JUDGMENT OF 15. 3. 1984 — CASE 64/82 TRADAX / COMMISSION

In Case 64/82

THE COURT (First Chamber) composed of: T. Koopmans, President of Chamber, A. O'Keeffe and G. Bosco, Judges, Advocate General : Sir Gordon Slynn Registrar: P. Heim

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the procedure and the conclusions, submissions and arguments of the parties may be summarized as follows:

I — Facts and written procedure

1. The Community rules concerned

According to Article 13 (1) of Regulation No 2727/75 of the Council of 29 October 1975 on the common organization of the market in cereals (Official Journal, L 281, p. 1), which replaced Regulation No 120/67 of 13 June 1967 (Official Journal, English Special Edition 1967, p. 33), a levy is to be charged on the importation of certain products referred to in Article 1 equal for each product to the threshold price less the cif price.

Article 13 (2) and (3) makes provision for the calculation of the cif prices. In particular paragraph (2) specifies that cif prices are to be calculated for Rotterdam on the basis of the most favourable purchasing opportunities on the world market, determined for each product on the basis of the quotations and prices on that market after adjustment for any differences in quality as compared with the standard quality for which the threshold price is fixed. Paragraph (4) gives the Commission power to make rules for the application of the article, in accordance with the Management Committee procedure. Paragraph (5) provides that the Commission is to fix the amount of the levies mentioned in the article.

Pursuant to Article 13 (4) of Regulation No 120/67, which was identical to Article 13 (4) of Regulation No 2727/75, on 23 June 1967 the Commission, in accordance with the Management Committee procedure, adopted Regulation No 156/67 on the method of determining cif prices and levies for cereals, flour, groats and meal (Official Journal, English Special Edition 1967, p. 111). According to that regulation the Commission is to take into account “all offers made on the world market... and the quotations of the main international commercial exchanges... on the basis of the most favourable purchasing opportunities of which it has knowledge”; for offers made in a port other than Rotterdam it is to take into account the difference in freight charges as compared \vith Rotterdam (Article 1 (1): it may exclude certain offers in four cases clearly defined in Article 1 (2); it may exceptionally maintain a cif price unaltered for a limited period if the two conditions laid down in Article 1 (3) arc met). With some amendments Regulation No 156/67 has remained applicable after the coming into force of Regulation No 2727/75.

On the basis of the power conferred upon it by Article 13 of Regulation No 2727/75 the Commission, in several regulations made within that framework, fixed the import levies applicable, inter alia, to cereals for the period 28 to 31 October 1980 inclusive. The recitals in the preambles to those regulations refer to the application of the rules on offer prices and quotations laid down in Commission Regulation No 2035/80 of 31 July 1980 fixing the import levies on, inter alia, cereals (Official Journal, L 200, p. 1).

According to the annexes to the regulation which fixed the amounts of the levies for that period, the levy on maize, in European currency units [ECU] per tonne, amounted to:

69.92 (Regulation. No 2746/80 of 28 October 1980 (Official Journal L 284, p. 15) — levy on Wednesday.29 October 1980);

66.62 (Regulation No 2763/80 of 29 October 1980 (Official Journal, L 287, p. 3) — levy on Thursday 30 October 1980);

66.62 (Regulation No 2780/80 of 30 October 1980 (Official Journal L 288, p. 1) — levy on Friday 31 October 1980);

68.92 (Regulation No 2799/80 of 31 October 1980 (Official Journal L 292, p. 1) — levy on Saturday 1 November 1980).

The threshold price for maize for the month of October 1980 was 193.24 ECU per tonne; for the month of November 1980 it was increased to 195.11 ECU per tonne.

According to the Commission, trom 2 8 to 31 October 1980 maize quotations on the Chicago exchange were generally on the upward trend subject to some irregular fluctuations, since that period preceded by a few days the United States presidential elections of 5 November 1980, in which context the embargo placed by the United States on the export of cereals to the USSR, after the events in Afghanistan, had some effect.

2. Facts

Tradax Graanhandel BV, Amsterdam, is a subsidiary of Tradax International SA Panama, which belongs to the American Cargill group. According to the Commission, Tradax did not inform it of any prices or offers for maize during the material period, nor did it do so before or after. The Commission became aware of Tradax offers from other sources.

In its application Tradax states that on 29 March 1981 its legal adviser telephoned the officers of the Commission on its behalf for details of the way in which the Commission had carried out its calculations. The Commission states that it has found no record of that conversation.

By letter of 12 October 1981 Tradax called upon the Commission to make available to it the exact information relied on in fixing prices from 28 to 31 October 1980 inclusive and asked to inspect at the Commission's premises the documents used in calculating the prices, but did not give any reason whatever for its request.

By registered letter of 24 November 1981 the applicant formally called upon the Commission, under Article 175 of the Treaty, to define its position on the request which had been made to it.

