CASE LAW: Case C-97/91, Oleificio Borelli Spa v. Commission of the European Communities, December 3, 1992. Judicial Protection; Binding Preparatory Act of a Member State; Obligation of the National Judiciary

1 Colum. J. Eur. L. 107 (1994)

Jan Vanhamme. Researcher, Institute for European Law, Catholic University, Leuven, Belgium.

In 1988, the Italian company Oleificio Borelli applied for financial assistance from the European Agricultural Guidance and Guarantee Fund (EAGGF)1 for building an oil mill in the region of Liguria. Council Regulation 355/77, which sets the rules for such applications, makes the award of financial assistance from the Fund conditional upon a favorable opinion by the competent national authority. The Regione Liguria initially supported the application, but the EC Commission, which has authority for making the final decisions with respect to the EAGGF, gave priority to other applications. When Borelli’s application came up again in the 1990 competition, the Regione Liguria issued a negative opinion. The Commission was thus prevented from awarding Borelli the assistance it sought.

Borelli then brought an action for annulment in the Court of Justice, based on Article 173 of the Treaty, challenging both the final decision of the Commission and the Member State act which had precipitated that decision. Borelli also sought damages from the Commission and the Regione Liguria under Article 215 of the Treaty.” Since Articles 173 and 215 refer exclusively to acts of the Community institutions, the Court considered itself incompetent to hear the actions in so far as they had been brought against the Regione Liguria. When the case proceeded to the pleadings and judgment, the Commission was accordingly the sole defendant in the action.