61999B0124

1. Actions for damages - Limitation period - Starting point - Applicant considering, when it lodges its application, that it does not have all the evidence to show that the Community is liable - No effect

(EAEC Statute of the Court of Justice, Art. 44)

2. Actions for damages - Limitation period - Interruption - Conditions

(EC Treaty, Art. 173 (now, after amendment, Art. 230 EC) and Art. 175 (now Art. 232 EC); EAEC Treaty, Arts 146 and 148; EAEC Statute of the Court of Justice, Art. 44)

1. The case-law according to which the limitation period for actions for damages cannot begin to run until all the conditions governing the obligation to pay compensation have been satisfied seeks to establish the criterion that, if the liability of the Community has its origin in a legislative measure, the damage which is the subject-matter of a claim for compensation must have materialised. In that situation, therefore, the limitation period cannot begin to run until the harmful effects of that measure have occurred. Therefore, far from rejecting the decisive criterion, laid down in Article 44 of the EAEC Statute of the Court of Justice, of occurrence of the act giving rise to the damage, that case-law, in essence, merely defines the parameters of that criterion in a situation in which an action for compensation is brought in respect of damage which the applicants may suffer as a consequence of the implementation of a legislative measure adopted at Community level. In any event, the fact that an applicant may have considered, when it sent its request for compensation, that it did not yet have all the evidence it needed to prove to the requisite legal standard in judicial proceedings that the Community was liable could not, as such, prevent the limitation period from running. If that were the case, a confusion would arise between the procedural criterion relating to the commencement of the limitation period and the finding that the conditions for liability were satisfied, which can ultimately be made only by the court before which the matter has been brought for final adjudication on its substance.

( see paras 23-24 )

2. Under Article 44 of the EAEC Statute of the Court of Justice, the limitation period in respect of an action for damages against the Community is interrupted either by the application made to the Community Court, or by a preliminary request addressed to the relevant institution, it being however understood that, in the latter case, interruption only occurs if the request is followed by an application within the time-limits determined by reference to Article 173 of the Treaty (now, after amendment, Article 230 EC) or Article 175 thereof (now Article 232 EC), which correspond to Articles 146 and 148 of the EAEC Treaty.

( see para. 25 )

In Case T-124/99,

Autosalone Ispra dei Fratelli Rossi Snc, established in Ispra, Italy, represented by F. Venuti, lawyer, with an address for service in Luxembourg,

applicant,

v

European Atomic Energy Community, represented by the Commission of the European Communities, represented in turn by H. Speyart and P. Stancanelli, acting as Agents, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that the European Atomic Energy Community is liable for the damage suffered by the applicant after the flooding which occurred in Ispra during the night of 1 to 2 June 1992 and, consequently, for an order requiring the Community to pay compensation for the said damage,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Second Chamber),

composed of: A.W.H. Meij, President, A. Potocki and J. Pirrung, Judges,

Registrar: H. Jung,

makes the following

Order

Legislative background

1 Article 44 of the Statute of the Court of Justice of the European Atomic Energy Community (hereinafter the EAEC Statute), which is applicable to the proceedings before the Court of First Instance pursuant to Article 47 of the Statute, provides:

Proceedings against the Community in matters arising from non-contractual liability shall be barred after a period of five years from the occurrence of the event giving rise thereto. The period of limitation shall be interrupted if proceedings are instituted before the Court or if prior to such proceedings an application is made by the aggrieved party to the relevant institution of the Community. In the latter event the proceedings must be instituted within the period of two months provided for in Article 146; the provisions of the second paragraph of Article 148 shall apply where appropriate.

Facts

2 During the night of 1 to 2 June 1992, the municipality of Ispra suffered a violent storm causing extensive flooding which affected, in particular, the property of the applicant.

3 The applicant's property was flooded after a drain overflowed in the part of the town of Ispra in which the property is situated. After running alongside the applicant's property, the drain becomes open for a short stretch before entering a tunnel passing underneath a railway line and then running through a pipe-line under the land belonging to the EAEC Joint Research Centre (hereinafter the JRC).

4 The flooding caused the applicant significant damage, which was assessed by the loss adjuster, Mr Galleri, in a report dated 14 October 1993 commissioned by the applicant, to be in the amount of ITL 1 245 000 000.

5 By registered letter of 17 June 1992, the applicant requested compensation from the JRC for the damage suffered by reason of the fact that the main drain, whose pipes pass under the Centre's land, was unable to evacuate the waste water and rainwater because the Centre had placed a grill at the opening of the drain, which was blocked by waste material and rubbish carried by the flowing water.

