Judgment of the Court of 15 December 1977. - Firma Gebrüder Dietz v Commission of the European Communities. - Monetary compensatory amounts. - Case 126-76.



European Court reports 1977 Page 02431

Greek special edition Page 00773

Portuguese special edition Page 00885



Parties

Subject of the case

Grounds

Decision on costs

Operative part



Parties

IN CASE 126/76

FIRMA GEBRUDER DIETZ , 15 OBERLINDAU , 6000 FRANKFURT AM MAIN , REPRESENTED BY MESSRS D . EHLE , U . FELDMANN AND U . WIEMANN , ADVOCATES AT THE COLOGNE BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF FELICIEN JANSEN , HUISSIER DE JUSTICE , 21 , RUE ALDRINGEN ,

APPLICANT ,

V COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , G . ZUR HAUSEN , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF M . CERVINO , LEGAL ADVISER TO THE COMMISSION , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR DAMAGES UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY ,

Grounds

1 THE APPLICATION , LODGED ON 23 DECEMBER 1976 , IS FOR AN ORDER THAT THE EUROPEAN COMMUNITY SHOULD PAY THE SUM OF DM 329 429.40 AS COMPENSATION FOR THE DAMAGE WHICH THE APPLICANT CLAIMS TO HAVE SUFFERED AS THE RESULT OF THE APPLICATION TO ITALY , BY REGULATION NO 2887/71 OF THE COMMISSION OF 30 DECEMBER 1971 ( OJ ENGLISH SPECIAL EDITION 1966 TO 1972 , P . 67 ) OF THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS FIXED IN AGRICULTURE FOLLOWING THE TEMPORARY WIDENING OF THE MARGINS OF FLUCTUATION FOR THE CURRENCIES OF CERTAIN MEMBER STATES .

2 THE APPLICANT HAD CONCLUDED ON 17 DECEMBER 1971 A SALES CONTRACT WITH AN ITALIAN UNDERTAKING FOR THE DELIVERY BETWEEN JANUARY AND JUNE 1972 OF APPROXIMATELY 10 000 TONNES OF WHITE SUGAR .

IT STATES THAT THE PRICE WAS CALCULATED IN LIRE TAKING INTO ACCOUNT THE MONETARY COMPENSATORY AMOUNTS PROVIDED FOR BY REGULATION NO 2635/71 OF THE COMMISSION OF 10 DECEMBER 1971 ( OJ L 273 , P . 1 ) FOR EXPORTS FROM GERMANY INTO ITALY .

FOLLOWING THE DECISION TAKEN BY ITALY TO APPLY THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS , THE COMMISSION FIXED IN ITS REGULATION NO 2887/71 OF 30 DECEMBER 1971 DETAILED RULES FOR THE APPLICATION OF THE MONETARY COMPENSATORY AMOUNTS TO BE IMPOSED ON IMPORTS INTO ITALY BUT WITHOUT LAYING DOWN TRANSITIONAL MEASURES IN RESPECT OF OLD CONTRACTS .

THE RESULT OF THESE NEW RULES WITH REGARD TO THE APPLICANT WAS THAT THE MONETARY COMPENSATORY AMOUNT WHICH SHOULD HAVE BEEN GRANTED TO IT IN GERMANY ON ITS EXPORTS TO ITALY WAS REDUCED BY THE COMPENSATORY AMOUNT APPLIED TO THE GOODS IN ITALY , WITH THE EFFECT THAT IT SUFFERED A LOSS ON THOSE EXPORTS .

ADMISSIBILITY

3 THE COMMISSION , THE DEFENDANT , OBJECTS THAT THE APPLICATION IS INADMISSIBLE , IN THAT AN APPLICATION FOR DAMAGES UNDER ARTICLES 178 AND 215 OF THE TREATY MAY NOT BE USED IN ORDER TO CALL IN QUESTION NATIONAL MEASURES RELATING TO THE APPLICATION OF COMMUNITY PROVISIONS .

FOR SUCH AN APPLICATION TO BE ADMISSIBLE , IT IS NECESSARY FOR ALL NATIONAL METHODS OF RECOURSE TO HAVE BEEN EXHAUSTED .

