61995B0195

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Actions against Community institutions for failure to act ° Time-limits ° Time-barred ° Possibility of relying on the principle of the protection of legitimate expectations ° Condition

(EC Treaty, Art. 175)

In order to be able to rely on the principle of the protection of legitimate expectations so as to escape the time-bar resulting from the failure to observe the time-limit laid down by Article 175 of the Treaty for bringing an action for a declaration of failure to act, an applicant must be able to show hopes based on specific assurances given to him by the Community administration. Neither public statements of a general nature made by a member of the Commission nor repeated contacts between the person concerned and the Commission after it had been given formal notice constitute such specific assurances.

° 65260 °

In Case T-195/95,

Guérin Automobiles, a company incorporated under French law, in liquidation, with its registered office at Alençon (France), represented by Jean-Claude Fourgoux, of the Paris Bar and of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Pierrot Schiltz, 4 Rue Béatrix de Bourbon,

applicant,

v

Commission of the European Communities, represented by Francisco Enrique González Díaz, of its Legal Service, and Guy Charrier, a national civil servant on secondment to the Commission, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of the Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for a declaration that the Commission has failed to issue a statement of objections to Nissan France SA and, in the alternative, for the award of compensation,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Second Chamber, Extended Composition),

composed of: H. Kirschner, President, B. Vesterdorf, C.W. Bellamy, A. Kalogeropoulos and A. Potocki, Judges,

Registrar: H. Jung,

makes the following

Order

Facts

1 The applicant, a buyer and seller of motor vehicles which was put in judicial liquidation (liquidation judiciaire) by judgment of 22 May 1995, lodged a complaint with the Commission, received on 6 June 1994, against Nissan France SA, importer of Nissan vehicles and a subsidiary of the Japanese manufacturer.

2 In that complaint the applicant stated that it had been a dealer of Nissan France, which, at the beginning of 1991, had unilaterally terminated its dealership agreement with effect from the beginning of 1992. Thereafter, Nissan France "continued to invoke its exclusive distribution system in order to refuse any compensation for Mr Guérin, to discriminate in favour of another dealer and to refuse to sell to him on several occasions". The applicant then challenged the compatibility of the standard dealership agreement used by Nissan France with Commission Regulation (EEC) No 123/85 of 12 December 1984 on the application of Article 85(3) of the EEC Treaty to certain categories of motor vehicle distribution and servicing agreements (OJ 1985 L 15, p. 16). The applicant claimed that the effects of the contract precluded its exemption under Article 85(3) of the Treaty and stated that it "left the matter to the Commission, which has power to rule on Nissan' s practices, since Article 10 of Regulation No 123/85 enables it to withdraw the exemption". To that end, it criticized several clauses in the standard dealership agreement or practices of Nissan France following from it and declared that it based its complaint on infringement of Article 85(1) of the Treaty.

3 By letter of 30 June 1994 the Commission sent a copy of that complaint to Nissan France and requested it to comment on the matters alleged; on the same day, the Commission informed the applicant that it had done so. Two months later Nissan France sent its reply to the Commission, which communicated it to the applicant in September 1994.

4 By letter of 21 February 1995 the applicant informed the Commission of its observations on Nissan France' s reply. It considered in particular that "a comparison of the evidence ... in support of his complaint, an analysis of the two versions of the contract and Nissan' s response were already sufficient to enable the Commission to issue a statement of objections". After commenting in detail on Nissan France' s replies, the applicant stated that it "once again requests the Commission to issue Nissan with a statement of the objections which are clearly evident from a study of the file" and finished by stating that it "continued to be at your disposal".

5 The Commission did not reply to that letter.

Procedure before the Court and forms of order sought

6 Those were the circumstances in which, by application received at the Registry of the Court of First Instance on 17 October 1995, the applicant brought the present action.

7 By separate document lodged on 4 December 1995 at the Registry of the Court, the Commission raised a plea of inadmissibility on the basis of Article 114(1) of the Rules of Procedure. The applicant lodged its observations regarding that plea on 8 January 1996.

