Judgment — ECLI:EU:T:1998:21
Date: 1998-02-04
Language of the case: German
Court formation: First Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Milk products;Non-contractual liability
Concepts: Damage for which compensation is payable;Limitation periods;General
Procedure: Action for damages - unfounded
Origin: Germany

summary of the pleas inlaw on which it is based. 31. The application in the present case fulfils the requirements of that provision. 32. In that document the applicant refers to Articles 178 and 215 of the Treaty asconstituting the legal basis for the application, clearly puts in issue the defendants'liability arising from the application of Regulation No 857/84, as supplemented byRegulation No 1371/84, sets out the facts of the case, specifies the three heads ofdamage for which he claims compensation, provides figures in respect of each ofthem and applies for an order requiring the defendants to pay the correspondingsums. 33. The question whether the applicant is entitled simultaneously to apply forcompensation for the loss arising from his own non-utilisation of a referencequantity and for the loss arising from the non-utilisation of that quantity by lesseesdoes not go to any issue of admissibility but to the substance of the case and must,if need be, be determined in the context of that matter. 34. In those circumstances, the objection of inadmissibility must be rejected. Liability of the Community Arguments of the parties 35. The applicant states that he is one of a group of farmers who have suffered lossas a result of the fact that Regulation No 857/84 did not provide for the allocation of a reference quantity to farmers who, pursuant to undertakings given underRegulation No 1078/77, supplied no milk during the reference year. He claims thatthe facts of the case are therefore the same as those in Mulder II and that thedefendants are liable for the damage caused. 36. The applicant maintains that the forced sale of his holding did not result from anyover-indebtedness or mismanagement on his part. He states that his holding wasperfectly viable at the time when the conversion undertaking expired. Relying oninspection reports of the Weser-Ems Chamber of Agriculture and of the LowerSaxony Agricultural Federation, he maintains that he could have resumed milkproduction. He acknowledges that he was driven into debt as a result of the losseswhich he suffered following submission of his application for a conversion premium,but considers that responsibility for those losses lies with the defendants themselvesin the context of the implementation of Regulation No 1078/77. 37. Consequently, there is a sufficient causal link between the non-allocation of areference quantity and the forced sale of the applicant's holding. A referencequantity was an essential prerequisite for the continued operation of the holding,and the absence of such a quantity meant that the holding ceased to have anyraison d'être. 38. The defendants contest the applicant's claims. 39. As regards the damage relating to the loss of the holding in consequence of its saleby auction, they maintain that the criteria laid down in the second paragraph ofArticle 215 of the Treaty are not fulfilled. Responsibility for that damage lies withthe applicant alone; in any event, there is no causal link in the present casebetween Regulation No 857/84 and the loss to which it allegedly gave rise, asrequired by the relevant case-law. 40. The forced sale of the farm was brought about solely by the economic decisionswhich the applicant took in 1979. By the beginning of 1984, he was so heavilyindebted that he could not possibly have made the investments needed in order toresume production on the holding. That conclusion is confirmed by the decisionof the Amtsgericht (District Court) Brake of 16 May 1986 ordering that it be soldby auction, from which it is apparent that the applicant's debts were not coveredby the value in 1984 of the items listed in the inventory of the assets of the holding. 41. In those circumstances, the applicant's holding was no longer viable when theconversion undertaking expired in March 1984. Consequently, the refusal toallocate the applicant a reference quantity had no subsequent effect on theeconomic decline of his holding. 42. Having regard to the applicant's economic situation, the fact that he was notallocated a reference quantity could, at most, merely have contributed to theaggravation of his financial difficulties and to the forced sale of the holding. This is not enough, however, to cause the Community to incur liability by virtue of alegislative act. 43. The causal link is broken in that regard, in that the damage, which was broughtabout at least in part by a lack of foresight or mismanagement on the part of theapplicant, is primarily due to the victim's behaviour (Case 169/73 CompagnieContinentale v Council [1975] ECR 117, at 135, and Case 26/81 Oleifici Mediterraneiv EEC [1982] ECR 3057, at 3079). 