By letter of 14 December 1981, signed by Mr Williamson but without indication of his grade or capacity, the Commission replied as follows:

I beg to inform you that the cif prices for the dates referred to were determined in strict compliance with the provisions applicable.

Mr Williamson is Deputy Director General in Directorate General VI (Agriculture) with particular responsibility for Directorate VI/C (Organization of Markets in Crop Products), of which Division I (Cereals and derived products) forms part.

Tradax did not reply to that letter but, considering it an inadequate reply, brought its action on 15 February 1982, claiming that the levies which it was obliged to pay were clearly too high because they had been calculated on the basis of a cif price for Rotterdam which was lower than the price which should have resulted from the application of Article 13 of Regulation No 2727/75.

3. Written procedure

The application was received at the Court on 15 February 1982.

By an application on a procedural issue dated 5 April 1982 the Commission raised an objection of inadmissibility in accordance with Articles 91 and 92 of the Rules of Procedure of the Court.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court, by order of 22 September 1982, reserved for the final judgment its decision on the objection.

The written procedure then resumed its normal course with regard to the substance of the case.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry.

By order of 18 May 1983 the Court decided to assign the case to the First Chamber, pursuant to Article 95 (1) and (2) of the Rules of Procedure of the Court, no Member State or institution having requested that the case be decided in plenary session.

II — Conclusions of the parties

The applicant claims that the Court should:

Primarily, declare that the Commission has failed to define its position after being called upon on 24 November 1981 to do so;

In the alternative, declare void the Commission's reply of 14 December 1981;

In any event, declare that in refusing to state on what precise factual basis, pursuant to Regulations Nos 2727/75 and 156/67, it fixes the cif prices with reference to which the levies are calculated, and refusing to make available the relevant documents despite having been requested to do so by the undertaking concerned, the Commission lias committed a wrongful act or omission;

As a result, order the Commission to pay one florin in damages;

Order the Commission to pay the costs.

In its objection of inadmissibility the Commission contends that the Court should:

Declare the action inadmissible, either in respect of its three parts together, in respect of each part separately or because there is an absolute ban to proceeding with the case on grounds to be considered by the Court of its own motion;

Order Tradax to pay the costs.

In its observations on the objection, the applicant claims that the Court should:

Declare the action for failure to act and the action for damages to be admissible;

In the alternative, declare the action for a declaration of nullity and the action for damages to be admissible;

In any event, declare the action for damages to be admissible;

In all three cases, if the Commission's contention is accepted, declare that the replies and documents claimed by the applicant shall be placed at the disposal of the Court and of the applicant;

In the alternative, reserve its decision on the objection for the final judgment, and order that the replies and documents be placed at the disposal of the Court and of the applicant;

Order the Commission to pay the costs.

In its defence the Commission contends that the Court should:

Declare the action brought by Tradax on the basis of Articles 173, 175, 178 and 215 of the Treaty to be inadmissible, or in the alternative dismiss it as unfounded;

Order Tradax to pay the costs.

III — Submissions and arguments of the parties

Admissibility

In its objection of inadmissibility, first in so far as the action is based on Article 175 of the Treaty, the Commission starts by contending that there is no general obligation to adopt the measure requested. No provision of the regulations concerned, be it Article 13 of the basic regulations of the Council or any provision of the Commission's implementing regulation, implies the existence of such an obligation; nor can such an obligation be inferred from the Commission's customary conduct in this regard, since the Commission generally refuses to make known the data on which such calculations are based. According to the Commission, the imposition of levies falls under the powers which it must exercise daily, adopting regulations in a short space of time. That power has not however been left to the entire discretion of the Commission but must be exercised in compliance with certain rules in a well-defined framework (the Management Committee procedure), which guarantees efficiency in the Commission's work. If the Commission were obliged systematically to divulge information on undertakings, that might not only give the competitors of such undertakings information on their commercial policy, but also induce the undertakings no longer to give the Commission such information on their commercial policy; the effect would be to make the fixing of levies in the framework of the agricultural policy difficult if not quite impossible. Nor can it be inferred from the case-law of the Court (in particular Case 16/65, Schwarze [1965] ECR 877) that the Commission is in general obliged systematically to divulge technical data used in the calculation of levies which it is to fix. In this case Tradax has referred to the existence of such information neither in its letters of 12 October and 24 November 1981 nor in its application to the Court. Furthermore, the measure which the Commission could have adopted in reply to the question from Tradax must be assimilated to an opinion or a recommendation, and not to a decision; in Case 6/70 {Borromeo [1970] ECR 815) the Court held that in a case of this sort the action must be declared inadmissible.

The Commission also argues that the letter sent by Mr Williamson, dated 14 December 1981, amounts to defining its position. That letter shows a clear link between Tradax's calling upon the Commission to act and the Commission's defining of its position. That clearly indicates that the Commission is bound to follow strict rules for the calculation of the levies, and the wording of the letter shows by implication that the Commission did not consider it necessary to react in any other way to Tradax's demand, or to give further information in response to the demand, which was formulated in general terms.

