61977CJ0090_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 90/77
HELLMUT STIMMING KG, WITTEN ( RUHR ), REPRESENTED BY D . EHLE, U . C . FELDMANN AND U . WIEMANN, ADVOCATES AT THE COLOGNE BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF J . JANSEN-HOUSSE, HUISSIER, 21 RUE ALDRINGEN,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, PETER KALBE, WITH AN ADDRESS FOR SERVICE IN LUXEMBURG AT THE OFFICE OF MARIO CERVINO, LEGAL ADVISER TO THE COMMISSION OF THE EUROPEAN COMMUNITIES, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR COMPENSATION,
Grounds
1BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 21 JULY 1977, THE APPLICANT BROUGHT BEFORE THE COURT AN ACTION AGAINST THE COMMISSION FOR COMPENSATION ON THE BASIS OF ARTICLES 178 AND 215 OF THE TREATY .
HAVING ENTERED INTO A CONTRACT ON 15 FEBRUARY 1977 WITH THE ROMANIAN EXTERNAL TRADING ORGANIZATION PRODEXPORT FOR THE DELIVERY OF 450 000 KG OF MARINATED MEAT ( SAUERBRATEN ), IT CONSIDERS THAT IT IS HARMED BY THE ADOPTION OF COUNCIL REGULATION ( EEC ) NO 425/77 OF 14 FEBRUARY 1977 AMENDING REGULATION NO 805/68 ON THE COMMON ORGANIZATION OF THE MARKET IN BEEF AND VEAL AND ADAPTING REGULATION ( EEC ) NO 827/68, AND REGULATION ( EEC ) NO 950/68 ON THE COMMON CUSTOMS TARIFF ( JOURNAL OFFICIEL L 61, P . 1 ).
THAT REGULATION ALTERED THE ARRANGEMENTS FOR IMPORTS AS REGARDS INTER ALIA THE CALCULATION OF THE LEVY ; AND IN ADDITION, ' ' WHEREAS CERTAIN PRODUCTS SUBMITTED AS ' PREPARED MEAT '
FALLING WITHIN SUBHEADING 16.02 B III ( B ) 1 OF THE COMMON CUSTOMS TARIFF WERE CREATED FOR THE SOLE PURPOSE OF AVOIDING APPLICATION OF THE LEVIES ; WHEREAS, TO AVOID LEVY-FREE IMPORTS OF PRODUCTS WHICH CAN BE SUBSTITUTED FOR MEAT FALLING WITHIN HEADING NO 02.01 OF THE COMMON CUSTOMS TARIFF, IT IS NECESSARY TO ARRIVE AT A BETTER DEFINITION OF THE PRODUCTS WHICH MAY BE IMPORTED FREE OF LEVIES ' ', IT AMENDED ARTICLE 9 ( 2 ) OF REGULATION NO 805/68 SO AS TO APPLY LEVIES TO PRODUCTS FALLING WITHIN A NEW HEADING, 16.02 B III ( B ) 1 ( AA ), WHICH IT INTRODUCED IN ARTICLE 5 ( 7 ).
THESE CHANGES BECAME APPLICABLE AS FROM 1 APRIL 1977 .
2SINCE THEY FELL WITHIN THE NEW TARIFF HEADING 16.02 B III ( B ) 1 ( AA ), THE PRODUCTS FORMING THE SUBJECT-MATTER OF THE AFORESAID CONTRACT OF 15 FEBRUARY 1977 BECAME LIABLE TO THE AMENDED SYSTEM OF LEVIES .
THOSE PRODUCTS, WHICH UNDER THE OLD SYSTEM HAD BEEN LIABLE TO AD VALOREM CUSTOMS DUTY OF 26% - BUT ALSO SUBJECT TO PROTECTIVE MEASURES FOR SEVERAL YEARS -, BECAME LIABLE TO CUSTOMS DUTY OF 20% AND A LEVY WHICH AT THE MATERIAL TIME AMOUNTED TO MORE THAN 100% OF THE PURCHASE PRICE .