44. As regards the second head of damage pleaded, relating to the impossibility of theapplicant's leasing the reference quantity during the period from 1 April 1984 to31 March 1993, the defendants maintain that this does not give rise to any liabilityto pay compensation. 45. The term for which the reference quantity could have been leased could only havecovered the period from the expiry of the conversion undertaking to 25 March1986, the date of the forced sale of the holding. During that period the leasing ofreference quantities was not permitted by Article 5c of Regulation No 804/68 inconjunction with Article 7 of Regulation No 857/84; that situation was held by theCourt of Justice, in its judgment in Case C-44/89 von Deetzen [1991] ECR I-5119,not to be contrary to the principle of protection of legitimate expectations. Itfollows that it was not possible for the applicant to lease the quantity in questionduring the period when he might have enjoyed the benefit of it. 46. As regards the third head of damage pleaded, corresponding, in the applicant'ssubmission, to the value of the reference quantity denied to him, the defendantscontend that this cannot cover more than the loss of earnings arising from the factthat it was impossible for him to use the reference quantity himself. They observe,however, that, following the forced sale of his holding in 1986, the applicant wasno longer in a position to produce milk or, consequently, to obtain a referencequantity for the ensuing milk-marketing years. Findings of the Court 47. It follows from Mulder II that the Community incurred liability vis-à-vis eachproducer who suffered reparable injury through having been prevented fromdelivering milk as a result of the application of Regulation No 857/84, as theinstitutions acknowledged in their Communication of 5 August (paragraphs 1 and3) (see also the judgment of the Court of First Instance in Case T-20/94 Hartmannv Council and Commission [1997] ECR II-595, paragraph 71). 48. In the light of the documents before the Court, which the defendants have notchallenged, the applicant is in the same situation as that of the producers referredto in Mulder II. Because he had entered into a conversion undertaking pursuant to Regulation No 1078/77, he was refused, as a result of Regulation No 857/84, thegrant of a reference quantity when that undertaking expired. 49. In those circumstances, he is entitled to compensation from the defendants for theloss suffered by him as a result of the application of Regulation No 857/84. 50. It is clear from Mulder II that reparable damage is damage which results from thedeprivation of a reference quantity during the period between the date on whichRegulation No 857/84 in its original version was applied to each producer and thedate on which those producers were allocated a specific reference quantity pursuantto Regulation No 764/89. 51. In the present case, however, although the applicant was unlawfully denied areference quantity pursuant to Regulation No 857/84 in 1984, he was no longerentitled to such a quantity after 25 March 1986, the date of the forced sale of theholding in respect of which a conversion undertaking had been entered into in1978. Since a reference quantity is allocated in relation to a specific parcel of land(Case C-98/91 Herbrink [1994] ECR I-223, paragraph 13, and Case C-15/95 EARLde Kerlast v Unicopa [1997] ECR I-1961, paragraph 17), the applicant was nolonger entitled to such a quantity once he ceased to be the owner of land qualifyingfor it. 52. It follows that the reparable damage suffered by the applicant as a result of hishaving been denied that quantity can only be the damage sustained by him up to25 March 1986. 53. Before the extent of the applicant's right to compensation can be determined, it isnecessary to consider whether and to what extent the applicant's claims are barredthrough lapse of time. Time-bar Arguments of the parties 54. The applicant maintains that the defendants are not entitled to plead expiry of thelimitation period, since they waived the right to do so in their Communication of5 August. The institutions are required by virtue of the rule of law to adhere tothe positions adopted by them, on which the producers must be able to placereliance. It is not open to the institutions, therefore, subsequently to plead expiryof the limitation period. 