JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

17 February 1998 (1)

(Regulation (EEC) No 2377/90 — Inclusion of somatosalm in the list ofsubstances not subject to maximum residue limits — Action for failure to act —Action for damages)

In Case T-105/96,

Pharos SA, a company incorporated under Belgian law, having its registered officein Seraing (Belgium), represented by Alexandre Vandencasteele, of the BrusselsBar, with an address for service in Luxembourg at the Chambers of Ernest Arendt,8-10 Rue Mathias Hardt,

applicant,

v

Commission of the European Communities, represented by Fernando Castillo dela Torre and Michel Nolin, of its Legal Service, acting as Agents, with an addressfor service in Luxembourg at the office of Carlos Gómez de la Cruz, of its LegalService, Wagner Centre, Kirchberg,

defendant,

APPLICATION, first, under Article 175 of the EC Treaty, for a declaration thatthe Commission unlawfully failed to pursue the procedure for including somatosalmproduced by the applicant in the list of substances not subject to maximum residue

levels in Annex II to Council Regulation (EEC) No 2377/90 of 26 June 1990 layingdown a Community procedure for the establishment of maximum residue limits ofveterinary medicinal products in foodstuffs of animal origin (OJ 1990 L 224, p. 1),and, second, under Articles 178 and 215 (second paragraph) of the Treaty for anorder that the Commission make good the damage which the applicant considersitself to have suffered through such inaction,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of: B. Vesterdorf, President, C.P. Briët and A. Potocki, Judges,

Registrar: B. Pastor, Principal Administrator,

having regard to the written procedure and further to the hearing on 14 October1997,

gives the following

Judgment

The regulation in question

1.

    On 26 June 1990 the Council adopted Regulation (EEC) No 2377/90 laying downa Community procedure for the establishment of maximum residue limits ofveterinary medicinal products in foodstuffs of animal origin (OJ 1990 L 224, p. 1,hereinafter 'the Regulation‘ or 'Regulation No 2377/90‘).

2.

    Under the Regulation the Commission is to establish a maximum residue limit(hereinafter 'MRL‘). Article 1(1)(b) of the Regulation defines the limit as themaximum concentration of residue resulting from the use of a veterinary medicinalproduct which may be accepted by the Community to be legally permitted orrecognised as acceptable 'in or on a food‘.

3.

    The Regulation makes provision for four annexes in which a pharmacologicallyactive substance intended for use in veterinary medicines to be administered to'food-producing animals‘ may be included:

—    Annex I, reserved for substances for which an MRL may be establishedfollowing assessment of the risks which the substance presents for humanhealth;

—    Annex II, reserved for substances which are not subject to an MRL;

—    Annex III, reserved for substances for which it is not possible to establishan MRL definitively, but which, without compromising human health, maybe subject to a provisional MRL for a limited period which is dictated bythe time required to carry out appropriate scientific studies and which canonly be extended once;

—    Annex IV, reserved for substances for which an MRL cannot be establishedbecause such substances constitute a threat to consumer health in anyamount.

4.

    Under Article 6(1) of the Regulation, in order to obtain the inclusion in Annex I,II, or III of a new pharmacologically active substance, the person responsible formarketing the product concerned is to submit an application to the Commissioncontaining certain information and particulars.

5.

    According to Article 6(2), after verifying within a period of 30 days that theapplication is submitted in correct form, the Commission is forthwith to submit theapplication for examination by the Committee for Veterinary Medicinal Products(hereinafter 'CVMP‘).

6.

    Article 6(3) provides that:

'[W]ithin 120 days of referral of the application to the [CVMP], and having regardto the observations formulated by the members of the Committee, the Commissionshall prepare a draft of the measures to be taken. If the information submitted bythe person responsible for marketing is insufficient to enable such a draft to beprepared, that person will be requested to provide the Committee with additionalinformation for examination. ...‘

7.

    Under Article 6(5), within a further 60 days the Commission is to submit the draftmeasures to the Committee for the Adaptation to Technical Progress of theDirectives on Veterinary Medicinal Products (hereinafter 'the AdaptationCommittee‘).

8.

    Under Article 8(2) the Adaptation Committee is to deliver its opinion on the draftmeasures within a time-limit set by its chairman, having regard to the urgency ofthe matter. It is to act by a qualified majority, the votes of the Member Statesbeing weighted as provided for in Article 148(2) of the Treaty.

9.

