CELEX: 61981CJ0217
Advance fixing of export refunds
Suspension by the Commission
Non-contractual liability

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 20 JULY 1981 THE UNDERTAKING COMPAGNIE INTERAGRA SA BROUGHT AN ACTION UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY FOR COMPENSATION IN THE SUM OF FF 61 956 250 FOR THE DAMAGE WHICH , IT SAYS , IT SUFFERED AS THE RESULT OF THE ADOPTION OF COMMISSION REGULATION ( EEC ) NO 2993/80 OF 19 NOVEMBER 1980 TEMPORARILY SUSPENDING ADVANCE FIXING OF THE EXPORT REFUND FOR BUTTER AND BUTTER-OIL ( OFFICIAL JOURNAL 1980 , L 310 , P . 18 ) BY VIRTUE OF WHICH THE APPLICANT WAS REFUSED A REFUND , TO WHICH IT BELIEVED THAT IT WAS ENTITLED , IN     RESPECT OF A CONTRACT CONCLUDED PURSUANT TO AN INVITATION TO TENDER FOR THE DELIVERY OF BUTTER TO THE SOVIET UNION AND AS THE RESULT OF INSTRUCTIONS GIVEN BY THE COMMISSION REGARDING THE IMPLEMENTATION OF THAT REGULATION .
2 IN RESPONSE TO AN INVITATION TO TENDER ISSUED BY THE SOVIET AGENCY V . O . PRODINTORG , MOSCOW , ( HEREINAFTER REFERRED TO AS ' ' PRODINTORG ' ' ) ON 17 NOVEMBER 1980 THE APPLICANT SUBMITTED A TENDER TO THAT AGENCY FOR 25 000 TONNES OF BUTTER IN RELIANCE ON THE RATE OF REFUND FIXED BY COMMISSION REGULATION ( EEC ) NO 2943/80 OF 13 NOVEMBER 1980 ( OFFICIAL JOURNAL 1980 , L 305 , P . 27 ). THE TENDER WAS VALID UNTIL 20 DECEMBER 1980 . ON THE VERY DAY ON WHICH IT SUBMITTED ITS TENDER THE APPLICANT LODGED AN APPLICATION WITH THE FRENCH INTERVENTION AGENCY , THE FONDS D ' ORIENTATION ET DE REGULARISATION DES MARCHES AGRICOLES ( AGRICULTURAL MARKETS GUIDANCE AND STABILIZATION FUND , HEREINAFTER REFERRED TO AS ' ' THE FRENCH FUND ' ' ) FOR AN ADVANCE-FIXING CERTIFICATE FOR 25 000 TONNES OF BUTTER .
3 ON 20 NOVEMBER 1980 COMMISSION REGULATION ( EEC ) NO 2993/80 OF 19 NOVEMBER 1980 ENTERED INTO FORCE ( OFFICIAL JOURNAL 1980 , L 310 , P . 18 ). IT SUSPENDED THE ADVANCE FIXING OF REFUNDS ON EXPORTS OF BUTTER UNTIL 27 NOVEMBER 1980 . THAT SUSPENSION WAS SUBSEQUENTLY EXTENDED TO 11 DECEMBER 1980 BY COMMISSION REGULATION ( EEC ) NO 3070/80 ( OFFICIAL JOURNAL 1980 , L 322 , P . 27 ) AND THE SUBSEQUENT COMMISSION REGULATIONS FIXING EXPORT REFUNDS ON MILK AND MILK PRODUCTS CEASED TO FIX ANY REFUNDS ON EXPORTS OF BUTTER TO THE SOVIET UNION .