în order for the action for failure to act to be admissible the institution in question must have failed to address to the person concerned an act other than a recommendation or an opinion. In this case the act requested must be assimilated to a recommendation or an opinion.

Finally, the Commission argues that if it were possible to accept that Tradax's action was directed towards obtaining a general measure, not only would such a measure be contrary to the division of powers laid down by the Treaty, since its adoption would be covered by the powers reserved to the Council, but its general nature would in itself be a sufficient reason to declare the action inadmissible.

In so far as the action is based on Article 173 of the Treaty, the Commission first raises a procedural argument to the effect that it is inadmissible. If an applicant brings an action with two contradictory claims, of which one is moreover expressed as subsidiary to the other, it necessarily results that if the main claim is admissible, the alternative claim meets the same fate. The Commission takes the view that if the main portion of the application made pursuant to Article 175 is inadmissible, it follows that all the other heads of action which are subsidiary to it must also be considered inadmissible.

This aspect of the application, according to the Commission, is inadmissible also because the letter sent by Mr Williamson does not constitute a decision within the meaning of the second paragraph of Article 173 or the fourth paragraph of Article 189 of the Treaty, nor can it be considered equivalent or assimilated to such a decision. In article 175 the expression “decision” is used [sic] in a wider sense than in the second paragraph of Article 173. The measure by which the Commission defined its position in accordance with Article 175 therefore does not necessarily constitute a decision which may be contested on the basis of Article 173. Furthermore, for that letter to be considered a decision, according to the case-law of the Court, it would have to be a measure adopted by the competent authority, to be intended to have legal effects, to be mandatory in nature, to constitute the termination of an internal procedure and to be a definitive decision. The Commission maintains that the letter fails to meet most if not all of those conditions. In particular it is not a decision which may be described as a measure adopted by the competent authority, since the deliberations of the Commission are subject to the observance of certain rules, including that of the collective responsibility of the Commissioners. Moreover if the applicant still had reason to suppose that the letter amounted to a decision, it had the opportunity to inquire further of the Commission, which it did not do.

In regard to the inadmissibility of the claim based on Article 215 of the Treaty the Commission begins by raising the procedural argument that if the primary claim based on Article 175 is itself inadmissible, it follows that all the subsidiary claims must also be regarded as inadmissible. Furthermore there was obviously no manifest and serious wrongful act or omission or sufficiently serious breach of a superior rule of law. There was also clearly no real damage whatsoever, particularly since Tradax estimates its damage at one Netherlands florin and thus itself acknowledges that it wishes the Court to decide a question of principle in the area of legal interpretation, without finding it necessary to show that it has suffered real damage.

For its part the applicant argues that the fact that the Council and the Commission have laid down in detail the method of calculating levies shows clearly that the Commission has no discretion in making such calculations but has on the contrary a series of legal obligations. Every person concerned must therefore have the opportunity to check the legality. of the calculations. The Commission considers it sufficient to rely on a general obligation of secrecy but does not indicate which specific interests it is supposed to protect, so that the Court cannot form its own opinion on the matter. The argument that the Commission's conduct is justified because it refuses as a general rule to make known data of this kind cannot be accepted in law or in fact. The Commission makes no reference to the principles of good administration, of legality and proper judicial protection or of legal certainty and the protection of legitimate expectation, on which the action is founded. Yet those principles are part of the administrative law of the Member States, and thus of Community law, as the applicant shows in presenting a detailed analysis of the administrative law of the various Member States. The applicant concludes that according to Community law the Commission was obliged to make available to it the documents requested.

The applicant points out that the Commission did not define its position in its letter of 14 December 1981. The applicant's request did not seek to obtain the Commission's opinion as to whether it had calculated the prices in a legal manner, but to obtain the data on the basis of which the prices had been calculated and permission to inspect those data at the Commission's premises in order itself to check the legality of the calculation. The Commission in fact refrained from defining its position on the substance of the request.

The request was directed not towards obtaining an opinion or a recommendation but towards obtaining information, that is, the fulfilment by the Commission of its obligation, in the circumstances of this case, to provide such information. Nowhere in the applicant's letters does it ask for an opinion or a recommendation.

The applicant denies having had the intention to obtain a measure of general application since it considered that there was already a general obligation to provide information if a specific demand was made. The individual request of the applicant should have called forth an individual and specific reply.

With reference to the inadmissibility of the claim based on Article 173, the applicant shows that it is precisely because the two obviously distinct claims are mutually exclusive that they may be brought in a single application, on condition that one is made alternative to the other.

