Court of Justice of the European Communities (including Court of First Instance Decisions)

1 . PROCEDURE - EUROPEAN ECONOMIC COMMUNITY - NON-CONTRACTUAL LIABILITY - REQUEST FOR DECLARATION - IMMINENT AND FORESEEABLE DAMAGE - DAMAGE NOT YET ASSESSABLE - APPLICATION TO THE COURT - ADMISSIBILITY
( EEC TREATY , ARTICLE 215 )
2 . AGRICULTURE - PRODUCTS SUBJECT TO A SINGLE PRICE-SYSTEM - EXPORT REFUNDS - VARIABILITY - PAYMENT - CONDITIONS

1 . ARTICLE 215 OF THE TREATY DOES NOT PREVENT THE COURT FROM BEING ASKED TO DECLARE THE COMMUNITY LIABLE FOR IMMINENT DAMAGE FORESEEABLE WITH SUFFICIENT CERTAINTY EVEN IF THE DAMAGE CANNOT YET BE PRECISELY ASSESSED .

2 . NEITHER THE PUBLICATION BY THE COUNCIL OF REGULATION NO 876/68 NOR THE BEHAVIOUR OF THE COMMISSION AS REGARDS THE GRANT OF VARIABLE EXPORT REFUNDS IS SUFFICIENT TO MAKE THE COMMUNITY LIABLE AND TO REQUIRE IT TO MAKE GOOD THE DAMAGE SUFFERED BY THE APPLICANT SINCE THE COMPETENT INSTITUTION IS ONLY REQUIRED TO GRANT VARIABLE REFUNDS IF THE GOODS ARE IN FREE CIRCULATION IN THE TERRITORY OF DESTINATION .

IN CASE 44/76
MILCH- , FETT- UND EIER-KONTOR GMBH , 72-74 AMANDASTRASSE , 2000 HAMBURG 50 , REPRESENTED BY ITS MANAGERS , JOACHIM BRANDENBURG AND FRIEDRICH SCHULZ , AND ASSISTED BY PETER WENDT AND HANS-E . HEYN , OF THE HAMBURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF FELICIEN JANSEN , HUISSIER , 21 RUE ALDRINGEN ,
APPLICANT ,
V COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , BERNARD SCHLOH , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF J . NICOLAAS VAN DEN HOUTEN , DIRECTOR OF THE LEGAL DEPARTMENT OF THE EUROPEAN INVESTMENT BANK , 2 PLACE DE METZ ,
AND
COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , PETER KALBE , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , LEGAL ADVISER TO THE COMMISSION , BATIMENT JEAN MONNET , KIRCHBERG ,
DEFENDANTS ,

APPLICATION FOR DAMAGES UNDER ARTICLE 215 OF THE EEC TREATY ,

1 THE PRESENT APPLICATION FOR COMPENSATION , WHICH WAS LODGED ON 12 MAY 1976 , MUST BE REGARDED AS DIRECTED AGAINST THE EUROPEAN ECONOMIC COMMUNITY REPRESENTED BY THE COUNCIL AND THE COMMISSION PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY .

2 ON 2 SEPTEMBER 1970 THE APPLICANT OBTAINED EXPORT CERTIFICATES FOR MOROCCO , ALGERIA OR TUNISIA FIXING IN ADVANCE REFUNDS FOR CERTAIN QUANTITIES OF BUTTER OBTAINED FROM THE GERMAN INTERVENTION AGENCY , FOR THE MARKETING OF WHICH IT HAD ENTERED INTO A POOLING AGREEMENT ( ' THE BUTTER POOL ' ).

ON THE BASIS OF THOSE CERTIFICATES THE APPLICANT SOLD TO A BELGIAN UNDERTAKING , A PARTY TO THE POOLING AGREEMENT , 2 000 TONNES OF BUTTER FOR DELIVERY TO MOROCCO .

3 THE COMPETENT CUSTOMS OFFICE INITIALLY PAID THE AMOUNT OF THE REFUND FIXED IN ADVANCE FOR PART OF THE SAID EXPORTATION BUT SUBSEQUENTLY REJECTED THE CLAIMS FOR PAYMENT OF THE REFUNDS FOR THE REMAINDER AND DEMANDED PROOF OF MARKETING IN MOROCCO .

