Language of document : ECLI:EU:T:1998:22


4 February 1998 (1)

(Action for annulment — Compensation payable to milk producers — Regulation(EEC) No 2187/93 — Offer of compensation — Acts of national authorities —Control — Competence — Action for damages — Admissibility)

In Case T-93/95,

Bernard Laga, residing at Grisolles (France), represented by Jean-François LePetit, of the Paris Bar, with an address for service in Luxembourg at the Chambersof Aloyse May, 31 Grand-Rue,



Commission of the European Communities, represented by Gérard Rozet, LegalAdviser, acting as Agent, with an address for service in Luxembourg at the officeof Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,


supported by

French Republic, represented initially by Catherine de Salins, Assistant Director inthe Legal Affairs Directorate of the Ministry of Foreign Affairs, and Frédéric

Pascal, Chargé de Mission in the same directorate, and subsequently by KareenRispail-Bellanger, Assistant Director in the same Directorate, and Mr Pascal, actingas Agents, with an address for service in Luxembourg at the French Embassy,8b Boulevard Joseph II,


APPLICATION, first, for annulment of the decision of the Office NationalInterprofessionnel du Lait et des Produits Laitiers of 20 January 1995 finding theapplicant ineligible for compensation under Council Regulation (EEC) No 2187/93of 22 July 1993 providing for an offer of compensation to certain producers of milkand milk products temporarily prevented from carrying on their trade (OJ 1993L 196, p. 6) and, second, for an order requiring the Commission to make good theloss suffered as a result of that decision,



composed of: A. Saggio, President, V. Tiili and R.M. Moura Ramos, Judges,

Registrar: J. Palacio González, Administrator,

having regard to the written procedure and further to the hearing on 21 October1997,

gives the following


Facts and legislation

    The applicant, a milk producer, operates his holding within the framework of anagricultural cooperative formed with Mr Landuyt. Pursuant to Council Regulation(EEC) No 1078/77 of 17 May 1977 introducing a system of premiums for the non-marketing of milk and milk products and for the conversion of dairy herds (OJ1977 L 131, p. 1), he entered into a non-marketing undertaking which expired on1 July 1985.

    Meanwhile, on 31 March 1984, the Council had enacted Regulation (EEC)No 857/84 adopting general rules for the application of the levy referred to inArticle 5c of Regulation (EEC) No 804/68 in the milk and milk products sector (OJ

1984 L 90, p. 13). That levy was payable by producers who exceeded a referencequantity fixed on the basis of milk production delivered during a reference year.

    Since Regulation No 857/84 did not originally provide specifically for the allocationof a reference quantity to producers who, like the applicant, had entered into anon-marketing undertaking under Regulation No 1078/77 and had thus deliveredno milk during the reference year, it was declared partially invalid by twojudgments delivered by the Court of Justice on 28 April 1988 in Case 120/86 Mulderv Minister van Landbouw en Visserij [1988] ECR 2321 and Case 170/86 von Deetzenv Hauptzollamt Hamburg-Jonas [1988] ECR 2355.

    Following those judgments, the Council adopted Regulation (EEC) No 764/89 of20 March 1989 (OJ 1989 L 84, p. 2) and, subsequently, Regulation (EEC)No 1639/91 of 13 June 1991 (OJ 1991 L 150, p. 35), both of which amendedRegulation No 857/84. Those amending regulations provided for the allocation ofa 'special‘ reference quantity to producers who had delivered no milk during thereference year. That reference quantity was initially granted on a provisional basisand subsequently became definitive following verification of compliance with certainconditions.

    By judgment of the Court of Justice of 19 May 1992 in Joined Cases C-104/89 andC-37/90 Mulder v Council and Commission [1992] ECR I-3061, the Community wasordered to make good the damage suffered by the applicants as a result of theapplication of Regulation No 857/84.

    Following that judgment, the Council adopted Regulation (EEC) No 2187/93 of22 July 1993 providing for an offer of compensation to certain producers of milkand milk products temporarily prevented from carrying on their trade (OJ 1993L 196, p. 6).

    Article 1 of that regulation provides for the grant of compensation to thoseproducers who have suffered loss as a result of being prevented by an undertakinggiven pursuant to Regulation No 1078/77 from delivering or selling milk during thereference year.

    Article 2 of Regulation No 2187/93 provides that an application for compensationis to be deemed eligible if it is submitted by a producer who has been allocated adefinitive special reference quantity pursuant to Regulation No 764/89 orRegulation No 1639/91.