THE APPLICANT APPROACHED THE COMMISSION SEEKING APPLICATION IN ITS FAVOUR OF ARTICLE 7 OF REGULATION NO 425/77, WHICH PROVIDES : ' ' SHOULD TRANSITIONAL MEASURES BE NECESSARY TO FACILITATE THE IMPLEMENTATION OF THIS REGULATION, IN PARTICULAR IF SUCH IMPLEMENTATION ON THE DATE PROVIDED FOR WERE TO GIVE RISE TO SUBSTANTIAL DIFFICULTIES IN RESPECT OF CERTAIN PRODUCTS, SUCH MEASURES SHALL BE ADOPTED IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN ARTICLE 27 ( OF REGULATION NO 805/68 ). THEY SHALL BE APPLICABLE UNTIL 31 DECEMBER 1977 ' ' .
THE COMMISSION DID NOT ADOPT THE MEASURES SOUGHT BY THE APPLICANT, AND THE APPLICANT BROUGHT THIS ACTION FOR COMPENSATION CLAIMING, IN THE WORDS OF THE REPLY, THAT THE COURT SHOULD ' ' DECLARE THAT THE DEFENDANT IS REQUIRED, IN ORDER TO COMPENSATE FOR THE DAMAGE WHICH IT HAS CAUSED, TO AUTHORIZE THE IMPORTATION, FREE OF THE LEVY, OF THE QUANTITY OF MARINATED MEAT SPECIFIED IN THE CONTRACT OF 15 FEBRUARY 1977, BY ADOPTING A DECISION ORDERING THE FEDERAL REPUBLIC OF GERMANY TO ADMIT THE QUANTITY OF MARINATED MEAT AT ISSUE INTO FREE CIRCULATION FREE OF THE LEVY ' ' .
ALTERNATIVELY THE COURT IS ASKED TO ' ' DECLARE THAT THE COMMUNITY IS REQUIRED TO MAKE GOOD THE DAMAGE WHICH IT CAUSED THE APPLICANT BY IMPEDING THE PERFORMANCE OF THE CONTRACT OF 15 FEBRUARY 1977 ; IN THE FURTHER ALTERNATIVE, ORDER THE COMMUNITY TO PAY THE APPLICANT DM 787 500, WITH INTEREST AT 8% FROM THE DATE OF THE DAMAGE ' ' .
3THE COMMISSION, THE DEFENDANT TO THE ACTION, CONTENDS THAT THE PRIMARY CLAIM SHOULD BE DISMISSED AS INADMISSIBLE AND THAT THE CLAIM IN THE ALTERNATIVE SHOULD BE DISMISSED AS INADMISSIBLE AS TO PART AND UNFOUNDED AS TO THE WHOLE .
4AS THE LEGAL BASIS OF THE PRIMARY CLAIM AND OF THE ALTERNATIVE CLAIMS IS THE SAME, THE QUESTION WHETHER THE ACTION IS WELL FOUNDED SHOULD BE CONSIDERED FIRST .
5THE FIRST POINT TO BE CONSIDERED IN RELATION TO THE QUESTION WHETHER THE ACTION IS WELL FOUNDED IS WHETHER THERE IS A CAUSAL NEXUS BETWEEN THE DAMAGE ALLEGED AND THE CONDUCT OF THE COMMISSION .
THE COMMISSION IS CRITICIZED FOR NOT HAVING USED ITS POWERS UNDER ARTICLE 7 OF REGULATION NO 425/77 IN THE MANNER DESIRED BY THE APPLICANT .
IN PARTICULAR IT IS ALLEGED THAT THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION SHOULD HAVE PROMPTED IT TO PROVIDE TRANSITIONAL EXEMPTIONS FROM THE NEW SYSTEM WHERE IMPORTERS WHO HAD ALREADY ACCEPTED COMMITMENTS TO IMPORT WERE SURPRISED BY AN UNFORESEEABLE AMENDMENT IN THE SYSTEM .
