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

NON-CONTRACTUAL LIABILITY - DAMAGE - ASSESSMENT - DATE TO BE TAKEN INTO ACCOUNT - DAMAGE CAUSED BY THE ABOLITION OF PRODUCTION REFUNDS - PAYMENT OF THE EQUIVALENT AMOUNT ORDERED BY INTERLOCUTORY JUDGMENT - RATE FOR CONVERSION INTO NATIONAL CURRENCY - EXCHANGE RATE PREVAILING AT THE DATE OF THE INTERLOCUTORY JUDGMENT
( EEC TREATY , ART . 215 , SECOND PARA .)

IT IS CLEAR FROM THE INTERLOCUTORY JUDGMENT OF 4 OCTOBER 1979 BY WHICH THE EUROPEAN ECONOMIC COMMUNITY WAS ORDERED TO PAY TO THE APPLICANTS BY WAY OF DAMAGES FOR NON-CONTRACTUAL LIABILITY AMOUNTS EQUIVALENT TO THE PRODUCTION REFUNDS UNLAWFULLY ABOLISHED , WITH INTEREST AS FROM THE DATE OF JUDGMENT , THAT THE COURT INTENDED TO ASSESS THE DAMAGE AS IT STOOD AT THE DATE OF THAT JUDGMENT .

THE ONLY METHOD OF CALCULATION ALLOWING THE DAMAGE TO BE ASSESSED , ON THE BASIS OF THE REFUNDS ABOLISHED , EQUALLY FOR ALL PRODUCERS IN THE COMMUNITY , IRRESPECTIVE OF THEIR PLACE OF ESTABLISHMENT , IS TO DETERMINE THE AMOUNT OF THE REFUNDS IN QUESTION BY CARRYING OUT THE CONVERSION BETWEEN NATIONAL CURRENCY AND THE EUROPEAN CURRENCY UNIT , WHICH HAD IN THE MEANTIME REPLACED THE UNIT OF ACCOUNT , AT THE RATE OF EXCHANGE PREVAILING AT THE DATE OF THE INTERLOCUTORY JUDGMENT .

IN JOINED CASES
64/76 P . DUMORTIER FRERES SA , TOURCOING ,
113/76MAISERIES DU NORD SA , MARQUETTE-LEZ-LILLE ,
167/78MOULINS & HUILERIES DE PONT-A-MOUSSON SA , PONT-A-MOUSSON ,
239/78MAISERIES DE BEAUCE SARL , ( MOULIN DE MARBOUE ), MARBOUE ,
27/79COSTIMEX SA , STRASBOURG ,
28/79 ' ' LA PROVIDENCE AGRICOLE DE LA CHAMPAGNE ' ' , SOCIETE COOPERATIVE AGRICOLE , RHEIMS ,
45/79MAISERIES ALSACIENNES SA , COLMAR ,
REPRESENTED BY THE FIRM OF G . LESOURD ET D . BAUDIN , ADVOCATE AT THE CONSEIL D ' ETAT AND COUR DE CASSATION , PARIS , AND BY E . JAUDEL , ADVOCATE AT THE COUR D ' APPEL , PARIS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT , CENTRE LOUVIGNY , 34/B/IV RUE PHILIPPE-II ,
APPLICANTS ,
V
COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY D . VIGNES , DIRECTOR OF THE LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY A . BRAUTIGAM , AN ADMINISTRATOR IN THE SAID DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF D . FONTEIN , DIRECTOR OF THE LEGAL DEPARTMENT OF THE EUROPEAN INVESTMENT BANK , 100 BOULEVARD KONRAD-ADENAUER ,
DEFENDANT ,

CONCERNING , AT THE PRESENT STAGE OF THE PROCEEDINGS , THE QUESTION OF THE DATE TO BE TAKEN INTO ACCOUNT IN CONVERTING INTO FRENCH FRANCS THE PRODUCTION REFUNDS DETERMINED IN UNITS OF ACCOUNT WHICH THE COMMUNITY WAS ORDERED TO PAY THE APPLICANTS ,

1 BY AN INTERLOCUTORY JUDGMENT GIVEN IN THESE CASES ON 4 OCTOBER 1979 (( 1979 ) ECR 3091 ) THE COURT ORDERED THE EUROPEAN ECONOMIC COMMUNITY TO PAY TO THE APPLICANTS BY WAY OF DAMAGES FOR NON-CONTRACTUAL LIABILITY THE AMOUNTS EQUIVALENT TO THE PRODUCTION REFUNDS ON MAIZE GRITZ USED BY THE BREWING INDUSTRY WHICH EACH OF THOSE UNDERTAKINGS WOULD HAVE BEEN ENTITLED TO RECEIVE IF DURING THE PERIOD FROM 1 AUGUST 1975 TO 19 OCTOBER 1977 THE USE OF MAIZE FOR THE PRODUCTION OF GRITZ HAD CONFERRED AN ENTITLEMENT TO THE SAME REFUNDS AS THE USE OF MAIZE FOR THE MANUFACTURE OF STARCH . THE COURT FURTHER ORDERED THAT INTEREST AT 6% SHOULD BE PAID ON THE ABOVE-MENTIONED AMOUNTS AS FROM THE DATE OF THE JUDGMENT .