    According to Article 14 of that regulation, an offer of compensation is to be madeto the producers concerned by the competent national authority in the name andon behalf of the Council and the Commission.

    A provisional special reference quantity was allocated to the applicant by order ofthe Prefect of the Département of Aisne of 31 August 1989. By prefectorial orderof 8 November 1991, that special reference quantity became definitive with effectfrom 30 March 1991.

    On 10 and 11 March 1994 the Office National Interprofessionnel du Lait et desProduits Laitiers (National Joint-Trade Dairy Office, hereinafter 'Onilait‘) carriedout a check on the applicant's holding. It reached the conclusion that the applicanthad not personally resumed milk production, contrary to Article 3a(3) ofRegulation No 857/84.

    By letter of 20 January 1995 the Director of Onilait informed the applicant that thespecial reference quantity allocated to him could not be regarded as definitive andthat, without prejudice to the cancellation of that reference quantity, of which hewould be given formal notice at a later date, Onilait was therefore not in a positionto pay the compensation provided for by Regulation No 2187/93.

    On 6 March 1995 the Director of Onilait adopted a decision cancelling thedefinitive special reference quantity which had been allocated to the applicant.

Procedure and forms of order sought by the parties

    By application lodged at the Court of First Instance on 17 March 1995 theapplicant applied pursuant to Articles 173 and 178 and the second paragraph ofArticle 215 of the EC Treaty for annulment of the decision contained in the letterfrom the Director of Onilait of 20 January 1995 and for an order requiring Onilaitto pay the compensation provided for by Regulation No 2187/93, together withinterest at the rate of 8% from 19 May 1992, FF 50 000 in respect of non-recoverable expenses and all the costs. That application was directed againstOnilait in its capacity as 'agent of the European institutions, in particular of theCommission‘. In response to a letter from the Court Registry of the same date,the applicant sent to the Court an amended version of the application, naming theCommission as defendant, which was received on 30 March 1995.

    By document lodged at the Court of First Instance on 9 June 1995 the Commissionraised an objection of inadmissibility, to which the applicant replied on 28 August1995.

    On 10 October 1995 the French Republic applied for leave to intervene in supportof the form of order sought by the Commission.

    By order of 29 November 1995 the President of the First Chamber of the Court ofFirst Instance granted that application.

    By order of the same date the Court ruled that the decision on the objection ofinadmissibility raised by the Commission be reserved for the final judgment.

    The intervener submitted its observations on 9 April 1996.

    The written procedure closed on 31 May 1996 with the lodging of the rejoinder.

    The parties presented oral argument and answered questions put to them by theCourt at the hearing on 21 October 1997.

    The applicant claims in his application that the Court should:

—    annul the decision contained in the letter from the Director of Onilait of20 January 1995;

—    order the Commission to pay the compensation provided for by RegulationNo 2187/93 together with interest at 8% per annum from 19 May 1992;

—    order the Commission to pay FF 50 000 in respect of non-recoverableexpenses;

—    order the Commission to pay the costs.

    In his reply he maintains his claims and asks that, in consequence, Onilait beordered to make him an offer of compensation pursuant to Articles 10 and 14 ofRegulation No 2187/93. In the alternative, he claims that he should be paidcompensation amounting to FF 1 220 634.30 pursuant to Article 215 of the Treaty.

    The Commission, as defendant, contends that the Court should:

—    declare the action for annulment inadmissible or, alternatively, unfounded;

—    declare the action for damages inadmissible or, alternatively, unfounded;

—    order the applicant to pay the costs.

    The French Government, as intervener, contends that the Court should grant theform of order sought by the Commission to the extent of declaring the actions forannulment and compensation unfounded.

The claim for annulment


Arguments of the parties

    In support of its plea of inadmissibility, the Commission first contends that theapplication does not fulfil the conditions laid down by Article 19 of the EC Statuteof the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the Courtof First Instance, inasmuch as it does not reveal the pleas in law on which it isbased. The Commission considers, therefore, that it is not in a position to defenditself.

    Second, it maintains that, if the action is to be interpreted as seeking annulmentof the check carried out by Onilait on the applicant's holding, or of the decisioncancelling the special reference quantity allocated to the applicant, it isinadmissible, since it is directed against acts carried out by the national authoritiesin the exercise of their ordinary and customary activities, which involve theimplementation of the Community rules applicable to milk producers.

