43/72 Merkur v Commission [1973] ECR 1055; Case 281/82 Unifrex v Council and Commission [1984] ECR 1969; Case 81/86 De Boer Buizen v Council and Commission [1987] ECR 3677; and Case T-167/94 Nölle v Council and Commission [1995] ECR II-2589),

- give its opinion on Socredo's liability, as regards the proper application of Community association decisions and compliance with the conditions regarding loans to private investors under those decisions, by virtue of its relationship with the EIB and its obligations under European banking rules, namely Council Directive 77/780/EEC of 12 December 1977 on the coordination of the laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions (OJ 1977 L 322, p. 30), and subsequent measures;

- hold that the Commission and/or the EIB have been guilty of manifest negligence in failing for 15 years or more to require the local authorities and Socredo to apply and make known association decisions of the Council and to comply with the Community law applicable in French Polynesia;

- in addition, order the Commission to pay him the sum of FRF 25 000 in respect of irrecoverable expenses which he has had to incur to protect his interests.

5 The Commission contends that the Court should:

- dismiss the action as inadmissible;

- order the applicant to pay the costs.

6 The EIB contends that the Court should:

- dismiss the action as inadmissible;

- order the applicant to pay the costs.

7 In his observations on the objection of inadmissibility, the applicant claims that the Court should:

- uphold all his claims;

- reject the plea of inadmissibility;

- adjudicate on the merits of the case.

Law

8 First, it should be noted that the application is vague and it is not possible to identify from it clearly and precisely the unlawful conduct of which the applicant claims the Commission and the EIB are guilty. However, the Court considers that the action may be understood as seeking, first, to obtain advisory opinions from the Court on various matters and, second, to establish the non-contractual liability of the Commission and the EIB. The applicant is also seeking from the Commission payment of FRF 25 000 to cover expenses which he has allegedly incurred in protecting his interests. It is necessary to ascertain whether the applicant's claims are in any way admissible before deciding whether the application meets the minimum requirements for ensuring the rights of the defence.

9 It should be borne in mind that the Court of First Instance can act only within the limits laid down in the Treaty and that, on that basis, it does not have jurisdiction to give advisory opinions. Thus, in so far as the applicant is seeking such opinions, the application must be regarded as manifestly inadmissible.

10 The claims by which the applicant seeks the opinion of the Court on the non-contractual liability of the Commission and the EIB should be interpreted as meaning that the applicant is in fact seeking a declaration that the Community has incurred non-contractual liability under Article 288 EC. It should be noted in that regard that the Court of Justice recognised in Case C-370/89 SGEEM and Etroy v EIB [1992] ECR I-6211 that the Community judicature has jurisdiction to rule in an action for compensation against the EIB.

11 As regards, first, the liability of the Commission, the applicant considers in substance that it is clear from Article 226 EC that the Commission is required to deliver a reasoned opinion where a Member State has failed to fulfil an obligation under the Treaty. The applicant states that in the present case the Commission has failed to comply with that obligation and that the Commission's inaction confers on him a right to compensation. As regards, secondly, the liability of the EIB, the applicant considers in substance that the EIB was required to institute infringement proceedings before the Court of Justice against the Member State concerned so that the Court could review the legality of Socredo's conduct.

12 It should be noted at the outset that Article 237(a) EC refers expressly to Article 226 EC in respect of the EIB's powers relating to infringement proceedings. It is therefore appropriate to apply vis-à-vis the EIB the relevant case-law on this subject concerning the Commission.

13 According to settled case-law, the fact that the Commission, and by analogy the EIB, has not instituted infringement proceedings is not unlawful, and thus it cannot give rise to non-contractual liability on the part of either the Commission or the EIB (Order of the Court of First Instance of 3 July 1997 in Case T-201/96 Smanor and Others v Commission [1997] ECR II-1081, paragraph 30). Accordingly, claims for compensation which are really seeking to complain that the Commission and the EIB have failed to institute infringement proceedings against a Member State are manifestly inadmissible.

14 As regards the sum of FRF 25 000 sought by the applicant in respect of the expenses he has allegedly incurred in order to protect his interests, it should be noted that this does not appear to be a claim for costs in the present case. At any event, since that claim is based only on the alleged inaction of the EIB and the Commission, it should also be rejected as manifestly inadmissible.

15 In the light of the foregoing, the present action must be dismissed as manifestly inadmissible without its being necessary to adjudicate on whether the application complies with procedural requirements.

Costs

16 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicant has been unsuccessful, he must be ordered to pay the costs.

On those grounds,

THE COURT OF FIRST INSTANCE (First Chamber)

hereby orders:

1. The action is dismissed as manifestly inadmissible.

2. The applicant shall bear his own costs and shall pay those of the European Investment Bank and the Commission.