4 ON 28 NOVEMBER 1980 THE FRENCH FUND INFORMED THE APPLICANT THAT SINCE THE COMMISSION OF THE EUROPEAN COMMUNITIES HAD SUSPENDED ADVANCE FIXING FROM 20 TO 27 NOVEMBER 1980 APPLICATIONS FOR CERTIFICATES SUBMITTED AFTER 17 NOVEMBER 1980 WERE DEVOID OF PURPOSE BY VIRTUE OF ARTICLE 3 ( 3 ) OF REGULATION ( EEC ) NO 2044/75 OF 25 JULY 1975 ON SPECIAL DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF IMPORT AND EXPORT LICENCES AND THE ADVANCE FIXING OF REFUNDS IN RESPECT OF MILK AND MILK PRODUCTS ( OFFICIAL JOURNAL 1979 , L 213 , P . 15 ). THE FRENCH FUND CONFIRMED ITS DECISION BY LETTER OF 24 DECEMBER 1980 IN WHICH IT REFERRED TO THE ' ' EEC ' S INTERPRETATION ' '  OF REGULATION ( EEC ) NO 2044/75 .
5 DURING THE WRITTEN PROCEDURE THE COMMISSION REFERRED TO TWO COMMUNICATIONS WHICH ITS DIRECTORATE-GENERAL FOR AGRICULTURE SENT TO THE FRENCH FUND WHEN THE ADVANCE FIXING OF THE REFUNDS IN QUESTION WAS SUSPENDED . THE     FIRST WAS A TELEX MESSAGE DATED 19 NOVEMBER 1980 WHICH ACCORDING TO THE COMMISSION , CONTAINED A STANDARD FORMULA INDICATING THE DATE FROM WHICH APPLICATIONS FOR CERTIFICATES LODGED AFTER THE SUSPENSION OF ADVANCE FIXING HAD TO BE REFUSED BY VIRTUE OF ARTICLE 3 ( 3 ) OF REGULATION ( EEC ) NO 2044/75 AND THE SECOND WAS A TELEX MESSAGE OF 27 NOVEMBER IN RESPONSE TO AN EXPRESS REQUEST FROM THE FRENCH FUND , CONFIRMING THAT FOR APPLICATIONS FOR CERTIFICATES LODGED IN CONNECTION WITH INVITATIONS TO TENDER THERE WAS NO EXCEPTION TO THE RULE CONTAINED IN ARTICLE 3 ( 3 ) OF REGULATION ( EEC ) NO 2044/75 . ACCORDING TO THE COMMISSION THE TWO TELEX MESSAGES WERE PURELY INFORMATIVE AND MERELY INDICATED THE LEGAL POSITION UNDER THE REGULATIONS IN FORCE .
6 AFTER IT HAD ACCEPTED THE APPLICANT ' S TENDER ON 10 DECEMBER 1980 PRODINTORG SERVED FORMAL NOTICE ON THE APPLICANT ON 9 JANUARY 1981 REQUIRING IT TO PERFORM ITS OBLIGATION TO SUPPLY THE PRODUCTS IN QUESTION . BY THIS APPLICATION THE APPLICANT SEEKS COMPENSATION FROM THE COMMISSION FOR THE DAMAGE WHICH IT HAS ALLEGEDLY SUFFERED AS THE RESULT OF THE APPLICATION OF INSTRUCTIONS GIVEN BY THE COMMISSION AND OF THE COMMUNITY RULES . THE DAMAGE IS ALLEGED TO CONSIST OF THE LOSS INCURRED BY PRODINTORG WHICH THE APPLICANT MUST MAKE GOOD , AND THE NON-MATERIAL DAMAGE AND LOSS OF PROFIT INCURRED BY THE APPLICANT ITSELF .