THE FACT WHICH GAVE RISE TO THE PRESENT DISPUTE IS THE REFUSAL BY THE HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) HAMBURG-JONAS TO GRANT THE APPLICANT THE COMPENSATORY AMOUNT WHICH IT CLAIMED ON THE BASIS OF ITS EXPORTS TO ITALY .

THE APPLICANT , WHICH TOOK THE VIEW THAT IT WAS ADVERSELY AFFECTED BY AN IMPLEMENTING MEASURE ADOPTED BY THE NATIONAL AUTHORITIES , SHOULD HAVE CONTESTED THAT MEASURE BEFORE THE NATIONAL COURT SINCE THAT COURSE OF ACTION WAS , WHERE APPROPRIATE , SUCH AS TO PROMPT THE GERMAN COURTS TO SUBMIT TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE TREATY THE QUESTION OF THE VALIDITY OF REGULATION NO 2887/71 .

4 THE APPLICANT INSTITUTED PROCEEDINGS IN THE FEDERAL REPUBLIC OF GERMANY BUT AS IT WAS UNCERTAIN WHETHER THE COURT WOULD COMPLY WITH ITS SUGGESTION THAT THE QUESTION SHOULD BE REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING , IT LODGED THE PRESENT APPLICATION BEARING IN MIND THE PERIOD OF LIMITATION LAID DOWN IN ARTICLE 43 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE .

5 ACCORDING TO THE APPLICANT , THE DAMAGE SUFFERED DOES NOT RESULT FROM MEASURES ADOPTED BY THE NATIONAL AUTHORITIES BUT FROM AN OMISSION ON THE PART OF THE COMMISSION WITHIN THE CONTEXT OF THE REGULATIONS ISSUED IN IMPLEMENTATION OF ARTICLE 6 OF REGULATION NO 974/71 .

THE COURT HAS ONLY STATED THAT IT HAS NO JURISDICTION IN CASES IN WHICH THE APPLICATION WAS IN FACT DIRECTED AGAINST MEASURES ADOPTED BY THE NATIONAL AUTHORITIES FOR THE PURPOSE OF APPLYING PROVISIONS OF COMMUNITY LAW .

EVEN IF THE COURT , WITHIN THE CONTEXT OF PROCEEDINGS FOR A PRELIMINARY RULING , CONSIDERED THAT THE RULES APPLICABLE WERE SUCH AS TO CAUSE DAMAGE BECAUSE OF THE ABSENCE OF APPROPRIATE TRANSITIONAL MEASURES , THE NATIONAL COURT WOULD NOT BE EMPOWERED TO ADOPT THOSE MEASURES ITSELF , WITH THE RESULT THAT A DIRECT APPLICATION TO THE COURT ON THE BASIS OF ARTICLE 215 OF THE TREATY WOULD STILL BE NECESSARY .

6 THE MATTER HAS BEEN BROUGHT BEFORE THE COURT WITHIN THE BOUNDS OF ITS JURISDICTION AND IT IS THEREFORE UNDER A DUTY TO EXAMINE WHETHER THE ALLEGED OMISSION IN THE COMMUNITY REGULATIONS ISSUED IN IMPLEMENTATION OF ARTICLE 6 OF REGULATION NO 974/71 CONSTITUTES AN INFRINGEMENT OF THE LAW SUCH AS TO INCUR THE LIABILITY OF THE COMMUNITY .

7 THE APPLICATION IS THEREFORE ADMISSIBLE .

THE SUBSTANCE OF THE CASE

8 THE APPLICANT CLAIMS THAT THE APPLICATION OF THE SYSTEM OF COMPENSATORY AMOUNTS TO ITALY BY REGULATION NO 2887/71 CAUSED IT DAMAGE BECAUSE THE COMMISSION OMITTED TO LAY DOWN SPECIAL OR TRANSITIONAL RULES PROTECTING EXPORT CONTRACTS CONCLUDED PRIOR TO 19 DECEMBER 1971 .

THE COMMISSION , BY NOT PROTECTING THE LEGITIMATE EXPECTATION OF INDIVIDUALS , THUS COMMITTED A FLAGRANT BREACH OF A SUPERIOR RULE OF LAW AND INCURRED THE LIABILITY OF THE COMMUNITY UNDER THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY .

THAT REGULATION EXEMPTED FROM COMPENSATORY AMOUNTS IMPORTS INTO ITALY CARRIED OUT AS THE RESULT OF CONTRACTS WHICH WERE CONCLUDED BEFORE 19 DECEMBER 1971 AND REGISTERED BEFORE 28 DECEMBER 1971 WITH THE AUTHORITIES OF THE RELEVANT MEMBER STATE OR WHICH CAN BE PROVED BY OFFICIAL DOCUMENTS TO HAVE BEEN CONCLUDED .

ON THE OTHER HAND , THE REGULATION DID NOT PROVIDE FOR AN EXEMPTION FOR EXPORTS FROM ONE MEMBER STATE TO ANOTHER WHICH WERE CARRIED OUT AS A RESULT OF SIMILAR CONTRACTS .

THE FACT THAT ITALY WOULD ADHERE TO THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS WAS NOT FORESEEABLE AT THE DATE OF THE EXPORT CONTRACT , 17 DECEMBER 1971 , AND THE APPLICANT WAS THEREFORE ABLE TO ENTER INTO THE CONTRACT ON THE BASIS OF THE LEGAL SITUATION IN FORCE AT THAT TIME AND TO EXPECT THAT IN THE UNFORESEEABLE CASE OF THE APPLICATION OF THE SYSTEM IN ITALY , THE COMMISSION WOULD ISSUE APPROPRIATE TRANSITIONAL PROVISIONS FOR THE PURPOSE OF PROTECTING THE LEGITIMATE INTERESTS OF EXPORTERS WHO WERE BOUND BY CONTRACTS CONCLUDED BEFORE THE DATE OF APPLICATION OF THE SYSTEM .

MOREOVER , THE PRINCIPLE OF EQUALITY HAS BEEN INFRINGED IN THAT ARTICLE 4 OF THE REGULATION IN QUESTION PROVIDED FOR AN EXEMPTION FOR EXISTING IMPORT CONTRACTS , BUT NOT FOR EXPORT CONTRACTS .

9 IT WAS INHERENT IN THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS , AS FOLLOWS FROM ARTICLE 1 OF REGULATION NO 974/71 ALONE , THAT IF ITALY PERMITTED THE EXCHANGE RATE OF ITS CURRENCY TO FLUCTUATE TO THE EXTENT LAID DOWN IN ARTICLE 1 OF THAT REGULATION , MONETARY COMPENSATORY AMOUNTS MIGHT BECOME APPLICABLE IN ITALY .

MOREOVER , THE CONSEQUENCES OF ANY EXTENSION OF THE SYSTEM WERE SET OUT IN ARTICLE 2 THE SAME REGULATION AND WERE THEREFORE FORESEEABLE .

THE PREVIOUS REGULATIONS OF THE COMMISSION LAYING DOWN DETAILED RULES FOR THE APPLICATION OF REGULATION NO 974/71 , IN OTHER WORDS REGULATIONS NO 1013/71 OF 17 MAY 1971 ( OJ ENGLISH SPECIAL EDITION 1966-1972 , P . 52 ) AND REGULATION NO 1871/71 OF 27 AUGUST 1971 ( OJ ENGLISH SPECIAL EDITION 1966-1972 , P . 58 ) NEVER LAID DOWN SPECIAL RULES FOR EXPORTS BUT ONLY FOR IMPORTS .

THEREFORE NEITHER THE APPLICATION OF THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS TO ITALY NOR THE ABSENCE OF TRANSITIONAL MEASURES PROTECTING OLD EXPORT CONTRACTS INFRINGES THE PRINCIPLE OF THE PROTECTION OF THE LEGITIMATE EXPECTATION OF INTERESTED PARTIES .

NOR DID THE INCLUSION OF TRANSITIONAL PROVISIONS RELATING TO OLD IMPORT CONTRACTS INFRINGE THE PRINCIPLE OF EQUALITY , SINCE THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS DID NOT HAVE IDENTICAL EFFECTS ON THE TRANSACTIONS CARRIED OUT BY IMPORTERS AND ON THOSE CARRIED OUT BY EXPORTERS .

10 CONSEQUENTLY , THE APPLICATION MUST BE DISMISSED .

Decision on costs

COSTS

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

THE APPLICANT HAS FAILED IN ITS SUBMISSIONS .

IT MUST THEREFORE BE ORDERED TO PAY THE COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ,

HEREBY :

1 . DISMISSES THE APPLICATION .

2 . ORDERS THE APPLICANT TO BEAR THE COSTS .