    Contrary to the applicant's assertion, the acts in question are not mere preparatoryacts preceding the decision to refuse to make an offer. That argument fails to takeaccount of the Member States' extensive competence under the ordinary law in thematters of implementation of and verification of compliance with the Communityrules, which is confirmed in the present case by the circular from the Frenchauthorities setting out the arrangements for implementation of the rules relating tothe milk quota regime. It follows that the national courts constitute the naturalforum for determining the legality of such acts.

    In response to the first plea of inadmissibility raised by the Commission inopposition to the claim for annulment, the applicant maintains that the applicationcontains all the particulars required.

    As regards the second plea of inadmissibility, he states that what he is contestingis an act done by Onilait in its capacity as agent for the Community. Contrary tothe Commission's contention, the control operations undertaken by Onilait, albeitthat they are carried out within the framework of national law, are acts preparatoryto a decision taken by that administrative body in its capacity as agent for theCommunity. Consequently, the Court has jurisdiction to review such acts.

    The applicant submits that the three criteria governing the grant of compensationunder Regulation No 2187/93 are fulfilled in his case. It is not disputed that hesupplied milk to the dairy, that the milk was collected from the holding and thatthe holding possessed all the equipment needed for such production. Consequently, following the check carried out by it on 10 and 11 March 1994,Onilait could not object that the applicant had not personally resumed productionwithout thereby adding to Regulation No 2187/93 conditions which it does notcontain.

    Consequently, the check in question did not show that the applicant was in breachof his obligations, and the contested act is vitiated by a factual error.

Findings of the Court

    It is settled law that, according to the rules governing the powers conferredrespectively on the Community and on the Member States, it is for the MemberStates to ensure that Community regulations, particularly those concerning thecommon agricultural policy, are implemented within their territory (judgment of theCourt of Justice in Joined Cases 89/86 and 91/86 Étoile Commerciale and CNTA vCommission [1987] ECR 3005, paragraph 11; order of the Court of First Instancein Cases T-492/93 and T-492/93 R Nutral v Commission [1993] ECR II-1023,paragraph 26). Acts adopted by the national authorities in the context of theimplementation of that policy are normally subject, therefore, to review by thenational courts.

    In the present case, the compensation system established by Regulation No 2187/93confers on the national authorities the power to make offers of compensation toproducers in the name and on behalf of the Council and the Commission (see thetenth recital in the preamble to and Article 14 of the regulation).

    According to Article 2 of Regulation No 2187/93, only producers who have beenallocated a definitive special reference quantity are eligible to receive an offer ofcompensation. Under Regulation No 857/84, as amended by Regulation No 764/89and Regulation No 1639/91, the allocation of definitive special reference quantitiesis conditional on actual resumption of milk production.

    It follows, therefore, that the power conferred on the national authorities byRegulation No 2187/93 to make an offer of compensation to each producer in thename and on behalf of the Council and the Commission (see paragraph 9 above)is itself closely linked to actual resumption of milk production by the offeree.

    In the absence of such resumption, the essential prerequisite laid down byRegulation No 2187/93 for the making of an offer of compensation is not fulfilled.

    According to the applicable rules, it is for the national authority responsible formaking the offers of compensation to verify that production has been resumed (seeArticle 3a(3) of Regulation No 857/84, as added by Regulation No 764/89 andamended by Regulation No 1639/91).

    Accordingly, acts which establish that no such resumption has taken place andwhich consequently refuse the allocation of a definitive special reference quantityfall for review by the national courts (Case T-271/94 Branco v Commission [1996]ECR II-749, paragraph 53). Indeed, the applicant has in fact challenged before the

national court the act withdrawing the definitive special reference quantity and thefindings made during the on-the-spot check carried out on his holding.

    The applicant merely asserts that the contested act, that is to say, the refusal by thenational authorities to make an offer of compensation, results from an errorcommitted in the inspection carried out on his holding by those authorities. Thus,the only plea advanced by him as a ground for annulment is that relating to theverification of resumption of production.

    In those circumstances, the claim for annulment is in substance directed against thefindings made during the on-the-spot inspection carried out by the nationalauthorities. It therefore seeks to call in question the validity of a decision taken bythe national bodies responsible for implementing certain measures within theframework of the common agricultural policy (see, to the same effect, as regardsactions for damages, the judgment of the Court of Justice in Joined Cases 12/77,18/77 and 21/77 Debayser v Commission [1978] ECR 553, paragraph 25).

    It follows that this Court does not have jurisdiction to review the legality of the actagainst which the claim for annulment is in substance directed.

    Consequently, that claim is inadmissible.