6 On 20 July 1992, the JRC replied that its staff were carrying out the necessary investigations to determine whether liability had been incurred as a consequence of the flooding in question.

7 On 22 February 1993, the JRC's insurance company, the Cigna Insurance Company of Europe SA, brought an action before the Tribunale di Varese for an order that a technical expert's report be obtained, drawing up an inventory and statement of state of repair, and describing the quality and condition of the property damaged by the flooding, in the light of the fact that the issue of the JRC's liability had been raised by its neighbours. By order of the Tribunale di Varese of 27 March 1993, Mr Speroni was appointed to prepare the expert's report, which was to be submitted within 90 days.

8 The expert's report drawn up by Mr Speroni was lodged at the Registry of the Tribunale di Varese on 10 May 1995. In the report it is stated, in particular:

From information gathered on the premises in question, it appears that, at the time of the flooding, the inspection well down-stream of the railway line had a solid metal grille which held back various materials carried along by the water (planks, trunks, etc.) thus obstructing the flow of water and causing flooding upstream.

9 By document dated 28 February 1996, the applicant brought an action for compensation for damage against the Commission under national law before the Tribunale di Varese. That case, in which the Commission contended that the action before the national court was inadmissible, was still pending when the Commission lodged its defence in the present case.

Procedure and forms of order sought by the parties

10 The applicant brought this action by application lodged at the Court Registry on 21 May 1999.

11 After the defence had been lodged, the Court of First Instance asked the parties to concentrate their arguments on the problems of admissibility raised in the defence and, in particular, to specify the actions which they considered had interrupted the five-year limitation period laid down in Article 44 of the EAEC Statute.

12 The applicant claims that the Court should:

- declare that the European Atomic Energy Community is liable for the damage suffered;

- therefore, order the Community to pay to the applicant the sum of ITL 1 245 000 000, together with monetary revaluation and interest on that sum;

- rule that the forthcoming judgment shall be provisionally enforceable;

- order the European Atomic Energy Community to pay the costs of the proceedings.

13 The Commission contends that the Court should:

- dismiss the application;

- order the applicant to pay the costs.

Admissibility

14 Under Article 111 of the Rules of Procedure of the Court of First Instance, where the action is manifestly inadmissible, the Court of First Instance may, by reasoned order, without taking further steps in the proceedings, give a decision on the action. The Court considers that, in the light of all the documents submitted by the parties, in particular as worded following the Court's request for further particulars, it is in a position to rule on admissibility without opening the oral procedure.

Arguments of the parties

15 The Commission maintains, in essence, that the application is inadmissible since the action on which it is based is time-barred. Article 44 of the EAEC Statute establishes, for proceedings in matters arising from non-contractual liability, a limitation period of five years from the occurrence of the event giving rise to that liability (Joined cases 256/80, 257/80, 265/80, 267/80 and 5/81 Birra Wührer and Others v Council and Commission [1982] ECR 85, paragraph 10). In the present case, therefore, the limitation period started to run from 2 June 1992.

16 The Commission states that the applicant's letter of 17 June 1992 invalidates the argument that the applicant had been aware of the damage only since 10 May 1995. In that letter it had, in fact, clearly stated the presumed cause of the damage.The Commission also points out that the action brought by the applicant under national law does not have suspensory effect.

17 The applicant, for its part, states, first of all, that it became aware of the causes of the damage it had suffered only after Mr Speroni had submitted the expert's report on 10 May 1995. Before that date, it could not have known the events giving rise to the damage or the causal link between the two since, on the one hand, it had waited, in all good faith, for the result of the expert's report requested by the defendant and, on the other, it had not had access to the JRC's facilities.

18 The applicant also points out, in that regard, that the case-law invoked by the defendant specifies that the period of limitation which applies to proceedings in matters arising from the non-contractual liability of the Community therefore cannot begin before all the requirements governing an obligation to provide compensation for damage are satisfied (Birra Wührer and Others v Council and Commission, cited above, paragraph 10). The Community incurs non-contractual liability if three factors are present: an unlawful event, damage and a causal link between the two. Liability is not incurred, therefore, solely by virtue of the fact that an unlawful event has taken place. Nor, consequently, does the limitation period begin to run merely because that event has occurred.

19 The applicant maintains, finally, that the JRC's letter of 20 July 1992 and the proceedings for obtaining an expert's report initiated on 10 March 1993 by the Cigna Insurance Company of Europe SA and concluded on 10 May 1995 when Mr Speroni submitted his report, should be regarded as acts which interrupted the limitation period.