The Commission's letter of 14 December 1981 does not, according to the applicant, amount to a decision within ue meaning of the second paragraph of Article 173, for the simple reason that the letter in no way defines a position on the request, with the result that the claim for failure to act is admissible, which obviously excludes the admissibility of a claim for a declaration of nullity. It is precisely because of the deliberate vagueness of the letter (“the Commission has not failed to act in response i:o the applicant's request”) that Tradax brought the alternative claim for a declaration of nullity. If the claim for failure to act were to be declared inadmissible because the Commissicn had defined its position in its letter, it would necessarily follow that the claim for a declaration of nullity was admissible. If it could not be accepted that the acts of senior officials in the course of every day administration have legal effects, it would be impossible for the administration to conclude agreements, to place orders and so forth on a daily basis. One may therefore reasonably conclude that in his position as deputy director general Mr Williamson was competent to adopt measures in the agricultural sector having legal consequences.

According to the applicant the decision of 14 December 1981 has legal consequences. The refusal to provide information prevents the applicant from checking whether the regulation fixing the levies was applied correctly from the factual and legal points of view. For the applicant it is a case of a definite legal effect damaging its interests, contrary to the general principles of good administration. The Commission is wrong still to maintain that its refusal to inform Tradax of the correct data used for calculating the levies does not harm the applicant's legal position since it could still demand repayment of the levies in the ordinary way if it was able to show errors committed by the Commission or the national authority. The national authority has committed no wrongful act in the present case; the applicant requested the information in question precisely in order not to have to take legal action, and the refusal forced it to bring this action. This action is even more appropriate than an action for repayment in the national court since it is not established that the Commission has made no error in calculation and since by its refusal it is preventing the applicant from checking whether errors in calculation have been made.

The decision of 14 December 1981 is mandatory in nature, since it cannot be maintained that the implied refusal to give the information requested is not mandatory in nature.

Finally, the letter in question amounts to an implied refusal, and not a preparatory act.

With reference to the claim for damages based on Article 215 the applicant argues that it is not alternative in nature but was brought expressly, whatever the results in the primary claim for failure to act or the alternative claim for a declaration of nullity. The procedural argument made by the Commission is therefore unfounded.

Having regard to the alleged clear absence of any manifest and serious wrongful act or omission, the applicant argues that in its specific situation there has been no involvement whatever of a national authority, but only the refusal of the Commission to provide specific calculation data, so that the case-law of the Court which considers such actions admissible applies to this action. It appears from the case-law that even if an action founded on Article 215 puts in question the legality or deficiency of Community acts, the Court's jurisdiction to declare the action admissible is not affected. In the present case the wrongful act or omission lies in the Commission's refusal to provide specific information, that is, an individual and not a legislative act. As a result the Commission cannot maintain that this case lies within the legislative powers of the Community institutions.

With reference to the obvious absence of any real damage the applicant states that it is not disputed that if the Commission had been prepared to provide the information requested Tradax could have established either that the price calculation had been properly performed, in which case the matter would have gone no further, or that it had in fact paid too much in import duties, in which case it was entitled to bring a claim for repayment of the excess before a national court. Since the Commission refused to define its position with regard to the questions put to it and refused to provide the information, the applicant was obliged to bring this action before the Court. The fact that the applicant has put a value of one florin on its damage indicates simply that it is in fact claiming to have suffered damage, which it has wished to evaluate in a reasonable manner.

Substance

In regard to the facts Tradax argues that it may have been mistaken in supposing, on the basis of its information, that the cif prices for maize calculated by the Commission for 28, 29, 30 and 31 October 1980- were too low. It was in order to have a precise idea of the price calculations made by the Commission that it asked the Commission for the right to inspect the calculation data it had actually used. Why, moreover, should the applicant have asked the Commission for information if it could already have formed a clear and complete view of the market in question on the basis of the data already in its possession? With regard to the data with which it should have provided the Commission the applicant states that those could only be data which the Commission already had since they came from representative grain dealers and official agencies, and Article 1 of Regulation No 156/67 requires the Commission to have knowledge of offers made on the world market. The applicant was therefore right to ask questions since it appears, among other things, that the Commission refuses to determine cif prices exclusively on the basis of published offers. Article 1 of Regulation No 156/67 obliges the Commission to determine cif prices on the basis of all offers of which it may have knowledge through Member States or by its own means and the quotations on the main commercial exchanges, which obviously are generally known, and on the basis of information of which it has knowledge, that is, exclusively published offers and exchange quotations.

In regard to the claim for failure to act the applicant makes a first submission relating to breach of the general principle of good administration, inasmuch as the Commission did not define its position on the request for communication of the precise data used in fixing the cif prices for the period in question or on the request to consult the documents used, and inasmuch as it simply asserted that the calculations had been carried out correctly and lawfully without in any way justifying or giving reasons for that assertion. Yet the principle of good administration requires that in the perspective of an administration conscious of its duties, persons subject to the Commission's measures should know the reasons for those measures; moreover the general rule must be applied whereby those to whom a decision of a public authority is directed which significantly harms their interests must be kept informed. It is in the interest both of the public service and of the individuals concerned that the latter should receive from the Commission all the information necessary for checking the legality and correctness of the amount of the levy which they have paid. The applicant has no other way to obtain satisfaction than by bringing an action, whereas it could have saved itself the trouble; where the Commission is asked to explain its actions with regard to a specific matter it is obliged to reply.

