Judgment of the Court (Fifth Chamber) of 13 November 1984. - Birra Wührer SpA and others v Council and Commission of the European Communities. - Maize gritz - Non-contractual liability. - Joined cases 256, 257, 265, 267/80, 5 and 51/81 and 282/82.



European Court reports 1984 Page 03693



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . COMMUNITY LAW - PRINCIPLES - ASSIGNMENT OF RIGHTS - WHETHER POSSIBLE - CONSEQUENCES

2.NON-CONTRACTUAL LIABILITY - DAMAGE - COMPENSATION - CLAIM FOR INTEREST - ADMISSIBILITY

( EEC TREATY , ART . 215 , SECOND PARA ).

Summary

1 . THE ASSIGNMENT OF RIGHTS IS IN PRINCIPLE POSSIBLE UNDER THE LAWS OF THE MEMBER STATES AND SHOULD THEREFORE ALSO BE POSSIBLE UNDER COMMUNITY LAW . THE ASSIGNEE OF A RIGHT IS SUBROGATED TO THE RIGHT OF ACTION IN THE EVENT OF AN INFRINGEMENT OF THAT RIGHT .

2.A CLAIM FOR INTEREST MADE IN CONNECTION WITH THE NON-CONTRACTUAL LIABILITY OF THE COMMUNITY UNDER THE SECOND PARAGRAPH OF ARTICLE 215 MUST BE CONSIDERED IN THE LIGHT OF THE PRINCIPLES COMMON TO THE LAWS OF THE MEMBER STATES , TO WHICH THAT PROVISION REFERS . IT FOLLOWS FROM THOSE PRINCIPLES THAT A CLAIM FOR INTEREST IS IN GENERAL ADMISSIBLE .

Parties

IN JOINED CASES 256 , 257 , 265 AND 267/80 , 5 AND 51/81 AND 282/82 ,

BIRRA WUHRER SPA , WHOSE REGISTERED OFFICE IS AT 62 VIALE BORNATA , BRESCIA , ACTING THROUGH ITS CHAIRMAN AND LEGAL REPRESENTATIVE , FRANCESCO WUHRER ,

MANGIMI NICCOLAI SPA , WHOSE REGISTERED OFFICE IS AT 196 CORSO GARIBALDI , NAPLES , ACTING THROUGH ITS MANAGING DIRECTOR , GIOVANNI NICCOLAI ,

DE FRANCESCHI MARINO & FIGLI SPA , WHOSE REGISTERED OFFICE IS AT 72A VIALE GRIGOLETTI , PORDENONE , ACTING THROUGH ITS MANAGING DIRECTOR , DINO DE FRANCESCHI ,

RISERIA MODENESE SRL , WHOSE REGISTERED OFFICE IS AT 5 VIA MINALO , CARPI ( PROVINCE OF MODENA ), ACTING THROUGH ITS LEGAL REPRESENTATIVE , NATALINO BAETTA ,

DITTA RISERIE ANGELO E GIACOMO RONCAIA , WHOSE REGISTERED OFFICE IS AT CASTELFORTE ( MANTUA ), ACTING THROUGH ITS PROPRIETORS ANGELO AND GIACOMO RONCAIA ,

REPRESENTED AND ASSISTED BY NICOLA CATALANO OF THE ROME BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , CENTRE LOUVIGNY , 34 B IV RUE PHILIPPE-II , LUXEMBOURG ,

DE FRANCESCHI SPA MONFALCONE , WHOSE REGISTERED OFFICE IS AT MONFALCONE , ACTING THROUGH ITS LEGAL REPRESENTATIVE PRO TEMPORE , COCLITE DE FRANCESCHI , AND REPRESENTED AND ASSISTED BY GIOVANNI MARIO UBERTAZZI AND FAUSTO CAPELLI OF THE MILAN BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF LOUIS SCHILTZ , 83 BOULEVARD GRANDE-DUCHESSE-CHARLOTTE ,