    Article 8(3) provides as follows:

'(a)    The Commission shall adopt the measures envisaged where they are inaccordance with the opinion of the [Adaptation] Committee.

(b)    Where the measures envisaged are not in accordance with the opinion ofthe Committee, or if no opinion is adopted, the Commission shall withoutdelay propose to the Council the measures to be adopted. The Council shallact by a qualified majority.

(c)    If, after a period of three months of the proposal being referred to it, theCouncil has not acted, the proposed measures shall be adopted by theCommission, unless the Council has voted against them by a simplemajority.‘

Facts underlying the dispute

10.

    The applicant is a company specialising in bio-technology. It is active inter alia inthe pharmaceuticals industry.

11.

    In 1994 its pharmaceutical research resulted in the development of a veterinaryproduct called 'Smoltine‘ designed to help salmon make the transition from freshwater to sea water. The pharmacologically active substance in Smoltine issomatosalm, a substance belonging to the somatotropin family.

12.

    On 17 October 1994 the applicant submitted an application for the inclusion ofsomatosalm in Annex II to Regulation No 2377/90 (hereinafter 'Annex II‘).

13.

    Having verified that the application had been submitted in correct form, theCommission referred the application for examination to the CVMP, pursuant toArticle 6(2) of Regulation No 2377/90.

14.

    By letter of 13 April 1995 it informed the applicant that the CVMP hadrecommended that somatosalm be included in Annex II. It added that the draftmeasures to be taken, drawn up on the basis of the CVMP's proposal, would besent to the Adaptation Committee for adoption, in accordance with Article 8 ofRegulation No 2377/90.

15.

    By letter of 31 August 1995 it informed the applicant that it had referred to theAdaptation Committee a draft regulation including somatosalm in Annex II, butthat, at its meeting, the Committee deleted somatosalm from the draft.

16.

    On 16 October 1995 it referred to the Adaptation Committee a new draftregulation including somatosalm in Annex II. However, that draft did not receivethe assent of a qualified majority of the Adaptation Committee to the measuresproposed.

17.

    Four Member States opposed the measures, taking the view that the moratoriumon Bovine Somatotropin (hereinafter 'BST‘), imposed by Council Decision90/218/EEC of 25 April 1990 concerning the administration of Bovine Somatotropin(BST) (OJ 1990 L 116, p. 27), as last amended by Council Decision 94/936/EC of

20 December 1994 (OJ 1994 L 366, p. 19), would be undermined indirectly ifsomatosalm, which is also a somatotropin, were included in one of the annexes toRegulation No 2377/90. Moreover, six Member States abstained from the vote inquestion.

18.

    On 6 March 1996, the applicant sent a registered letter to the Commission,formally calling upon it to act by taking 'the necessary steps, in accordance withArticle 175 of the Treaty, to ensure that the procedure for including somatosalmin ... Annex II ... is completed as soon as possible‘.

19.

    On 23 April 1996 the Commission sent a letter to the CVMP informing it of itsdecision to stay the procedure for including somatosalm in Annex II until furtherscientific information had been obtained. It explained that there had been a certainamount of opposition to somatosalm in the Adaptation Committee because thesubstance could be used to boost growth. It therefore asked the CVMP for afurther opinion as to whether abuses of the product were possible.

20.

    By letter of 14 May 1996 the Commission informed the applicant that it haddecided to ask the CVMP for that further opinion before continuing with theprocedure for including somatosalm in one of the annexes to Regulation No2377/90.

21.

    By letter of 27 June 1996 the CVMP stated in reply to the request for a furtheropinion that, following a specific study, it had concluded that the risk thatsomatosalm might be abused to boost growth could be considered to be non-existent.

22.

    On 25 September 1996, following that reply, the Commission sent the Council anew proposal for a regulation including somatosalm in Annex II.

23.

    The Council did not act on that proposal within the period of three monthsprovided for by Article 8(3)(c) of the Regulation.

Procedure and forms of order sought

24.

    By application lodged at the Registry of the Court of First Instance on 8 July 1996the applicant brought this action.

25.

    On hearing the report of the Judge-Rapporteur, the Court of First Instance (ThirdChamber) decided to open the oral procedure without any preparatory inquiry.

26.

    Oral argument was heard from the representatives of the parties at the hearing on14 October 1997, when they replied to questions put by the Court.

27.