SINCE IT DID NOT RECEIVE SUCH PROOF THE SAID CUSTOMS OFFICE RECLAIMED FROM THE APPLICANT THE AMOUNT WHICH HAD BEEN PAID TO IT .

4 THESE EVENTS HAVE GIVEN RISE TO A NUMBER OF CASES BEFORE THE FINANZGERICHT HAMBURG , ONE OF WHICH LED TO A REQUEST FOR A PRELIMINARY RULING ( JUDGMENT OF 2 JUNE 1976 IN CASE 125/75 ( 1976 ) ECR 771 ).

DURING THE COURSE OF THAT APPLICATION FOR A PRELIMINARY RULING THE APPLICANT SUBMITTED THIS APPLICATION AFTER LODGING WITH THE COMMISSION AN INITIAL REQUEST , IN THE FORM OF A TELEX MESSAGE , ON 16 JANUARY 1976 .
5 IN THIS APPLICATION THE APPLICANT CLAIMS DAMAGES FOR THE INJURY OCCASIONED IT BY THE BEHAVIOUR OF THE COMMISSION WHICH , THROUGH ITS ' COMMUNICATIONS ' FROM 1967 ONWARDS , LED THE DEFENDANT TO ASSUME THAT PAYMENT OF THE REFUNDS FIXED IN ADVANCE DEPENDED SOLELY UPON THE CONDITION OF THE GOODS ' HAVING ACTUALLY ARRIVED IN THE TERRITORY OF MOROCCO .

THE APPLICATION IS ALSO DIRECTED AGAINST THE COUNCIL ON THE GROUND THAT IT FAILED TO ESTABLISH CLEARLY THE LEGAL SITUATION REGARDING EXPORT REFUNDS AND THAT , CONTARY TO ARTICLE 152 OF THE EEC TREATY , IT OMITTED TO REQUEST THE COMMISSION TO SUBMIT TO IT APPROPRIATE RULES .

6 THE MAIN CLAIM IS FOR :
- PAYMENT BY THE DEFENDANTS OF DM 1 355 900 CONSTITUTING THE REFUND REFUSED TO THE APPLICANT BY THE CUSTOMS OFFICE TOGETHER WITH INTEREST FROM 1 MAY 1971 SINCE THE REFUND SHOULD HAVE BEEN PAID AT THE LATEST ON THE DAY BEFORE THAT DATE ; AND
- DISCHARGE BY THE DEFENDANTS OF THE CUSTOMS OFFICE ' S CLAIMS FOR REPAYMENT OF THE SUM DISBURSED , NAMELY DM 823 417.75 , TOGETHER WITH INTEREST FROM 5 FEBRUARY 1971 , THE DEFENDANTS PAYING THESE SUMS ON BEHALF OF THE APPLICANT TO THE SAID CUSTOMS OFFICE .

IT IS CLAIMED IN THE ALTERNATIVE THAT THE DEFENDANTS SHOULD PAY THE LAWYERS ' FEES ALREADY INCURRED ( DM 72 922.96 TOGETHER WITH INTEREST FROM THE DATE OF COMMENCING THE PROCEEDINGS ), THE COURT FEES ( DM 28 145.60 ) TOGETHER WITH LEGAL FEES ( DM 551.50 ) AND THAT IN ADDITION THE COURT SHOULD DECLARE THAT THE DEFENDANTS ARE OBLIGED TO COMPENSATE THE APPLICANT FOR ALL DAMAGE WHICH IT HAS SUFFERED OR WILL SUFFER ON ACCOUNT OF ITS ASSUMPTION DURING THE PERIOD FROM AUGUST 1970 TO MARCH 1971 THAT PAYMENT OF THE REFUNDS DEPENDED SOLELY ON THE BUTTER ' S HAVING ACTUALLY ARRIVED IN MOROCCO .

ADMISSIBILITY AND THE OBJECTION THAT THE APPLICATION IS OUT OF TIME
7 THE COMMISSION DISPUTES THE ADMISSIBILITY OF THE REQUESTS FOR A DECLARATION ON THE GROUNDS THAT THE NATURE OF ANY DAMAGE SUFFERED , RELATING EXCLUSIVELY TO THE 2 000 TONNES OF BUTTER IN DISPUTE , MUST BE KNOWN WITH CERTAINTY AND THAT IF THE REQUESTS RELATE TO OTHER EXPORTS THE APPLICATION IS LACKING IN PRECISION .