The claim for damages


Arguments of the parties

    The Commission submits that the claim for damages contained in the applicationis inadmissible, since in reality it seeks to attain the same objective as that pursuedby the claim for annulment (Case T-514/93 Cobrecaf and Others v Commission[1995] ECR II-621). It maintains that the claim for damages is also inadmissiblebecause it is not supported by certain indispensable information. In particular, theapplication does not disclose the pleas in law relied on in support of that claim,with the result that the Commission is prevented from defending its interests. Evenafter indicating in the reply the amount of the damage alleged, the applicant doesnot formulate any complaint against the Commission.

    The applicant states, first, that if the claim for annulment is inadmissible this doesnot mean that the claim for damages is also inadmissible. Second, he contends thatthe application contains all the information required and that the Commissioncannot find fault with it in that respect, possessing as it does information of a moreconcrete nature, of which the applicant has no knowledge, particularly as to theamount of compensation to which he is entitled. In his reply, he sets out a

calculation of the compensation to which he claims to be entitled under RegulationNo 2187/93.

Findings of the Court

    The Court finds, as a preliminary point, that through his claim for damages theapplicant is applying for payment of the compensation which should, in his view,have formed the subject of the offer which Onilait refused to make. He seeks anorder requiring that authority to make him an offer of compensation in accordancewith Articles 10 and 14 of Regulation No 2187/93; in the alternative, he quantifieshis claim for reparation in terms of compensation calculated on the basis ofRegulation No 2187/93.

    As the Court has found above (paragraphs 37 to 40), the refusal to make theapplicant an offer of compensation attributable to the defendant under thecircumstances specified in Regulation No 2187/93 resulted from the outcome of thechecks carried out by the national authorities. Since the claim for damages is basedon an alleged error in the findings made in the course of those checks, the eventgiving rise to the loss for which the applicant claims reparation is an act adoptedby the national authorities in the exercise of their own powers. It follows that theconditions which must be satisfied for the matter to be brought before the Courtunder Article 178 and the second paragraph of Article 215 of the Treaty are notfulfilled. Those provisions confer jurisdiction on the Community judicature toaward compensation only for damage caused by the Community institutions or bytheir servants in the performance of their duties. Thus, damage caused by nationalauthorities cannot give rise to liability on the part of the Community and falls solelywithin the jurisdiction of the national courts, which will order compensation forsuch damage where appropriate (see, in particular, the judgment of the Court ofFirst Instance in Case T-571/93 Lefebvre and Others v Commission [1995]ECR II-2379, paragraph 65, together with the judgments of the Court of Justice inCase 12/79 Wagner v Commission [1979] ECR 3657, paragraph 10, and Case 175/84Krohn v Commission [1986] ECR 753, paragraph 18).

    Furthermore, according to settled case-law, even though an application forannulment and a claim for damages constitute two independent forms of action,and although the inadmissibility of an application for annulment does not inprinciple render inadmissible a claim for damages for the injury allegedly causedby the contested act, the fact that a claim for annulment is held to be inadmissiblerenders the claim for damages inadmissible where the action for damages is in factaimed at securing the withdrawal of an individual decision which has becomedefinitive and would, if upheld, have the effect of nullifying the legal effects of thatdecision (see, in particular, Cobrecaf and Others v Commission, cited above,paragraphs 58 and 59).

    In the present case the claim for damages is designed to obtain an order requiringthe defendant to pay the compensation refused by the contested decision. In effect,therefore, it seeks to achieve the very result which is precluded by that decision andwhich the applicant has attempted to bring about by means of his claim forannulment.

    In those circumstances, the claim for damages must be dismissed as inadmissible.

    The application for an order requiring the defendant to pay FF 50 000 in respectof 'non-recoverable expenses‘ is not supported by any facts or legal argument, asrequired by Article 44(1) of the Rules of Procedure, which would enable the Courtto give a decision on it. Consequently, it must also be declared inadmissible.


    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs if they have been applied for in the successful party'spleadings. Since the applicant's claims are inadmissible, he must be ordered to paythe costs, as applied for by the Commission.

    Pursuant to Article 87(4) of the Rules of Procedure, the French Republic, asintervener, must be ordered to bear its own costs.

On those grounds,



1.    Dismisses the application as inadmissible;

2.    Orders the applicant to pay the costs;

3.    Orders the intervener to bear its own costs.

Moura Ramos

Delivered in open court in Luxembourg on 4 February 1998.

H. Jung

A. Saggio



1: Language of the case: French.