Findings of the Court

20 As is apparent from Article 215 of the EC Treaty (now Article 288 EC) and Article 43 of the EC Statute of the Court of Justice, whose wording is identical to that of Article 44 of the EAEC Statute, the involvement of the non-contractual liability of the Community and the assertion of the right to compensation for damage suffered depend on the satisfaction of a number of requirements relating to the existence of an unlawful measure adopted by the Community institutions, actual damage and a causal relationship between them (Birra Wührer and Others v Council and Commission, cited above, paragraph 9).

21 It should also be pointed out that, under Article 44 of the EAEC Statute of the Court of Justice, proceedings against the Community in matters arising from non-contractual liability are to be barred after a period of five years from the occurrence of the event giving rise thereto.

22 In the present case, the flooding which caused the damage suffered by the applicant occurred during the night of 1 to 2 June 1992.

23 It should next be observed that the case-law cited by the applicant, according to which the limitation period for actions for damages cannot begin to run until all the conditions governing the obligation to pay compensation have been satisfied, seeks to establish the criterion that, if the liability of the Community has its origin in a legislative measure, the damage which is the subject-matter of a claim for compensation must have materialised. In that situation, therefore, the limitation period cannot begin to run until the harmful effects of that measure have occurred. Therefore, far from rejecting the decisive criterion, laid down in Article 44 of the EAEC Statute, of occurrence of the act giving rise to the damage, which, in this case, is the flooding of 1 to 2 June, that case-law, in essence, merely defines the parameters of that criterion in a situation, substantially different from the circumstances of this case, in which an action for compensation is brought in respect of damage which the applicants may suffer as a consequence of the implementation of a legislative measure adopted at Community level.

24 Even assuming that that case-law had been applicable in the present case, it should be pointed out, first of all, that it is not disputed that the flooding which caused the damage suffered by the applicant took place during the night of 1 to 2 June 1992 and that the damage materialised immediately. It should next be noted that the letter dated 17 June 1992 sent by the applicant to the JRC shows that the applicant already considered that it already had, at that time, sufficient knowledge of the facts appertaining to the three conditions for establishing liability to bring a claim for compensation against the Community. The fact that the applicant may have considered, when it sent the letter, that it did not yet have all the evidence it needed to prove to the requisite legal standard in judicial proceedings that the Community was liable could not, as such, prevent the limitation period from running. If that were the case, a confusion would arise between the procedural criterion relating to the commencement of the limitation period and the finding that the conditions for liability were satisfied, which can ultimately be made only by the court before which the matter has been brought for final adjudication on its substance.

25 So far as concerns the applicant's argument regarding the interruption of the limitation period, it should be noted that, under Article 44 of the EAEC Statute, that period is interrupted either by the application made to the Community Court, or by a preliminary request addressed to the relevant institution, it being however understood that, in the latter case, interruption only occurs if the request is followed by an application within the time-limits determined by reference to Article 173 of the EC Treaty (now, after amendment, Article 230 EC) or Article 175 thereof (now Article 232 EC), which correspond to Articles 146 and 148 of the EAEC Treaty, to which the abovementioned article of the EAEC Statute refers (Case 11/72 Giordano v Commission [1973] ECR 417, paragraph 6, and order in Case T-106/98 Fratelli Murri v Commission [1999] ECR II-2553, paragraph 29).

26 The letters and procedures on which the applicant relies clearly cannot be regarded as an application made to the Court of Justice or the Court of First Instance. Moreover, none of the documents sent to the Commission has been followed by an application within the prescribed time-limit. Therefore, the limitation period which started to run on 2 June 1992 has not, at any time, been interrupted within the meaning of Article 44 of the EAEC Statute (see, in support of this, order in Fratelli Murri v Commission, cited above, paragraph 29).

27 Furthermore, it should be pointed out that, in the present case, the applicant could still have brought an action for damages, within the time-limit prescribed by Article 44 of the EAEC Statute, after Mr Speroni's report had been received on 10 May 1995 but at the time did not consider it expedient to do so and chose to bring legal proceedings in this connection before the national courts.

28 The foregoing considerations, taken as a whole, show that the present action, which was brought on 21 May 1999, was commenced a considerable time after the expiry of the limitation period, which ended on 2 June 1997. Consequently, the application must be dismissed as manifestly inadmissible.

Costs

29 Under Article 87(2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicant has been unsuccessful and the Commission has asked for costs, the applicant must be ordered to bear its own costs and pay those incurred by the Commission.

On those grounds,

THE COURT OF FIRST INSTANCE (Second Chamber)

hereby orders:

1. The application is dismissed as manifestly inadmissible.

2. The applicant shall bear its own costs and pay those incurred by the Commission.