55. The applicant considers that in any event his rights are not barred through lapseof time. He submits that, according to the case-law of the Court of Justice (JoinedCases 256/80, 257/80, 265/80, 267/80 and 5/81 Birra Wührer and Others v Counciland Commission [1982] ECR 85 and Case 51/81 De Franceschi v Council and Commission [1982] ECR 117, hereinafter 'Birra Wührer and De Franceschi), thelimitation period does not begin to run until the victim becomes aware of thedamage and of the act giving rise to it. The victim must be in a position toappreciate the factual and legal circumstances of the matter. In the present case,that was not possible prior to publication of the judgment in Mulder II, the time atwhich it became clear that the institutions were liable to the producers. 56. Even assuming that time started to run on the date of the forced sale of theholding in 1986, the limitation period was interrupted by Regulation No 764/89,which was adopted following delivery of the judgment in Mulder I and was designedto settle the actions for compensation resulting from the lacunae in the originalversion of Regulation No 857/84. 57. The applicant further relies in that regard on the proceedings brought by himbefore the national court of competent jurisdiction against the decision refusing hima reference quantity under Regulation No 764/89 (see paragraph 12 above). 58. Lastly, he maintains that his application cannot be barred through lapse of time,in view of the fact that, from 1992 onwards, following delivery of the judgment inMulder II, he approached the Commission with a view to negotiating an amicablesettlement. 59. The defendant institutions contend that the action for compensation for thedamage alleged is barred through lapse of time. The limitation period laid downin Article 43 of the Statute starts to run, in matters concerning damage caused bya legislative act, once the applicant has suffered ascertainable injury (Birra Wührerand De Franceschi, paragraphs 10). 60. In the present case, the alleged damage was caused by Regulation No 857/84. Itwas already sufficiently ascertainable when that regulation entered into force on1 April 1984, inasmuch as it was clear, as from that date, that the applicant wouldnot obtain a reference quantity. At the very least, time had started to run on26 March 1986, the day after the forced sale of the holding. Consequently, theapplicant's action was barred on 26 March 1991, five years after the sale and priorto the institution of the proceedings. 61. Contrary to the applicant's submission, neither the date on which the Court ofJustice found, in Mulder I, that Regulation No 857/84 was invalid nor the date onwhich, in Mulder II, it held that compensation was payable can constitute the pointin time at which the limitation period started to run. In that regard, the sole factorto be taken into consideration is knowledge of the act giving rise to the damage;awareness that it has been declared invalid, or that compensation has been held tobe payable, cannot constitute a material consideration (judgment of the Court ofJustice in Case 145/83 Adams v Commission [1985] ECR 3539, paragraph 50). 62. The defendants also maintain that only the institution of proceedings in good timewould have been enough to interrupt the limitation period. 63. It is clear from the second sentence of Article 43 of the Statute that the adoptionof a legal act does not bring about such an interruption. Consequently, theadoption of Regulation No 764/89 did not affect the running of time. 64. Similarly, the institution of proceedings before the national courts, which in thepresent case did not in any event put in issue the liability of the Community, is notenough to interrupt the limitation period. 65. As regards the Communication of 5 August, the defendants maintain that thewaiver contained in that communication of the right to plead expiry of thelimitation period related only to rights which had not yet become time-barred onthat date or on the date on which the producer applied to one of the institutions. As it is, the applicant's claim for damages in the present case became time-barredon 26 March 1991, prior to publication of that communication, and the applicantfailed to apply to the institutions in good time. Findings of the Court 66. The limitation period laid down by Article 43 of the Statute, which applies toproceedings before the Court of First Instance by virtue of Article 46 of theStatute, cannot start to run before all the requirements governing the obligation tomake good the damage are satisfied and, in particular, in cases where liability stemsfrom a legislative measure, before the injurious effects of the measure have beenproduced (Birra Wührer and De Franceschi, paragraphs 10, and Hartmann v Counciland Commission, cited above, paragraph 107). 