The applicant makes a second submission relating to breach of the principle of legality and the principle of protection of this rights of those affected, inasmuch as the Commission failed to define its position in the circumstances indicated above, whereas on the one hand, in order for the Community legal order to be effective the Commission must reply to legitimate requests, and, on the other hand, the protection of the addressees and other persons concerned and the requirements of proper judicial review make it necessary that the Commission put at the disposal of an undertaking which so requests all the technical data on the basis of which it has calculated the prices (cf. judgment in Case 16/65, referred to above).

The applicant makes a third submission relating to breach of the principle of legal certainty and the principle of protection of legitimate expectation, inasmuch as the Commission failed to give the information and permission requested, whereas on the one hand the principle of legal certainty requires that each person subject to the law should be enabled to discover with certainty his rights and obligations and therefore to ensure that the Commission has made no factual or legal errors in determining a cif price as the basis for levies, and on the other hand the principle of the protection of legitimate expectation implies a fortiori the right to be placed in a position to check whether legislation in force has been properly applied.

In regard to the claim for a declaration of nullity the applicant makes a first submission alleging a breach of Article 190 of the Treaty inasmuch as the Commission failed to state the grounds for its decision refusing to communicate exact data and the documents on the basis of which it calculated the cif prices for the period in question, whereas even if that is not a decision within the meaning of Article 190, it is in any event an act within the meaning of Article 173 and is contrary to the principle of good administration, which requires the Commission to make known the information requested.

The applicant makes a second submission claiming breach of the principle of legality and the principle whereby persons affected by administrative measures must be properly treated according to law, inasmuch as the Commission refused to comply with the requests, whereas according to those principles the person concerned should, when he so requests, be enabled to check the Commission's acts and should not be obliged to obtain satisfaction by long and expensive procedures.

Finally, the applicant makes a third submission alleging breach of the principle of legal certainty and the principle of the protection of legitimate expectation, inasmuch as the Commission refused to comply with the applicant's requests, whereas that refusal was contrary to the said principles for the same reasons as those adduced in support of the third submission made in respect of the claim for failure to act.

With regard to the claim for compensation the applicant argues that the Commission committed a wrongful act or omission in any event in not communicating the information requested, regardless of the fact that it did not define its position on the request contained in the letter of 24 November 1981, and whether or not the letter of 14 December 1981 amounted to a decision to refuse the request. The wrongful act or omission lies first in the illegality of the Commission's conduct, which constituted a breach of the principles referred to above. Even if it were to be accepted that the act or inaction of the Commission was not illegal, it committed in any case a wrongful act or omission inasmuch as, once it had taken the trouble to reply in its letter of 14 December 1981 to the applicant's request and had taken the request into consideration, it was obliged to take the correct action thereon, either by giving the information requested or by giving reasons for a refusal. The material and nonmaterial damage includes the fact that the applicant was deprived of any opportunity of checking the legality of the decision in question without bringing legal action.

The Commission replies first that, attached to its application, Tradax presented to the Court facts which it had not previously communicated to the Commission in its letters of 12 October and of 24 November 1981, or in any other way at any other time. Those specific facts concerning maize deal for the most part not with the price at which sales or transactions were actually concluded but with offers or proposals made by vendors on the market in question. The difference between the actual prices on the one hand and offers on the other is of fundamental importance in the differences of opinion between the Commission and Tradax. The Commission takes the view that in appraising the situation of the market any confusion between offers and actual prices should be avoided. According to the Commission however it is just that confusion which is to be found in Annex I to Tradax's application, where offers and prices actually paid are treated alike in a single table. Experience sho\vs that in the cereals market offers are generally made at prices higher than those at which transactions are in fact concluded. From the commercial point of view this can easily be explained, since grain dealers normally wish to reserve themselves a margin, in relation to offers made, which allows them if necessary to lower their offer during negotiation of the transaction and thus to have a supplementary argument in favour of a sale, in comparison with their competitors. Any grain dealer of even slight experience avoids exhausting the possibilities of competition on price at the stage of the offer. This is a normal price strategy in the market in question; in order to be convinced of this one need only compare the offers made on a given day with the prices agreed on the same day. Where it has been possible to make the comparison for a given day and for a given delivery period, either “afloat” (immediate delivery) or with a delay of one or more months, actual prices are on average $2 lower than offers.

With regard to the claim based on Article 175 of the Treaty the Commission argues that the general legal principle of good administration cannot give rise to any obligation whatever to provide the information requested. For the same reason there can therefore be no breach of the principle in a failure to furnish the information in the present case, and since no breach of the principle can be shown, the first submission of Tradax is unfounded.