8 In its application the applicant claims that the Court should:

° declare that the Commission has failed to act;

° in the alternative, on the basis of Article 215 of the EC Treaty, hold that the Commission has thereby incurred non-contractual liability to the applicant and must compensate it for damage calculated at FF 1 577 188.53;

° order the Commission to pay the costs.

9 In its plea of inadmissibility the Commission contends that the Court should:

° dismiss the application as inadmissible;

° order the applicant to pay the costs.

10 In its observations on the plea of inadmissibility the applicant considers that, after rejecting the plea, the Court can rule on its claim that the Commission has failed to act on the claim for compensation.

Admissibility

Arguments of the parties

The claim that the Commission failed to act

11 The Commission considers that the application is inadmissible, since it was brought in breach of the conditions and time-limits laid down in Article 175 of the EC Treaty. The applicant' s letter of 21 February 1995 cannot be regarded as a "call to act" for the purposes of that article, since its purpose was essentially to reply to the arguments which Nissan France had submitted in its reply to the Commission. The letter even contained the expression "remaining at your disposal", which shows that, in the applicant' s view, it was necessary to continue cooperation with the Commission. The Commission concludes from this that the letter of 21 February 1995 did not clearly show that, if it failed to take action within the period foreseen, an action alleging its failure to act would be brought against it.

12 The Commission adds that in any event, even if that letter could be regarded as formal notice, the present action was brought almost eight months later. It follows from Article 175 of the Treaty that if the institution concerned has not defined its position within a period of two months of being given formal notice ° which the Commission does not dispute in the present case ° an action for failure to act may be brought against that institution only within a further period of two months. In the present case that further period would have expired in April 1995 and the applicant has not proved the existence of unforeseeable circumstances or of force majeure for the purposes of the second paragraph of Article 42 and the first paragraph of Article 46 of the Protocol on the Statute of the Court of Justice of the EC.

13 The applicant replies that Article 175 of the Treaty does not require a call to act to be in any particular form. The call must simply be clear enough to ensure that the Commission cannot misunderstand its purport; there can be no objection to its being framed in polite terms. In the present case the Commission could have been in no doubt that the applicant would regard its failure to adopt a decision as a failure to act which could lead to proceedings.

14 As regards the argument that the action is inadmissible because of the date on which it was brought, the applicant observes that its frequent contacts with the Commission after the letter of formal notice are sufficient to rule out any plea of a time-bar, since the applicant had grounds for believing that the problem which it had referred to the Commission was going to receive a favourable solution (see Case C-107/91 ENU v Commission [1993] ECR I-599). It considers that, by virtue of the principle of the protection of legitimate expectations, a complainant may delay bringing an action if he has been given grounds to believe that his complaint will ultimately be dealt with because an intention or desire to do so has been expressed in the name of the Commission. In that context, it refers to the public statements made by Mr Van Miert, Member of the Commission responsible for competition matters, in particular in the Journal de l' Automobile of 13 January 1995 ("I intend to act rapidly and with absolute determination. There will be no leniency ...") and to his position in reply to the resolution of the Parliament of 16 March 1995 on the Commission' s Twenty-third Report on Competition Policy ("Consolidation of the internal market requires the Commission and the Member States to ensure strict observance of the existing rules [on competition]"). In the present case the Commission has recognized in its plea of inadmissibility that the applicant demonstrated a spirit of cooperation and was entitled to believe that cooperation would continue in such a way as to advance the matter, which justified its waiting.

15 The applicant also claims that the Court can find in any event that service of the action by the Registry on the Commission constitutes unambiguous notice of a call to act, to which the originating application is comparable. Finally, it states that, since the Commission has shown no intention of terminating its failure to act, it has for all purposes sent a further formal letter of notice to it by letter of 2 January 1996, intended to lead to a further action for failure to act.