6ALTHOUGH THE WORDING OF ARTICLE 7 OF REGULATION NO 425/77 EXPRESSLY REFERS NOT TO DIFFICULTIES WHICH THE IMPLEMENTATION OF THE NEW SYSTEM MIGHT CAUSE FOR THOSE CONCERNED BUT RATHER TO DIFFICULTIES OF AN ADMINISTRATIVE NATURE WHICH MIGHT BE ENCOUNTERED BY THE AUTHORITIES RESPONSIBLE FOR SUCH IMPLEMENTATION, THE WORDING IS COUCHED IN TERMS BROAD ENOUGH TO ENABLE THE COMMISSION IF NECESSARY TO ADOPT MEASURES DESIGNED TO PROTECT THE LEGITIMATE EXPECTATION OF TRADERS INASMUCH AS THE AMENDMENT INTRODUCED IS SUCH AS TO JEOPARDIZE IT .
SUCH PROTECTION IS REQUIRED INTER ALIA WHERE UNDER THE PRECEDING SYSTEM TRADERS HAVE ALREADY INFORMED THE COMPETENT AUTHORITIES OF THEIR INTENTION TO CARRY OUT SPECIFIC TRANSACTIONS OVER A PERIOD EXTENDING BEYOND THE TIME OF THE INTRODUCTION OF A NEW SYSTEM AND HAVE IRREVOCABLY COMMITTED THEMSELVES THERETO, WHERE APPROPRIATE BY PAYING A DEPOSIT .
HOWEVER THE COMMISSION HAD ALREADY ADOPTED TRANSITIONAL MEASURES IN THAT CONNEXION IN ITS REGULATION NO 3117/76 OF 21 DECEMBER 1976 AMENDING AND REPEALING THE LINKING SYSTEMS INTRODUCED IN THE BEEF AND VEAL SECTOR, BY WAY OF PROTECTIVE MEASURES, BY REGULATIONS ( EEC ) NO 76/76 AND ( EEC ) NO 223/76 ( OFFICIAL JOURNAL L 352, P . 14 ), WHICH UNEQUIVOCALLY ANNOUNCED THAT AN AMENDMENT OF THE SYSTEM IN FORCE AT THE TIME WAS ENVISAGED AS FROM 1 APRIL 1977 .
ARTICLE 5 OF THAT REGULATION PROVIDES THAT ' ' REGULATIONS ( EEC ) NO 76/76 AND ( EEC ) NO 223/76 ARE REPEALED WITH EFFECT FROM 1 APRIL 1977 . HOWEVER, THEY SHALL REMAIN APPLICABLE FOR OPERATIONS RESULTING FROM TENDERS FOR INTERVENTION BEEF LODGED UP TO THE THIRD MONDAY OF MARCH 1977 ' ' .
THUS, BY PUBLISHING ON PAGE 15 OF OFFICIAL JOURNAL L 352 OF 22 DECEMBER 1976 BOTH THE WARNING TO TRADERS CONCERNED AND THE ANNOUNCEMENT THAT THE PREVIOUS ARRANGEMENTS WOULD CONTINUE TO APPLY IN FAVOUR OF ALL THOSE WHO BEFORE A CERTAIN DATE HAD EXPRESSED THEIR INTENTION TO MAKE USE OF THEM FOR CERTAIN CURRENT TRANSACTIONS, THE COMMISSION HAD ALREADY ADOPTED TRANSITIONAL MEASURES, SO THAT IT DID NOT NEED TO CONSIDER ADOPTING THEM UNDER ARTICLE 7 OF REGULATION NO 425/77, WHICH IS CITED ABOVE .
7MOREOVER THE COMMISSION WAS ENTITLED TO TAKE THE VIEW THAT BOTH THE DIVISION OF THE OLD TARIFF SUBHEADING 16.02 B III(B)1 INTO TWO NEW SUBHEADINGS AND THE APPLICATION OF THE LEVY SYSTEM TO PRODUCTS FALLING WITHIN THE FIRST OF THOSE SUBHEADINGS WOULD NOT BE DETRIMENTAL TO THE LEGITIMATE EXPECTATION OF TRADERS .
THOSE AMENDMENTS WERE ALREADY FORESHADOWED BY THE EARLIER RULES CONCERNING PROTECTIVE MEASURES IN THE SECTOR IN QUESTION .