    The applicant claims that the Court should:

—    declare that, in breach of its obligations, the Commission failed to pursuethe procedure for the inclusion of somatosalm produced by the applicant inthe list of substances not subject to an MRL in Annex II;

—    order the Commission to pay the applicant damages provisionally estimatedat BFR 512 million or, at least, and again provisionally, at BFR 353 million;

—    order the defendant to pay the costs.

28.

    The Commission contends that the Court should:

—    declare that there is no need to adjudicate on the application under Article175 of the Treaty;

—    order that evidence be heard from the shareholders who lent funds to theapplicant company;

—    dismiss the applicant's claim under Articles 175 and 215 (second paragraph)of the Treaty;

—    order the applicant to pay the costs.

On the application for a declaration of failure to act

Pleas in law and arguments of the parties

29.

    The applicant states that, on 17 October 1994, it submitted an application to theCommission for the inclusion of somatosalm in Annex II. It also states that, whenthe Commission referred draft measures including somatosalm in Annex II on 16October 1995 to the Adaptation Committee, that Committee did not give its assentto the planned measures.

30.

    The applicant refers to Article 8(3)(b) of Regulation No 2377/90, under whichwhere the measures envisaged are not in accordance with the opinion of theCommittee, or if no opinion is adopted, the Commission is to propose without delayto the Council the measures to be adopted.

31.

    When the application was lodged, on 8 July 1996, the Commission had not yetmade any such proposal to the Council. Accordingly, the Commission unlawfullyfailed to pursue the procedure for the inclusion of somatosalm in Annex II.Moreover, whilst it did, on 25 September 1996, finally submit a proposal for aregulation to the Council, it none the less failed to act for 11 months.

32.

    The applicant is not unaware that, on 23 April 1996, the Commission asked theCVMP for a further opinion on the possible use of somatosalm to boost growth.However, Article 8(3)(b) of Regulation No 2377/90 does not provide for theCommission's right to ask the CVMP for a further opinion under anycircumstances.

33.

    In any event, the further action taken by the Commission was not pursued withdiligence. The applicant points out that the fact that the Adaptation Committeehad not delivered an opinion was noted on 16 October 1995, but the request fora further opinion was not submitted to the CVMP until 23 April 1996, that is to sayafter six months of inactivity. That period of inactivity was, on any view of thematter, not compatible with the obligation to act 'without delay‘, laid down inArticle 8(3)(b) of Regulation No 2377/90.

34.

    Thus, in breach of its obligations, the Commission failed to pursue the procedurefor the inclusion of somatosalm produced by the applicant in the list of substancesnot subject to an MRL in Annex II. Accordingly, the application for a declarationof failure to act is well founded.

35.

    The Commission's primary contention is that there is no longer any need toadjudicate on the application for a declaration of failure to act.

36.

    It points out that, on 25 September 1996, it submitted to the Council a proposal fora regulation including somatosalm in Annex II. In its submission, it therebyadopted, before delivery of judgment in this case, the measures sought by theapplicant. Accordingly, the subject-matter of the application for a declaration offailure to act has ceased to exist, so that there is no longer any need to adjudicateon it (Case 377/87 Parliament v Council [1988] ECR 4017, paragraph 10).

37.

    The Commission contends, in the alternative, that the application for a declarationof failure to act is unfounded.

38.

    It acknowledges that Article 8(3)(b) of Regulation No 2377/90 requires it to actwith some expedition. However, that obligation has to be reconciled with the otherobligations laid down by the Regulation and, in particular, that laid down in Article15, under which: 'This regulation shall in no way prejudice the application ofCommunity legislation prohibiting the use in livestock farming of certain substanceshaving a hormonal action.‘

39.

    The Commission points out that somatosalm is a somatotropin from the samefamily as BST, which is subject to a moratorium on its marketing. It also points outthat it was because of that moratorium and the fact that it would be implicitlyundermined if another somatotropin were to appear on the Community market,that several Member States objected, in the Adaptation Committee, to the veryprinciple of including somatosalm in one of the annexes to Regulation No 2377/90.

40.

    According to the Commission, it was in the light of that risk alluded to by theMember States and of the terms of Article 15 of Regulation No 2377/90 that itdecided, notwithstanding the absence of any procedure expressly provided for bythat regulation, to consult the CVMP again. As a result of the second opinionissued by that committee, the Commission was in a position to dispel all doubtsabout the matter at issue and thus to facilitate greatly the work of the Council asregards the inclusion of somatosalm in Annex II.

Findings of the Court

41.