2 THAT ORDER WAS INTENDED TO COMPENSATE THE APPLICANTS FOR THE DAMAGE RESULTING FROM THE DISCRIMINATION SUFFERED BY PRODUCERS OF GRITZ , IN COMPARISON WITH PRODUCERS OF STARCH , OWING TO THE ABOLITION OF REFUNDS FOR MAIZE GRITZ DURING THE AFORESAID PERIOD .

3 THE PARTIES WERE FURTHER ORDERED TO INFORM THE COURT OF THE AMOUNTS OF COMPENSATION ARRIVED AT BY AGREEMENT OR , IN THE ABSENCE OF AGREEMENT , TO SUBMIT A STATEMENT OF THEIR VIEWS WITH SUPPORTING FIGURES .

4 IN JANUARY 1981 THE PARTIES REACHED AN AGREEMENT SPECIFYING THE QUANTITIES OF MAIZE USED IN THE PRODUCTION OF GRITZ DURING THE PERIOD IN QUESTION AND THE AMOUNT OF REFUNDS , EXPRESSED IN UNITS OF ACCOUNT , TO WHICH EACH OF THE APPLICANTS WOULD HAVE BEEN ENTITLED IF THAT PRODUCTION HAD GIVEN RISE AT THE TIME TO A RIGHT TO THE SAME REFUNDS AS THE MANUFACTURE OF STARCH .

5 ON THE OTHER HAND , THE PARTIES WERE NOT ABLE TO REACH AGREEMENT ON THE RELEVANT DATE FOR THE CONVERSION OF THOSE AMOUNTS INTO FRENCH FRANCS , THE NATIONAL CURRENCY OF ALL THE APPLICANTS IN THE PRESENT CASES . THE COUNCIL MAINTAINED THAT IT WAS NECESSARY TO REFER TO THE DATES OF THE ACTUAL PRODUCTION , AS IN THE CASE OF THE REFUNDS FOR THE MANUFACTURE OF STARCH ACTUALLY PAID AT THE TIME . HOWEVER , THE APPLICANTS CLAIMED THAT THE EUROPEAN CURRENCY UNIT , WHICH IN THE MEANTIME HAD REPLACED THE UNIT OF ACCOUNT , SHOULD BE CONVERTED INTO FRENCH FRANCS AT THE RATE PREVAILING AT THE DATE OF THE INTERLOCUTORY JUDGMENT . PENDING THE DECISION OF THE COURT ON THIS POINT , THE COMMUNITY PAID THE APPLICANTS THE AMOUNTS OF COMPENSATION CALCULATED ACCORDING TO THE METHOD ADVOCATED BY THE COUNCIL .

6 IN THEIR PLEADINGS LODGED AT THE COURT REGISTRY ON 3 MARCH 1981 THE APPLICANTS ASKED THAT THE COMMUNITY BE ORDERED TO PAY THE SUMS CALCULATED ACCORDING TO THEIR OWN METHOD , NAMELY :
FF 2 603 760.80 ( IN CASE 64/76 )
FF 1 792 890.60 ( IN CASE 113/76 )
FF 3 400 881.70 ( IN CASE 167/78 )
FF 2 603 786.80 ( IN CASE 239/78 )
FF 6 567 331.20 ( IN CASE 27/79 )
FF 5 333 358.60 ( IN CASE 28/79 )
FF 651 178.30 ( IN CASE 45/79 )
SUBJECT TO DEDUCTION OF THE AMOUNTS OF COMPENSATION ALREADY PROVISIONALLY PAID , WITH INTEREST AT 6% FROM 4 OCTOBER 1979 . AS TO COSTS , WHICH WERE RESERVED IN THE INTERLOCUTORY JUDGMENT , THE APPLICANTS CLAIM THAT THE COMMUNITY SHOULD BE ORDERED TO BEAR THEM IN THEIR ENTIRETY .

7 THE COUNCIL DOES NOT CHALLENGE THE CORRECTNESS OF THE FIGURES PUT FORWARD BY THE APPLICANTS BUT ASKS THE COURT TO DISMISS THEIR CLAIMS IN SO FAR AS THEY EXCEED THE SUMS ALREADY PAID .