AS EXAMPLES IN THAT CONNEXION IT SUFFICES TO CITE REGULATION NO 610/75 OF THE COMMISSION OF 7 MARCH 1975 ON PROTECTIVE MEASURES FOR CERTAIN BEEF AND VEAL PRODUCTS FALLING WITHIN SUBHEADING 16.02 B III(B)1 OF THE COMMON CUSTOMS TARIFF ( OFFICIAL JOURNAL L 63, P . 37 ), COMMISSION REGULATION NO 76/76 OF 16 JANUARY 1976 SETTING UP A SYSTEM LINKING IMPORTS OF BEEF AND VEAL PRODUCTS EFFECTED BY WAY OF PROTECTIVE MEASURES WITH THE SALE OF BEEF HELD BY INTERVENTION AGENCIES ( OFFICIAL JOURNAL L 10, P . 21 ), COMMISSION REGULATION NO 223/76 OF 30 JANUARY 1976 SETTING UP A SYSTEM LINKING IMPORTS OF BEEF AND VEAL PRODUCTS EFFECTED BY WAY OF PROTECTIVE MEASURES WITH THE SALE OF PRESERVED BEEF HELD BY INTERVENTION AGENCIES ( OFFICIAL JOURNAL L 26, P . 59 ) AND THE AFOREMENTIONED REGULATION NO 3117/76 .
THE THIRD RECITAL IN THE PREAMBLE TO REGULATION NO 610/75 AND THE TENTH RECITAL IN THE PREAMBLE TO REGULATION NO 76/76 BOTH NOTED THE GRADUAL DEVELOPMENT OF NEW IMPORT PATTERNS IN THE CASE OF CERTAIN PRODUCTS FALLING WITH TARIFF SUBHEADING 16.02 B III ( B ) 1 WHICH WERE NOT COVERED BY THE PROTECTIVE MEASURES ALREADY ADOPTED BUT WHICH WERE REPLACING PRODUCTS FOR WHICH IMPORT LICENCES AND ADVANCE FIXING CERTIFICATES WERE NOT ISSUED AT THE TIME .
IN PRINCIPLE ALL THE REGULATIONS CITED APPLIED THE PROTECTIVE MEASURES WHICH THEY INTRODUCED TO PRODUCTS FALLING WITHIN THE SAID TARIFF SUBHEADING .
HOWEVER, IN DOING SO, THOSE REGULATIONS EXCEPTED FROM APPLICATION OF THOSE MEASURES CERTAIN PRODUCTS DEFINED IN ARTICLE 1 OF REGULATION NO 610/75 AS ' ' PREPARED OR PRESERVED BOVINE MEAT OR BOVINE MEAT OFFAL PUT UP IN SEALED CONTAINERS WEIGHING NOT MORE THAN 3 KG NET ' ' .
ARTICLE 1 ( 2 ) OF REGULATION NO 76/76 EXTENDED THAT EXCEPTION AND DEFINED THE PRODUCTS IN GREATER DETAIL, AND THAT DEFINITION WAS REPEATED IN ESSENTIALLY IDENTICAL TERMS IN REGULATION NO 3117/76 .
ALTHOUGH THOSE EXCEPTIONS BECAME IRRELEVANT OWING TO THE AMENDMENT OF THE TARIFF HEADING CONCERNED, THE DEFINITION OF THE NEW SUBHEADING 16.02 B III ( B ) 1 ( AA ) GIVEN IN ARTICLE 9 ( 1 ) ( J ) OF COMMISSION REGULATION NO 586/77 OF 18 MARCH 1977 LAYING DOWN RULES FOR THE APPLICATION OF LEVIES ON BEEF AND VEAL . . . ( OFFICIAL JOURNAL L 75, P . 10 ) IS SUCH AS TO EXCLUDE ITS APPLICATION TO PRODUCTS COVERED BY THE EXCEPTIONS CITED ABOVE .
8THE APPLICANT HAS ALSO MENTIONED AN OFFICIAL RULING AS TO CLASSIFICATION WHICH WAS ISSUED IN 1975 UNDER GERMAN LEGISLATION BY THE COMPETENT GERMAN AUTHORITY TO THE EFFECT THAT THE GOODS IN QUESTION DID FALL WITHIN THE OLD SUBHEADING 16.02 B III ( B ) 1 AND HAS ALLEGED THAT IT ACTED IN RELIANCE ON THAT OFFICIAL RULING .