    It is settled case-law that the remedy provided for in Article 175 of the Treaty isfounded on the premiss that unlawful inaction on the part of the EuropeanParliament, the Council or the Commission enables the other institutions and theMember States and, in circumstances such as those in point in the present case,private persons, to bring the matter before the Court of Justice or the Court ofFirst Instance in order to obtain a declaration that the failure to act is contrary tothe Treaty, in so far as it has not been repaired by the institution concerned. Theeffect of that declaration, under Article 176 of the Treaty, is that the defendantinstitution is required to take the necessary measures to comply with the judgmentof the Court of Justice or of the Court of First Instance holding that the institutionhas failed to act, without prejudice to any actions to establish non-contractualliability to which the aforesaid declaration may give rise (Joined Cases C-15/91 andC-108/91 Buckl and Others v Commission [1992] ECR I-6061, paragraph 14 andCase T-28/90 Asia Motor France and Others v Commission [1992] ECR II-2285,paragraph 36).

42.

    Where the act whose absence constitutes the subject-matter of the proceedings wasadopted after expiry of the period of two months following the request to act, butbefore judgment, a declaration by the Court of Justice or by the Court of FirstInstance to the effect that the initial failure to act was unlawful can no longer bringabout the consequences prescribed by Article 176 of the Treaty. It follows that insuch a case, as in cases where the defendant institution has responded within aperiod of two months after being called upon to act, the subject-matter of theaction has ceased to exist (on this point see the judgments cited above, atparagraphs 15 and 37 respectively).

43.

    Moreover, in certain circumstances, an act which is not challengeable by an actionfor annulment may constitute a definition of position terminating the failure to actif it is the prerequisite for the next step in a procedure which has, in principle, toculminate in a legal act which itself will be challengeable by an action forannulment (Case 302/87 Parliament v Council [1988] ECR 5615, paragraph 16, andCase T-186/94 Guérin Automobiles v Commission [1995] ECR II-1753, paragraph25).

44.

    In the present case, on 25 September 1996, the Commission referred to the Councila proposal for a regulation including somatosalm in Annex II. In so doing, theinstitution adopted a position, before delivery of judgment, on the applicant's callfor it to act.

45.

    That being so, there is no need to adjudicate on the application for a declarationof failure to act.

The claim for damages

Preliminary observations

46.

    The second paragraph of Article 215 of the Treaty provides that in the case of non-contractual liability, the Community, in accordance with the general principlescommon to the laws of the Member States, is to make good any damage caused byits institutions in the performance of their duties.

47.

    According to well-established case-law, the Community's non-contractual liabilityis not incurred unless a set of conditions relating to the illegality of the Communityinstitution's conduct which is the subject of complaint, the occurrence of actualdamage and the existence of a causal link between the unlawful conduct and theharm alleged are all fulfilled (see, by way of example, Joined Cases C-258/90 andC-259/90 Pesquerias de Bermeo and Naviera Laida v Commission [1992] ECRI-2901, paragraph 42 and Joined Cases T-481/93 and T-484/93 Exporteurs inLevende Varkens and Others v Commission [1995] ECR II-2941, paragraph 80).

48.

    In the present case it is appropriate first to consider the condition relating to theexistence of unlawful conduct.

The existence of unlawful conduct on the part of the Commission

Arguments

—     The rules governing liability

49.

    The Commission refers to Cases T-571/93 Lefebvre and Others v Commission [1995]ECR II-2379 and T-167/94 Nölle v Council and Commission [1995] ECR II-2589,paragraph 52, and argues that inasmuch as the alleged failure to act causing thedamage concerns the submission of a draft regulation, the applicant mustdemonstrate that there has been a sufficiently serious breach of a superior rule oflaw for the protection of individuals.

50.

    The applicant does not deny that it must prove that there has been such a breach.

—     The existence of a breach of a superior rule of law for the protection ofindividuals

51.

    The applicant submits that the Commission has breached two superior rules of lawfor the protection of individuals, namely, first, the principles of legal certainty andof protection of legitimate expectations, and, second, the principle of properadministration.

52.

    It argues that the principles of legal certainty and the protection of legitimateexpectations require that the application of a legislative provision to a specificsituation must be foreseeable (Case 13/61 Kledingverkoopbedrijf de Geus enUitdenbogerd [1962] ECR 45 and Case 81/72 Commission v Council [1973] ECR575). In this case it was entitled to expect the Commission to apply the procedurelaid down by Regulation No 2377/90 correctly, by proposing to the Council themeasures to be adopted 'without delay‘, since, on 16 October 1995, the AdaptationCommittee had not given its assent to the measures proposed by the Commission.