THE APPLICANT REPLIES THAT THE SAID CLAIMS REFER SOLELY TO THE 2 000 TONNES IN DISPUTE BUT THAT , IN THE CASES PENDING BEFORE THE NATIONAL COURT , THERE ARE OTHER COURT AND LAWYERS ' FEES WHICH CANNOT YET BE ASSESSED .

8 ARTICLE 215 OF THE TREATY DOES NOT PREVENT THE COURT FROM BEING ASKED TO DECLARE THE COMMUNITY LIABLE FOR IMMINENT DAMAGE FORESEEABLE WITH SUFFICIENT CERTAINTY EVEN IF THE DAMAGE CANNOT YET BE PRECISELY ASSESSED .

THE OBJECTION OF INADMISSIBILITY IS THUS UNFOUNDED .

9 THE COUNCIL AND THE COMMISSION MAINTAIN THAT PURSUANT TO ARTICLE 43 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC CLAIMS FOR COMPENSATION ARISING OUT OF ANY ACTS WHATEVER ' FROM THE YEARS 1967 TO 1970 ' WERE OUT OF TIME AT THE LATEST BY THE END OF 1975 .
10 BEFORE CONSIDERING WHETHER THIS OBJECTION IS WELL FOUNDED IT IS APPROPRIATE TO EXAMINE WHETHER THE COMMUNITY IS LIABLE .

SUBSTANCE
11 THE MAIN COMPLAINT WHICH THE APPLICANT PUTS FORWARD AGAINST THE DEFENDANTS AMOUNTS TO CLAIMING THAT REGULATION NO 876/68 OF THE COUNCIL OF 28 JUNE 1968 LAYING DOWN GENERAL RULES FOR GRANTING EXPORT REFUNDS ON MILK AND MILK PRODUCTS AND CRITERIA FOR FIXING THE AMOUNT OF SUCH REFUNDS ( OJ , ENGLISH SPECIAL EDITION , 1968 , ( I ), L 155 , P . 234 ) AND REGULATION NO 1041/67 OF THE COMMISSION OF 21 DECEMBER 1967 ON DETAILED RULES FOR THE APPLICATION OF EXPORT REFUNDS ON PRODUCTS SUBJECT TO A SINGLE PRICE-SYSTEM ( OJ , ENGLISH SPECIAL EDITION , 1967 , L 314 , P . 323 ) MAKE PAYMENT OF THE ' VARIABLE ' REFUND DEPEND SOLELY ON THE REQUIREMENT OF PROOF OF ARRIVAL IN THE TERRITORY OF DESTINATION .

12 THE REASON WHY THE REFUND VARIES ACCORDING TO THE DESTINATION OF THE PRODUCTS IS , ACCORDING TO THE FOURTH RECITAL OF THE PREAMBLE TO REGULATION NO 876/68 THAT ' MARKETS IN THE COUNTRIES OF DESTINATION ARE AT ( VARYING ) DISTANCES FROM COMMUNITY MARKETS AND SPECIAL CONDITIONS APPLY TO IMPORTS IN CERTAIN COUNTRIES OF DESTINATION ' .

IT FOLLOWS FROM ARTICLE 4 AND THE RECITALS OF THE PREAMBLE TO THE AFOREMENTIONED REGULATION THAT THE AMOUNT OF THE REFUND DEPENDS ON THE CONDITIONS OF THE MARKET ON WHICH THE PRODUCT IN QUESTION IS TO BE PLACED AND AS A RESULT ON THE ACTUAL IMPORT OF THE PRODUCT INTO THE GIVEN COUNTRY OF DESTINATION .