In regard to the submission alleging breach of the principle of legality and the principle of proper administration of justice, it does not give rise to any obligation to provide the information requested and for the same reasons can therefore not be breached by the failure to provide the information in this case. Since it is impossible to establish any breach of those principles the second submission of Tradax also is unfounded.

In regard to the third submission claiming breach of the principle of legal certainty and the principle of the protection of legitimate expectation, the conduct of the Commission's officers cannot constitute any such breach since those principles give rise to no obligation to provide the information requested. The third submission of Tradax is therefore also without foundation.

With reference to the claim based on Article 173 of the Treaty, the letter of 14 December 1981 contains no final refusal to provide the information sought, which, moreover, was requested in a letter phrased in general terms. That is, it may be thought that the Commission would have provided the information if Tradax had been able to show that the levies in question had been contested before a court having jurisdiction in the matter.

In regard to the first submission alleging an infringement of Article 190 of the Treaty, the Commission relies on all the arguments already presented in support of its application on the procedural issue to the effect that, since the letter in question is not and cannot be assimilated to a decision, it obviously cannot be argued that Article 190 requires a statement of the reasons on which such a letter was based.

With reference to the second submission alleging breach of the principle of legality and the principle of proper administration of justice, Tradax's arguments should be rejected for the reasons which justify the rejection of the arguments made in the second submission in support of the claim based on Article 175, since the sending of the letter of 14 December 1981 did not entail a breach of those principles either.

As to the third submission alleging breach of the principles of legal certainty and the principle of the protection of legitimate expectation, the Commission relies on its arguments with regard to the third submission in support of the claim for failure to act.

With regard to the claim based on Articles 178 and 215 of the Treaty, the Commission repeats that as it has already clearly shown its action or inaction did not constitute a breach of any of the principles referred to above or indeed of any superior rule of law; this is sufficient for the dismissal as unfounded of Tradax's claim based on Articles 178 and 215 of the Treaty. Tradax's view that the Commission can commit a wrongful act or omission even where it acts legally is diametrically opposed to the case-law of the Court which includes the illegality of the conduct alleged against the institutions among the conditions which must be met before the Community can become liable.

In regard to the damage alluded to Tradax gives no specific fact or argument to show that it has suffered any real damage whatever; nor does it give any information concerning the method of calculation of the damage alleged.

Finally, the causal link between the conduct in question and the damage alleged is in no way proved; on the contrary, it is Tradax's own attitude which has brought upon it the damage which it is said to have suffered. In those circumstances Tradax's claim on the basis of Articles 178 and 215 should be dismissed as unfounded.

IV — Oral procedure

The parties presented oral argument at the sitting on 22 September 1983.

The Advocate General presented his opinion at the sitting on 27 October 1983.

Decision

1. By an application lodged at the Court Registry on 15 February 1982 Tradax Graanhandel BV brought an action seeking primarily a declaration pursuant to the third paragraph of Article 175 of the EEC Treaty that the Commission had, in breach of the Treaty and despite having been requested by a letter of 24 November 1981 so to do, failed to provide the applicant with the data on which it based us calculation of the levies applicable to maize imports for the period 28 to 31 October 1980 inclusive.

2. In the alternative the action seeks to have declared void, pursuant to the second paragraph of Article 173 of the Treaty, the Commission's letter of 14 December 1981 signed by Mr Williamson, at that time Deputy Director General for Agriculture, in which the Commission, in reply to Tradax's letter of 24 November 1981, informed it that cif prices had been determined in strict compliance with the provisions applicable.

3. Finally, whatever the result of those two claims, the action seeks damages pursuant to the second paragraph of Article 215 of the EEC Treaty, in the amount of one florin, in compensation for damage caused to the applicant by the Commission's refusal to supply it with the requested data on which the calculation was based.

Facts of the dispute

4. Article 13 (1) of Regulation No 2727/75 of the Council of 29 October 1975 on the common organization of the market in cereals (Official Journal L 281, p. 1) which replaced Regulation No 120/67 of 13 June 1967 (Official Journal, English Special Edition 1967, p. 33) provides for a levy to be charged on the import of certain products listed in Article 1, equal for each product to the threshold price less the cif price. Article 1 (2) and (3) contains provisions regarding the calculation of the cif prices. Paragraph (4) gives the Commission the power to adopt detailed rules for the application of that article in accordance with the so-called Management Committee procedure. Finally, paragraph (5) provides that the Commission is to fix the levies mentioned in that article.