53.

    As from 16 October 1995 the Commission did nothing to advance the procedurefor six months, in the event until 23 April 1996, when it decided to ask the CVMPfor further information. It thus violated the principles of legal certainty and theprotection of legitimate expectations.

54.

    The principle of proper administration has also been violated, in that theCommission should have compiled all the information it considered necessary whenthe first draft measures were referred to the Adaptation Committee, as themoratorium on BST already existed at that point.

55.

    In remaining inactive for the six months between 16 October 1995 and 23 April1996 for no reason, the Commission offended against that principle, which requiresa Community institution to be diligent and efficient.

56.

    The Commission contends that it applied the procedure laid down in RegulationNo 2377/90 correctly. Accordingly, it did not violate the principle of the protectionof legitimate expectations. In its submission, if the applicant's arguments were tobe accepted, any breach of a provision of Community law would be contrary to theprinciple of the protection of legitimate expectations, because an individual isalways entitled to expect the Community institutions to comply with Communitylaw.

57.

    The Commission points out that, according to the case-law, the right to rely on theprinciple of the protection of legitimate expectations extends to any individual whois in a situation in which it is apparent that the Community administration, bygiving him precise assurances, has led him to entertain justified expectations (CaseT-336/94 Efisol v Commission [1996] ECR II-1343, paragraph 31). The applicanthas not explained what these 'precise assurances‘ were in the present case.

58.

    As regards the alleged breach of the principle of proper administration, theCommission points out that it requested a further opinion from the CVMP at thepoint when doubts arose as to whether the inclusion of somatosalm in Annex IImight undermine the moratorium on BST. This second consultation of the CVMPwas called for precisely for reasons of proper administration. If, during the courseof the procedure laid down by Regulation No 2377/90, doubts arise as to thelegality of the act in question, it is the Commission's duty to take them intoaccount. Moreover, the duty of diligence, which is implied by the principle ofproper administration, cannot be carried to the point where an institution incursliability on the ground that it did not take account of all the aspects of a matterfrom the start of a procedure.

59.

    The Commission refers to the case which gave rise to the judgment of the Courtof Justice in Denkavit v Commission (Case 14/78 [1978] ECR 2497), in which theapplicant complained that the Commission had waited 21 months before takingmeasures, in circumstances comparable to those in this case. It points out that, inthe judgment in that case (paragraph 20), the Court of Justice held that theCommission could not be blamed for having waited until it was fully informedbefore adopting a decision on a matter as complex as the presence in feeding-stuffsof substances which might prove to be undesirable from the point of view of humanor animal health.

60.

    Finally, the Commission contends that the Court of First Instance must take anoverall view of the advantages and disadvantages for traders of the acts oromissions of the Community institutions. In the present case, by consulting theCVMP a second time, the Commission considerably facilitated, in practice, theadoption of a regulation including somatosalm in Annex II.

61.

    The Commission accordingly contends that it violated neither the principles of legalcertainty and the protection of legitimate expectations, nor the principle of properadministration.

Findings of the Court

62.

    As the parties acknowledge, the Community's liability can be incurred in this caseonly if it is proved that there has been a sufficiently clear breach, by theCommission, of a rule of law for the protection of individuals, since the allegedfailure to act relates to a legislative act.

—     The existence of a breach of the principles of legal certainty and theprotection of legitimate expectations

63.

    The principle of legal certainty aims inter alia to ensure that situations and legalrelationships governed by Community law remain foreseeable (Case C-63/93 Duffand Others [1996] ECR I-569, paragraph 20, and Case T-229/94 Deutsche Bahn vCommission [1997] ECR II-1689, paragraph 113).

64.

    The principle of the protection of legitimate expectations can be relied on by anyindividual whom a Community institution has caused to entertain justifiedexpectations (Case T-489/93 Unifruit Hellas v Commission [1994] ECR II-1201,paragraph 51). In contrast, it is not open to anyone, in the absence of specificassurances given by the administration, to plead breach of the principle ofprotection of legitimate expectations (Case T-521/93 Atlanta and Others v EEC[1996] ECR II-1707, paragraph 57).

65.