ADMISSIBILITY
7 THE COMMISSION CONTESTS THE ADMISSIBILITY OF THE APPLICATION . IT CONTENDS , IN THIS RESPECT , THAT THE TWO TELEX MESSAGES WHICH IT SENT TO THE FRENCH FUND HAVE NO LEGISLATIVE FORCE BUT MERELY CONSTITUTE STATEMENTS AND COMMUNICATIONS OF INFORMATION WHICH CANNOT BY THEMSELVES BIND NATIONAL BODIES BECAUSE THOSE BODIES APPLY COMMUNITY LAW ON THEIR OWN RESPONSIBILITY . ACCORDING TO THE COMMISSION , IT FOLLOWS THAT THE DECISION TO REFUSE THE APPLICATIONS FOR EXPORT CERTIFICATES WAS ADOPTED BY THE FRENCH INTERVENTION AGENCY AND IT IS FOR THOSE CONCERNED TO CONTEST SUCH A DECISION BEFORE THE NATIONAL COURTS WHICH IF NECESSARY MAY REFER QUESTIONS TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY .
8 IN ITS JUDGMENT OF 27 MARCH 1980 IN CASE 133/79 SUCRIMEX ( 1980 ) ECR 1299 THE COURT HAD THE OCCASION TO RECORD THAT THE APPLICATION OF COMMUNITY PROVISIONS ON EXPORT REFUNDS IS A MATTER FOR THE NATIONAL BODIES     APPOINTED FOR THIS PURPOSE AND THE COMMISSION HAS NO POWER TO TAKE DECISIONS ON THEIR INTERPRETATION BUT MAY ONLY EXPRESS ITS OPINION WHICH IS NOT BINDING UPON THE NATIONAL AUTHORITIES . IT FOLLOWS THAT THE TELEX MESSAGES AT ISSUE ARE PART OF THE INTERNAL COOPERATION BETWEEN THE COMMISSION AND THE NATIONAL BODIES RESPONSIBLE FOR APPLYING THE COMMUNITY RULES IN THIS FIELD AND AS A GENERAL RULE THAT COOPERATION CANNOT MAKE THE COMMUNITY LIABLE TO INDIVIDUALS .
9 THE DECISION TO REFUSE THE APPLICATIONS FOR EXPORT CERTIFICATES , WHICH IS SAID TO BE THE CAUSE OF THE DAMAGE ALLEGED BY THE APPLICANT , IS THEREFORE TO BE SEEN AS HAVING BEEN ADOPTED BY THE FRENCH INTERVENTION AGENCY . AS THE COURT STATED IN ITS JUDGMENT OF 12 DECEMBER 1979 IN CASE 12/79 WAGNER ( 1979 ) ECR 3657 , THE PURPOSE OF THE ACTION FOR DAMAGES PROVIDED FOR IN ARTICLES 178 AND 215 OF THE TREATY IS NOT TO ENABLE THE COURT TO EXAMINE THE VALIDITY OF DECISIONS TAKEN BY NATIONAL AGENCIES RESPONSIBLE FOR THE IMPLEMENTATION OF CERTAIN MEASURES WITHIN THE FRAMEWORK OF THE COMMON AGRICULTURAL POLICY OR TO ASSESS THE FINANCIAL CONSEQUENCES RESULTING FROM ANY INVALIDITY OF SUCH DECISIONS .
10 ON THE CONTRARY , A REVIEW OF ADMINISTRATIVE ACTS OF MEMBER STATES IN APPLYING COMMUNITY LAW IS PRIMARILY A MATTER FOR NATIONAL COURTS WITHOUT PREJUDICE TO THEIR POWER TO REFER QUESTIONS FOR A PRELIMINARY RULING TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY . IN THE CIRCUMSTANCES THE REMEDY TO BE ENVISAGED IN THE PRESENT CASE IS AN ACTION BEFORE THE NATIONAL COURTS , TO WHICH THE APPLICANT HAS IN FACT ALREADY APPLIED .
11 THE APPLICATION MUST THEREFORE BE DISMISSED AS INADMISSIBLE .
Decision on costs
COSTS
12 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING . AS THE APPLICANT HAS FAILED IN ITS ACTION IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS ,
THE COURT ( THIRD CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION AS INADMISSIBLE ;
2 . ORDERS THE APPLICANT TO PAY THE COSTS .