5. Pursuant to Article 13 (4) of Regulation No 120/67, which is identical in wording to Article 13 (4) of Regulation No 2727/75, on 23 June 1967 the Commission adopted Regulation No 156/67 on the method of determining cif prices and levies for cereals, flour, groats and meal (Official Journal, English Special Edition 1967, p. 111). That regulation remained applicable, with some amendments, after the entry into force of Regulation No 2727/75. The basic rule laid down in Article 1 (1) of the regulation is that “when fixing the cif prices ... the Commission shall take into account all offers made on the world market of which it has knowledge through Member States or by its own means and the quotations of the main international commercial exchanges ... [The Commission] shall fix the cif prices on the basis of the most favourable purchasing opportunities of which it has knowledge ...”. Article 1 (2) allows the Commission to exclude certain offers, for example those which refer only to a small quantity unrepresentative of the market or where the trend of prices in general or the information available makes it probable that the prices in question are not representative of the market.

6. Exercising the power conferred upon it by Article 13 (5) of Regulation No 2727/75 the Commission by various regulations, namely Regulations Nos 2746/80 of 28 October 1980 (Official Journal L 284, p. 15), 2763/80 of 29 October 1980 (Official Journal L 287, p. 3), 2780/80 of 30 October 1980 (Official Journal L 288, p. 1) and 2799/80 of 31 October 1980 (Official Journal L 292, p. 1), fixed the import levies applicable in particular to cereals for the period 28 to 31 October 1980 inclusive. The recitals in the preambles to the various regulations refer to the application of the rules on offer prices and quotations laid down in Commission Regulation No 2035/80 of 31 July 1980 (Official Journal L 200, p. 1). In its recitals, that regulation itself refers to even more detailed rules for the calculation of levies.

7. Tradax Graanhandel BV was dissatisfied with the way in which the Commission had fixed the cif prices on the basis of which levies on cereals had been calculated for that period, and in a letter of 12 October 1981 it asked the Commission to indicate the precise data which it had taken into account in fixing the cif prices between 28 and 31 October inclusive and to allow it to inspect at the Commission's premises the documents used in calculating those prices, but did not state that it had imported maize during that period and had paid import levies which it considered clearly too high, or that it had instituted, or intended to institute, an action in a national court with reference to the fixing of the levies.

8. Tradax received no reply to that letter, and by letter of 24 November 1981 it called upon the Commission pursuant to the second paragraph of Article 175 of the EEC Treaty to define its position on the request which it had made, adding that its request was in accordance with the case-law of the Court as set out in the judgment of 1 December 1965 Case 16/65, {Schwarze, [1965] ECR 877).

9. By letter of 14 December 1981 the Deputy Director General for Agriculture, referring to the letters of 12 October and 24 November 1981, stated in reply that the cif prices for 28, 29, 30 and 31 October 1980 had been “determined in strict compliance with the provisions applicable”.

10. Tradax considered that an inadequate reply, and on 15 February 1982 brought an action based, as is stated above, on Articles 175, 173 and 215 of the EEC Treaty.

Admissibility

11. The Commission disputes the admissibility of each of the claims. In regard to the alleged failure to act it states that the claim is inadmissible inter alia because no rule of law required it in such circumstances to provide the information requested. The claim that the letter of 14 December 1981 should be declared void should be dismissed in particular because the letter does not meet the conditions necessary for it to be considered a decision within the meaning of Article 173 of the EEC Treaty. Finally, with reference to the claim based on Article 215 of the Treaty, one of the reasons for its inadmissibility is the fact that the applicant has not established the existence of a manifest and serious wrongful act or omission or a sufficiently serious breach of a superior rule of law.

12. In view of the close relationship between the question of admissibility of the various claims and the substance of the action, it is appropriate to proceed directly to consideration of the substance of the case.

Substance

13. In support of the action based on Articles 175, 173 and 215 of the EEC Treaty the applicant argues that according to the principles of good administration, of legality and of the protection of the rights of those concerned, of legal certainty and of the protection of legitimate expectation the Commission was obliged to provide it with the information requested. In failing or refusing to define its position on the request for communication of the precise data which it had used in fixing the cif prices for the period in question the Commission breached those principles and committed a wrongful act or omission.

14. In accordance with the principle of good administration which is common to the laws of the Member States and is therefore part of Community law, the applicant says that persons concerned have a right to information or at least a right of access to administrative documents which affect them. The principles of legality and of the protection of the rights of those concerned require the administration to reply to legitimate requests made to it and, with a view to protection by the courts of the interests of the undertaking concerned, to place at its disposal all the technical data on which it has relied. The applicant refers to the judgment of 1 December 1965 referred to above. Finally, the principles of legal certainty and of the protection of legitimate expectation imply that persons concerned should have the opportunity of checking that the administration has made no errors of fact or of law in adopting decisions which affect them and hence of obtaining the information necessary for that purpose.

15. The Commission argues that the letter of 14 December 1981 did not amount to a decision refusing to provide the information requested by the applicant, lhe letter left open the question whether the Commission would comply with the apphcant s request, and left the applicant entirely at liberty to raise the matter in greater detail.