ON 25 MARCH 1977 AT PASSAU THE APPLICANT IMPORTED A CONSIGNMENT OF APPROXIMATELY 10 000 KG OF MARINATED MEAT ON THE AUTHORITY OF THAT RULING WITHOUT THE SYSTEM OF PROTECTIVE MEASURES, WHICH WAS STILL IN FORCE AT THE TIME, BEING APPLIED TO IT .
9HOWEVER IT EMERGES FROM THE APPLICANT ' S STATEMENTS AT THE HEARING THAT IT WAS ABLE TO OBTAIN THAT CLEARANCE INTO FREE CIRCULATION ONLY OWING TO AN AMENDMENT OF THE RULING CONCERNED DATED 13 OCTOBER 1976 STATING THAT THE GOODS CAME UNDER THE ABOVE-MENTIONED EXCEPTIONS LAID DOWN IN REGULATION NO 76/76 .
IT IS CLEAR FROM THOSE STATEMENTS THAT AT THE TIME OF THE AMENDMENT THE APPLICANT HAD ALREADY REALIZED THAT ANY IMPORTATION OF THE GOODS MIGHT FALL FOUL OF THE PROTECTIVE MEASURES THEN IN FORCE AND WAS TO BE REGARDED AS BEING VERY HAZARDOUS .
AT ALL EVENTS THE ISSUE OF SUCH A RULING, WHICH BY ITS VERY NATURE CAN REFER ONLY TO THE RULES IN FORCE AT THE TIME AND THUS CANNOT PROTECT THE PERSON TO WHOM IT WAS ISSUED FROM AMENDMENTS TO SUCH RULES, CANNOT BE CONSIDERED AS EQUIVALENT TO THE ISSUE OF CERTIFICATES, DECLARATIONS AND OTHER DOCUMENTS CONCERNING SPECIFIC TRANSACTIONS ENVISAGED FOR A SET TIME AND FOR SET QUANTITIES .
WHEREAS DOCUMENTS OF THE LATTER KIND ARE CAPABLE OF GIVING RISE TO LIABILITY ON THE PART OF THE COMMUNITY AUTHORITIES, RULINGS AS TO CLASSIFICATION ON THE OTHER HAND ARE ISSUED FOR GENERAL PURPOSES AND ARE OF A PURELY ABSTRACT NATURE, THAT IS TO SAY WITHOUT ANY RELATION TO SPECIFIC TRANSACTIONS, AND SO ARE NOT SUCH AS TO OBLIGE THOSE AUTHORITIES IN ANY ADJUSTMENTS OF THE RULES CONCERNED WHICH THEY MIGHT CONSIDER NECESSARY TO TAKE ACCOUNT OF ANY EXPECTATIONS WHICH SUCH DOCUMENTS MIGHT HAVE ENGENDERED AMONG INTERESTED PARTIES .
10IT FOLLOWS FROM THE FOREGOING THAT THE COMMISSION WAS ENTITLED TO TAKE THE VIEW THAT BECAUSE OF THE PRIOR ADOPTION OF ARTICLE 5 OF REGULATION NO 3117/76, IT WAS NOT NECESSARY WHEN REGULATION NO 425/77 ENTERED INTO FORCE TO ADOPT ANY FURTHER TRANSITIONAL MEASURES UNDER ARTICLE 7 THEREOF IN ORDER TO PROTECT THE LEGITIMATE EXPECTATION OF TRADERS .
CONSEQUENTLY ITS CONDUCT IN THAT CONNEXION CANNOT BE REGARDED AS HAVING CAUSED THE DAMAGE ALLEGED BY THE APPLICANT .