67. In this case, the damage arising from the impossibility of utilising a referencequantity was suffered as from the day on which, following the expiry of hisconversion undertaking, the applicant could have resumed milk deliveries if he hadnot been refused such a quantity, that is to say, from 1 April 1984, the date onwhich Regulation No 857/84 became applicable to him. It was on that date,therefore, that the requirements for bringing an action for damages against theCommunity were fulfilled and that the limitation period started to run. 68. The applicant's argument that the limitation period did not begin to run until thedate on which Regulation No 857/84 was declared invalid by the judgment inMulder I is unfounded. As the Court has previously held, that argument istantamount to making the right to bring an action for damages depend on the actwhich caused the damage having first been annulled or declared invalid. Consequently, he is ignoring the fact that actions for damages under Articles 178and 215 of the Treaty are independent of actions for annulment; the fact that theyare so independent enables an action for damages to be brought without there first having been an action for annulment, and therefore secures greater protection forindividuals (Hartmann v Council and Commission, cited above, paragraph 128). 69. For the purposes of determining the period during which the damage was suffered,it must be noted that that damage was not caused instantaneously. It continued fora period, that is to say, for so long as the applicant was unable to obtain areference quantity. The damage was continuous and recurred on a daily basis(Hartmann v Council and Commission, cited above, paragraph 132). Entitlementto compensation relates, therefore, to consecutive periods commencing on each dayon which it was not possible to market milk. 70. However, since the applicant lost his holding on 25 March 1986, he was, as fromthat date, no longer entitled to a reference quantity (see paragraphs 51 and 52above). Consequently, he did not suffer any injury linked to the application ofRegulation No 857/84 after that date; all the damage suffered by him, including theloss of the holding, was already known. It follows that the limitation period expiredfive years after 25 March 1986, that is to say, on 25 March 1991. 71. The applicant did not, prior to 25 March 1991, perform any of the acts which,under Article 43 of the Statute, interrupt the limitation period, namely theinstitution of proceedings before the Community judicature or the prior submissionof an application to the competent Community institution. 72. The proceedings before the national courts on which the applicant seeks to rely didnot constitute an act interrupting the limitation period. Only the commencementof an action before the Community judicature could have had such an effect. Moreover, the proceedings in question concerned the refusal by the nationalauthorities to allocate a reference quantity to the applicant pursuant to RegulationNo 764/89. They cannot, therefore, affect the present application forcompensation. 73. The applicant's assertion that he entered into negotiations with the Commission in1992 is not borne out by the documents before the Court. In particular, theapplicant has not produced any document which could have constituted a priorapplication within the meaning of Article 43 of the Statute. 74. Lastly, contrary to the applicant's submission, Regulation No 764/89 did not itselfinterrupt the period of limitation. That regulation merely provides for theallocation of a reference quantity to certain producers. It cannot, therefore, haveany effect on the reparation of damage suffered prior to its entry into force. Moreover, none of its provisions expresses any intention on the part of theinstitutions to suspend the limitation periods then running. 75. In those circumstances, since there was no interruption or suspension of thelimitation period, which expired at the latest on 25 March 1991, the proceedings brought on 8 September 1993 were initiated too late, the remedy already beingbarred through lapse of time. 76. It is not open to the applicant, in that regard, to deny that the defendants areentitled to plead expiry of the limitation period, on the ground that they waived theright to do so in the Communication of 5 August. In that communication, theinstitutions undertook not to raise such a plea provided that entitlement tocompensation was not already time-barred on the date on which theCommunication was published. 77. It follows that the application must be dismissed. Costs 78. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs if they have been applied for in the successful party'spleadings. Since the applicant has been unsuccessful, he must be ordered to paythe costs, as applied for by the defendants. On those grounds, THE COURT OF FIRST INSTANCE (First Chamber) hereby: 1. Dismisses the application; 2. Orders the applicant to pay the costs. Saggio Tiili Moura Ramos Delivered in open court in Luxembourg on 4 February 1998. H. Jung A. Saggio Registrar President 1: Language of the case: German. ECR