16. The Commission maintains that no obligation, be it general or limited to the special circumstances of this case, to provide such information can be deduced from the ru es on the fixing of cereal levies, the principles relied on by the apphcant or the case-law of the Court. The absence of any reference in the regulations concerned to such an obligation is deliberate. It reflects the concern of the Community legislature for the general obligation of professional secrecy by which the Community is bound in this area, an obhgation designed to protect the business secrets of undertakings Furthermore, regard being had to the number of tasks to be performed by the Commission in this area and the very limited time available to it for their accomplishment, the imposition of such an obligation would make the fulfilment of its duties particularly difficult.

17. The Commission submits that the principle of good administration docs not apply m areas in winch the Commission acts not as an administration, adopting measures of management, but as a legislature, making law. To lay a general obligation of that kind on the Commission would moreover prevent all proper management. The principles of legal certainty and of the protection of legitimate expectation have no bearing in this case because the applicant has not shown in what way the action or inaction of the Commission could have harmed a “legally established position”.

18. Finally, with regard to the principles of legality and of protection of the rights of interested parties, the Commission emphasizes that the Court's judgment of 1 December 1965 (Case 16/65, Schwarze, [1965] ECR 877), relied on by the applicant, does not imply the existence of a general duty for the Commission to divulge data used in calculating levies, because the Court, in giving a decision on the necessary degree of detail in the statement of the reasons on which a measure fixing free-at-frontier prices was based, held that the administration was entitled to “confine itself to setting out in a general form the essential factors to and the procedure which formed the background to its evaluation of the facts, without its being necessary to specify the facts themselves”, and that “the need to protect the parties to whom the decision is addressed and nationals of Member States affected by the decision, as also the need for proper judicial review, is sufficiently met as long as the Commission ... puts at the disposal of the parties the technical data used by it in fixing the free-at-frontier prices whenever the decision is challenged before a court having the appropriate jurisdiction”.

19. The Commission argues that observation of the principles of legality and of protection of the rights of interested parties requires only that in certain well-defined circumstances, and in particular when the dispute has already been submitted to a court having the appropriate jurisdiction, the information be provided in order that proper judicial review may be carried out. It notes in this respect that the applicant did not mention the existence of such circumstances in its letter of 12 October 1981 or in that of 24 November 1981.

20. The first question to be resolved is whether the letter of 14 December signed by Mr Williamson must be regarded as the definition by the Commission of its position in response to the demand set out in the letter of 24 November 1981. The Commission's argument to the effect that the reply should be treated as an invitation to revert to the request cannot be accepted. In this respect it cannot be denied that, in response to a request for access to the figures on which the cif prices were based and for permission to consult at the Commission's premises the documents used, a reply restricted to the statement that the cif prices had been determined in strict compliance with the provisions applicable amounted to a refusal.

21. It is therefore necessary to consider whether the refusal was justified or whether, on the contrary, the Commission was obliged to furnish the applicant with the data requested and to allow it to examine the relevant documents at the Commission's premises. It should first be emphasized that, as the Commission rightly notes, in its judgment of 1 December 1965 referred to above the Court found that, in the statement of the reasons on which a measure fixing free-at-frontier prices is based, the administration is entitled to confine itself to setting out in a general form the essential factors and the procedure which formed the background to its evaluation of the facts, without its being necessary to specify the facts themselves. When the fixing of free-at-frontier prices must be effected within a short time, to require the administration to set out in detail, in the statement of the reasons on which the measure is based, all the data on which the calculation was based would go beyond what may reasonably be demanded. The Court therefore held that the need to protect persons concerned and the need for proper judicial review would be met if the Commission put at the disposal of the parties the technical data used by it in fixing the free-at-frontier prices whenever that decision was challenged before a court having jurisdiction in the matter.

22. It should however be pointed out that it would be consistent with good administration for the Commission periodically to publish for the information of the traders concerned the main data taken into account in fixing cif prices. Such an arrangement for the supply of periodic information does not however include a duty to reply to individual requests such as that made by the applicant or to allow inspection at the Commission's premises of all the data which it has assembled.

23. In those circumstances it cannot be held that the Commission is under a general duty to provide any trader who so requests with the data on which the calculation of the cif prices was based.

24. Similarly, it cannot be stated that the principles of legal certainty and of the protection of legitimate expectation may entail the right for any person concerned, as the applicant claims, to be enabled to check whether the legislation in force has been correctly applied. Such a review would be within the jurisdiction of any court called upon to apply the regulations.

25. It follows from the considerations set out above that the Commission had in the present case no duty to provide, at the applicant's request, the data on the basis of which the cif prices were fixed.

26. All the claims made by the applicant must therefore be dismissed.

27. The application must therefore be dismissed in its entirety.

Costs

28. Article 69 (2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs. As the applicant has failed in its submissions it must be ordered to pay the costs.

On those gronds, THE COURT (First Chamber) hereby:

1 Dismisses the application in its entirety;

2 Orders the applicant to pay the costs.