THE RELEVANT DATE FOR THE CONVERSION OF THE DAMAGES
8 THE QUESTION ON WHICH THE PARTIES SEEK THE COURT ' S RULING CONCERNS IN EFFECT THE INTERPRETATION OF THE INTERLOCUTORY JUDGMENT OF 4 OCTOBER 1979 .
9 IN THAT RESPECT IT MUST BE REMEMBERED THAT THAT JUDGMENT WAS NOT CONCERNED WITH THE PAYMENT OF ARREARS OF REFUNDS . IT WAS GIVEN FOLLOWING CLAIMS FOR COMPENSATION UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY . THE COURT CONSIDERED THAT THE COMMUNITY INCURRED LIABILITY BY REASON OF THE ABOLITION OF THE REFUNDS FOR MAIZE GRITZ . THE COURT FOUND THAT THE ORIGIN OF THE DAMAGE COMPLAINED OF BY THE APPLICANTS WAS THE FACT THAT THEY HAD NOT RECEIVED THE REFUNDS WHICH WOULD HAVE BEEN PAID TO THEM IF EQUALITY OF TREATMENT WITH PRODUCERS OF MAIZE STARCH HAD BEEN MAINTAINED ; IT THEREFORE CONSIDERED THAT THE AMOUNT OF THOSE REFUNDS SHOULD BE THE BASIS FOR CALCULATING THE DAMAGE SUFFERED .

10 IN CONSEQUENCE , THE COURT ORDERED THE COMMUNITY TO PAY THE APPLICANTS NOT THE REFUNDS BUT AMOUNTS EQUIVALENT THERETO . THE COURT THEREBY CLEARLY INDICATED THAT THE REFUNDS CONSTITUTED ONLY THE BASIS FOR CALCULATING THE AMOUNT OF COMPENSATION .

11 FURTHER , WHEN STATING THE REASONS FOR ITS DECISION ON THE CLAIM FOR INTEREST , THE COURT HELD THAT , HAVING REGARD TO THE CRITERIA FOR THE ASSESSMENT OF DAMAGES WHICH IT HAD LAID DOWN , THE OBLIGATION TO PAY INTEREST AROSE ON THE DATE OF THE JUDGMENT , SINCE IT WAS THE JUDGMENT WHICH ESTABLISHED THE OBLIGATION TO MAKE GOOD THE DAMAGE . IT FOLLOWS THAT THE COURT INTENDED TO ASSESS THE DAMAGE AS IT STOOD AT THAT DATE .

12 THE ONLY METHOD OF CALCULATION ALLOWING THE DAMAGE TO BE ASSESSED AS IT STOOD AT THE DATE OF THE INTERLOCUTORY JUDGMENT , ON THE BASIS THEREIN INDICATED , EQUALLY FOR ALL THE PRODUCERS OF GRITZ IN THE COMMUNITY , IRRESPECTIVE OF THEIR PLACE OF ESTABLISHMENT , IS THAT PROPOSED BY THE APPLICANTS IN THEIR CLAIMS .

13 SINCE THE COUNCIL HAS NOT CHALLENGED THE ACCURACY OF THE SUMS CLAIMED , JUDGMENT MUST BE GIVEN IN FAVOUR OF THE APPLICANTS ON THAT ISSUE .

COSTS
14 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE DEFENDANT HAS ESSENTIALLY FAILED IN ITS SUBMISSIONS BOTH IN THE PROCEEDINGS LEADING TO THE INTERLOCUTORY JUDGMENT AND ON THE QUESTION OF THE DATE OF CONVERSION , IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,
THE COURT
HEREBY :
1 . ORDERS THE EUROPEAN ECONOMIC COMMUNITY TO PAY :
( A ) TO P . DUMORTIER FRERES SA , TOURCOING , THE SUM OF FF 2 603 760.80 ;

( B)TO MAISERIES DU NORD SA , MARQUETTE-LEZ-LILLE , THE SUM OF FF 1 792 890.60 ;

( C)TO MOULINS ET HUILERIES DE PONT-A-MOUSSON SA , PONT-A-MOUSSON , THE SUM OF FF 3 400 881.70 ;

( D)TO MAISERIES DE BEAUCE SARL , MARBOUE , THE SUM OF FF 2 603 786.80 ;

( E)TO COSTIMEX SA , STRASBOURG , THE SUM OF FF 6 567 331.20 ;

( F)TO ' ' LA PROVIDENCE AGRICOLE DE LA CHAMPAGNE ' ' , SOCIETE COOPERATIVE AGRICOLE , RHEIMS , THE SUM OF FF 5 333 358.60 ;

( G)TO MAISERIES ALSACIENNES SA , COLMAR , THE SUM OF FF 651 178.30 ;

SUBJECT TO DEDUCTION OF THE AMOUNTS OF COMPENSATION ALREADY PAID PROVISIONALLY , WITH INTEREST AT 6% FROM 4 OCTOBER 1979 ;

2.ORDERS THE COMMUNITY TO PAY THE COSTS .