    In the present case it should be observed that Article 8(3)(b) of Regulation No2377/90 does not specify exactly the period within which the Commission mustpropose to the Council the measures to be adopted. To the contrary, in using theexpression 'without delay‘, the Community legislature allowed the Commission acertain margin for manoeuvre, whilst requiring it to act swiftly.

66.

    Accordingly, it cannot be inferred from the relevant rules that the period withinwhich the Commission had to act was perfectly foreseeable and that preciseassurances were given to the applicant with regard to that period.

67.

    Moreover, whilst it is true that it took the Commission 11 months to propose to theCouncil, on 25 September 1996, the measures to be adopted, it is also true that, on23 April 1996, it asked the CVMP for a further opinion.

68.

    Since certain Member States had objected to the inclusion of somatosalm in AnnexII because they feared that the substance could be used to boost growth, theCommission cannot be criticised for having reconsidered the matter for a certaintime and then asked the CVMP for a further opinion.

69.

    Where it is confronted with a matter which is highly complex and sensitive bothscientifically and politically, the Commission must be accorded the right to seeksuch an opinion even though Regulation No 2377/90 is silent on the point.

70.

    Moreover, as the Commission has rightly observed, it was as a result of the furtheropinion it obtained that it was able to dispel all doubt regarding the questionwhether somatosalm could be used to boost growth. In those circumstances, theCommission greatly facilitated the work of the Council, which, having noted thefurther opinion of the CVMP, did not oppose the inclusion of somatosalm in AnnexII.

71.

    In the result, through asking for a further opinion on 23 April 1996, only six monthselapsed after 16 October 1995, the date on which the Adaptation Committee failed

to give its assent to the measures proposed by the Commission, without theCommission taking any decision.

72.

    Under those circumstances, the Commission was not in breach, and a fortiori didnot commit a sufficiently clear breach, of either the principle of legal certainty orthat of the protection of legitimate expectations.

—    The existence of a breach of the principle of proper administration

73.

    The question arises whether the principle of proper administration has beenviolated in that the Commission did not ask the CVMP for further information atthe stage when the first draft measures were referred to the AdaptationCommittee. The question also arises whether, in requesting a further opinion sixmonths after 16 October 1995, when the measures proposed failed to receive theassent of the Adaptation Committee, the Commission violated the principle ofproper administration.

74.

    On that point, it is clear from the documents before the Court that the Commissiondid not initially ask the CVMP for further information because it did not foreseethat the representatives of the Member States would object to the inclusion ofsomatosalm in Annex II because of the moratorium on BST.

75.

    It was entitled to take the view initially that the inclusion of somatosalm would notmeet with any serious opposition, since the moratorium on BST related only toBST and not to other somatotrophins.

76.

    When, later in the procedure, it became apparent that the representatives of theMember States were establishing a link between the moratorium and somatosalm,it requested a further opinion from the CVMP following a reasonable period ofreflection.

77.

    In those circumstances, the Commission's reasoning and the steps which it took inno way disclose any mismanagement of the matter on its part.

78.

    Accordingly the Commission did not commit a breach of the principle of properadministration such as to give rise to the liability of the Community.

Conclusion

79.

    It follows from the foregoing that the applicant has not demonstrated that thecondition relating to illegal conduct on the part of the Commission is fulfilled.

80.

    Accordingly, the claim for damages must be dismissed as unfounded, without therebeing any need to consider whether the conditions relating to the occurrence ofactual damage and the existence of a causal link are fulfilled.

81.

    Consequently, there is no need to grant the Commission's request for evidence tobe heard from the shareholders who lent funds to the applicant company.

Costs

The claim for a declaration of failure to act

82.

    Under Article 87(6) of the Rules of Procedure, where a case does not proceed tojudgment, the costs are to be in the discretion of the Court of First Instance.

83.

    In the present case, the Commission cannot be criticised for the way in which itmanaged the matter. The applicant should therefore be ordered to pay the costs.

The claim for damages

84.

    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 Commission has applied for costs, and the applicant has beenunsuccessful in its claim for damages, the applicant should be ordered to pay thecosts.

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber)

hereby:

1.    Declares that there is no need to grant the Commission's request forevidence to be heard;

2.    Declares that there is no need to adjudicate on the application for adeclaration of failure to act;

3.    Dismisses the claim for damages as unfounded;

4.    Orders the applicant to pay the costs.

VesterdorfBriët Potocki

Delivered in open court in Luxembourg on 17 February 1998.

H. Jung

B. Vesterdorf

Registrar

President

1: Language of the case: French.