13 IN THE ABOVEMENTIONED JUDGMENT OF 2 JUNE 1976 THE COURT RULED THAT ' IF IT SUFFICED FOR THE GOODS SIMPLY TO BE UNLOADED TO QUALIFY FOR PAYMENT OF THE REFUND AT A HIGHER RATE , THE RAISON D ' ETRE OF THE SYSTEM OF VARYING THE REFUND WOULD BE DISREGARDED AND ABUSE WOULD BE MADE POSSIBLE TO THE DETRIMENT OF COMMUNITY INTERESTS ' AND ' IT IS THEREFORE NECESSARY FOR THE GOODS TO HAVE BEEN CLEARED THROUGH CUSTOMS AND PUT INTO FREE CIRCULATION AT THE DESTINATION ' .

14 ACCORDINGLY IT CANNOT BE ALLEGED THAT THE COUNCIL FAILED TO ESTABLISH CLEARLY THE LEGAL SITUATION REGARDING VARIABLE REFUNDS IN REGULATION NO 876/68 OF THE COUNCIL AND THIS FACT ALONE MEANS THAT THE PROCEEDINGS AGAINST THE COUNCIL ARE UNFOUNDED .

15 PURSUANT TO ARTICLE 4 OF REGULATION NO 1041/67 OF THE COMMISSION MEMBER STATES MAY ' REQUIRE , AS A CONDITION FOR PAYMENT OF THE REFUND , PROOF NOT ONLY THAT THE PRODUCT HAS LEFT THE GEOGRAPHICAL TERRITORY OF THE COMMUNITY , BUT ALSO THAT THE PRODUCT IN QUESTION HAS BEEN IMPORTED INTO A THIRD COUNTRY . . . ' .

ARTICLE 8 ( 1 ) OF THE SAME REGULATION LAYS DOWN THE PROCEDURE WHEREBY PROOF OF IMPORTATION INTO A THIRD COUNTRY SHALL BE FURNISHED AND PROVIDES IN PARTICULAR THAT THE COMPETENT NATIONAL AUTHORITIES MAY ' REQUIRE ADDITIONAL FORMS OF PROOF ' .

16 IT IS CLEAR FROM THE FILE THAT , EVEN BEFORE 1971 , THE COMPETENT GERMAN CUSTOMS OFFICE HAD OFTEN REQUIRED PROOF OF MARKETING IN THE COUNTRY OF DESTINATION - A REQUIREMENT WHICH WAS JUSTIFIED IN PARTICULAR BY THE NEED TO AVOID FRAUDULENT PRACTICES IN CONNEXION WITH THE REFUNDS .

MOREOVER THE APPLICANT ITSELF HAS CONCEDED THAT , IN ANY EVENT , SINCE THE DEMAND ON THE MOROCCAN MARKET WAS LIMITED , ONLY PART OF THE BUTTER DISPATCHED TO MOROCCO COULD REMAIN THERE AND THAT IT PROVED NECESSARY TO EFFECT A RE-CONSIGNMENT TO OTHER COUNTRIES WITH A LESS FAVOURABLE RATE OF REFUND .

THE APPLICANT HAS NOT PROVIDED A SCINTILLA OF EVIDENCE IN SUPPORT OF ITS ALLEGATION THAT THE COMMISSION HAD BY ITS VARIOUS COMMUNICATIONS LED IT TO BELIEVE THAT PROOF OF MARKETING IN THE COUNTRY OF DESTINATION COULD NOT BE REQUIRED .

IT MUST THUS BE HELD THAT NEITHER THE COMMISSION NOR THE COMPETENT NATIONAL AUTHORITIES COULD HAVE INDUCED DOUBTS ON THE PART OF THE APPLICANT AS TO WHAT COULD BE REQUIRED BY WAY OF PROOF IN CONNEXION WITH THE PAYMENT OF VARIABLE REFUNDS .

17 IN THOSE CIRCUMSTANCES THE PROCEEDINGS AGAINST THE COMMISSION ARE ALSO UNFOUNDED .

18 IT IS CONSEQUENTLY UNNECESSARY TO CONSIDER FURTHER THE OBJECTION PUT FORWARD BY THE COUNCIL AND THE COMMISSION TO THE EFFECT THAT THE APPLICATION IS OUT OF TIME .

COSTS
19 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

SINCE THE APPLICANT HAS FAILED IN ALL ITS SUBMISSIONS IT MUST BE ORDERED TO BEAR THE COSTS .

ON THOSE GROUNDS ,
THE COURT
HEREBY :
1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE APPLICANT TO BEAR ALL THE COSTS .