The claim for compensation

16 The Commission makes no observations on this claim. The applicant states that the action for damages is independent of the action for failure to act. The bringing of an action alleging liability on the part of an institution, especially the Commission, directly enables the Court of First Instance to carry out a legal appraisal of the facts and to determine that those facts constitute misconduct which is sufficiently serious to render the institution liable in damages. Since the Commission does not deny that it failed to define its position within the period prescribed, the applicant submits that it clearly failed in its obligation to investigate the complaint fully and coherently and to state the reasons for its failure to deal rigorously with the matter.

Findings of the Court

17 First of all the Court observes that, pursuant to Article 114(3) of the Rules of Procedure, when the defendant raises a plea of inadmissibility the remainder of the proceedings shall be oral, unless the Court decides otherwise. As regards the action for a declaration of failure to act which has been brought in the present case, the Court considers that it has been sufficiently informed by its examination of the documents before it. It is not therefore necessary to open the oral procedure in that regard.

18 As regards the periods laid down by the second paragraph of Article 175 of the Treaty, the Court finds that the dispatch by the applicant of its letter of 21 February 1995 ° even assuming that it could be regarded as a call to act within the meaning of the second paragraph of Article 175 of the Treaty ° was followed by a failure by the Commission to define its position vis-à-vis the applicant, which continued until his action was brought on 17 October 1995. Under the second paragraph of Article 175 of the Treaty the action for a declaration of failure to act should have been brought within four months of the dispatch of that letter, that is, at the latest, by the end of June 1995. It follows that the action has been brought manifestly outside that period.

19 Although the Commission referred in its plea of inadmissibility expressly to the possibility of unforeseeable circumstances or force majeure or valid reasons which might have accounted for the non-observance of the time-limit, the applicant did not invoke any such grounds in its observations on that plea.

20 Inasmuch as the applicant refers to public statements by Mr Van Miert or to frequent contacts with the Commission after giving formal notice to it, which it claims gave rise to a legitimate expectation, so that it could take the view that it was entitled to delay in bringing its action, it should be observed that the notion of legitimate expectations presupposes that the person concerned entertains hopes based on specific assurances given to him by the Community administration (Case T-465/93 Consorzio Gruppo di Azione Locale "Murgia Messapica" v Commission [1994] ECR II-361, paragraph 67). Having regard to the general nature of the public statements in issue, there is no question, in the present case, of specific assurances having being given by the Commission concerning the applicant' s particular file, which could justify the failure to observe the time-limit referred to above. Moreover, any contacts between the Commission and the applicant after the formal notice to the Commission do not obviate the need to comply with the time-limits set by Article 175 of the Treaty.

21 As regards the applicant' s reference to ENU v Commission, cited above (paragraphs 23 and 24), it is sufficient to point out that the "reasonable period of time" which was in issue in that case was not the period for bringing an action laid down in the second paragraph of Article 175 of the Treaty, the period of four months having being scrupulously observed in that case. The case concerned rather the period within which a matter must be referred to the Community institution concerned, before valid notice of its failure to act can be given. In view of that, the argument which the applicant seeks to base on the judgment in ENU v Commission must be regarded as irrelevant.

22 Finally, inasmuch as the applicant claims that the notification of the action itself constitutes a call to act, so that the requirements for the application of Article 175 of the Treaty are satisfied in the present case, it should be noted that both the wording and the scheme of that provision preclude such an argument. Since the conditions governing the admissibility of an action are a matter of public policy, the Community judicature cannot give them a wide interpretation in the sense for which the applicant contends and admit a premature action.

23 It follows that the claim for a declaration of failure to act must be dismissed as inadmissible.

24 On the other hand, a decision on the admissibility of the claim for compensation should be reserved for the final judgment.

On those grounds,

THE COURT OF FIRST INSTANCE (Second Chamber, Extended Composition)

hereby orders:

1. The application is dismissed as inadmissible in so far as it seeks a declaration of the Commission' s failure to act.

2. A decision on the Commission' s plea that the claim for compensation is inadmissible is reserved for the final judgment.

3. Costs are reserved.

Luxembourg, 11 March 1996.