11THE APPLICANT ALSO CRITICIZES THE COMMISSION FOR HAVING ACTED ILLEGALLY AND FOR HAVING FAILED TO FULFIL ITS OBLIGATIONS INASMUCH AS ( A ) THE CHARGING OF LEVIES AND CORRESPONDING MONETARY COMPENSATORY AMOUNTS ON UNCOOKED PREPARED BEEF AND VEAL GOES AGAINST THE RATE OF CUSTOMS DUTY BOUND AT 26% UNDER THE GENERAL AGREEMENT ON TARIFFS AND TRADE ( GATT ), AND ( B ) THE LEVY AND THE MONETARY COMPENSATORY AMOUNT ARE SO EXCESSIVE THAT THEY INFRINGE THE PRINCIPLES OF ARTICLES 39 AND 110 OF THE TREATY AS WELL AS THE PRINCIPLES OF PROPORTIONALITY AND OF NON-DISCRIMINATION .
IT IS ALLEGED THAT BY ITS ATTITUDE THE COMMISSION HAS COMMITTED A SERIOUS BREACH OF SEVERAL SUPERIOR RULES OF COMMUNITY LAW .
12THE DEFENDANT CONSIDERS THIS CRITICISM TO BE MISDIRECTED, AS THE BREACHES ALLEGED ARE THE RESULT OF REGULATION NO 425/77, WHICH IS AN ACT OF THE COUNCIL AND THUS OF ANOTHER COMMUNITY INSTITUTION .
THE COMMISSION ALSO CONTENDS, AS REGARDS THE ALLEGED INFRINGEMENT OF GATT, THAT THE APPLICANT IS UNABLE TO SPECIFY WHICH RULE OF THAT AGREEMENT HAS BEEN INFRINGED IN THIS CASE BUT HAS MERELY CITED THE NEGOTIATIONS CONCERNING THE BINDING OF SUBHEADING 16.02 B III ( B ) 1 WHICH CONCERNED ONLY PRESERVED BEEF AND VEAL, PARTICULARLY CORNED BEEF, AS WELL AS PREPARATIONS OF BEEF AND VEAL MADE BY THOROUGHLY COOKING THE MEAT DURING THE MANUFACTURING AND PRESERVING PROCESS, THESE BEING THE ONLY PRODUCTS WITHIN THE SUBHEADING WHICH WERE IMPORTED IN APPRECIABLE QUANTITIES AT THE TIME OF THE BINDING .
THE COMMISSION ALSO CONTENDS THAT THE ORIGINAL DECISION FORMALLY TO EXTEND THE CONVENTIONAL RATE TO ALL PRODUCTS FALLING WITHIN THE SUBHEADING AT ISSUE WAS A UNILATERAL CONCESSION BY THE COMMUNITY WHICH HAS BEEN PROGRESSIVELY WITHDRAWN SINCE THE ADOPTION OF REGULATION NO 610/75 .
13AS REGARDS THE ALLEGEDLY EXCESSIVE AMOUNT OF THE LEVIES, THE POINT OF REFERENCE IS THE BASIC LEVY APPLICABLE TO CATTLE, DETERMINED BY REFERENCE TO THE DIFFERENCE BETWEEN THE GUIDE PRICE AND THE FREE-AT-FRONTIER OFFER PRICE .
UNDER THE PROVISIONS OF ARTICLE 12 OF REGULATION NO 805/68 AS AMENDED BY REGULATION NO 425/77, THE LEVY MAY IN FACT AMOUNT TO 114% WHERE THE MARKET PRICE OF ADULT BOVINE ANIMALS IS LESS THAN 90% OF THE GUIDE PRICE .
14THE DEFENDANT ' S ARGUMENTS HAVE NOT BEEN REFUTED BY THE APPLICANT TO THE EXTENT REQUIRED BY LAW .
15ACCORDINGLY THE APPLICATION MUST BE DISMISSED IN ITS ENTIRETY, AND IT IS NOT NECESSARY TO CONSIDER WHETHER EVERY HEAD OF CLAIM IS ADMISSIBLE .
Decision on costs
COSTS
16UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING .
THE APPLICANT HAS FAILED IN ITS SUBMISSIONS, THEREFORE IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT
HEREBY :
1 . DISMISSES THE APPLICATION .
2 . ORDERS THE APPLICANT TO PAY THE COSTS .