BIRRA PERONI SPA , WHOSE REGISTERED OFFICE IS AT 6 A VIA GUATTANI , ROME , ACTING THROUGH ITS CHAIRMAN AND LEGAL REPRESENTATIVE , GIORGIO NATALI , AND REPRESENTED BY RAIMONDO MARINI-CLARELLI OF THE ROME BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF JEAN HOSS , AVOCAT , 15 COTE D ' EICH ,

APPLICANTS ,

V

COUNCIL AND COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED , IN THE CASE OF THE COUNCIL , BY DANIEL VIGNES , THE DIRECTOR OF ITS LEGAL DEPARTMENT , ASSISTED BY ARTHUR BRAUTIGAM , AN ADMINISTRATOR IN THE LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF H . J . PABBRUWE , THE HEAD OF THE LEGAL AFFAIRS DEPARTMENT OF THE EUROPEAN INVESTMENT BANK , 100 BOULEVARD KONRAD-ADENAUER , AND , IN THE CASE OF THE COMMISSION , BY RICHARD WAINWRIGHT , ITS LEGAL ADVISER , AND GUIDO BERARDIS , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANTS ,

Subject of the case

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

Grounds

1 BY APPLICATIONS LODGED AT THE COURT REGISTRY ON 24 AND 28 NOVEMBER 1980 , 1 DECEMBER 1980 , 12 JANUARY 1981 , 9 MARCH 1981 AND 25 OCTOBER 1982 , BIRRA WUHRER AND SIX OTHER UNDERTAKINGS BROUGHT ACTIONS UNDER THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY FOR COMPENSATION FOR THE DAMAGE WHICH THEY CLAIMED TO HAVE SUFFERED ON ACCOUNT OF THE UNLAWFUL ABOLITION OF THE PRODUCTION REFUNDS FOR MAIZE GRITZ AND BROKEN RICE INTENDED FOR THE BREWING INDUSTRY BY COUNCIL REGULATIONS ( EEC ) NOS 665 AND 668/75 OF 4 MARCH 1975 , AMENDING REGULATION NO 120/67/EEC ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS AND REGULATION NO 359/67/EEC ON THE COMMON ORGANIZATION OF THE MARKET IN RICE ( OFFICIAL JOURNAL L 72 , 20 . 3 . 1975 , PP . 14 AND 18 ).

2 BY ORDERS OF 11 MARCH 1981 AND 17 FEBRUARY 1982 THE FIRST SIX CASES WERE JOINED FOR THE PURPOSES OF THE ORAL PROCEDURE AND THE JUDGMENT . THE SEVENTH CASE WAS SUBSEQUENTLY JOINED TO THOSE CASES BY ORDER OF 9 MARCH 1983 .

3 IN ITS PRELIMINARY RULING OF 19 OCTOBER 1977 IN JOINED CASES 124/76 AND 20/77 , S A MOULINS ET HUILERIES DE PONT-A-MOUSSON V OFFICE NATIONAL INTERPROFESSIONNEL DES CEREALES ; SOCIETE COOPERATIVE ' ' PROVIDENCE AGRICOLE DE LA CHAMPAGNE ' ' V OFFICE NATIONAL INTERPROFESSIONNEL DES CEREALES , (( 1977 ) ECR 1795 ), THE COURT HELD THAT THE PROVISIONS OF REGULATION NO 665/75 WERE UNLAWFUL BECAUSE THEY WERE INCOMPATIBLE WITH THE PRINCIPLE OF EQUALITY IN SO FAR AS THEY ABOLISHED THE PRODUCTION REFUNDS FOR MAIZE GROATS AND MEAL ( GRITZ ) INTENDED FOR THE BREWING INDUSTRY BUT RETAINED THEM FOR MAIZE STARCH , A COMPETING PRODUCT .

4 FOLLOWING THAT JUDGMENT , THE PRODUCTION REFUNDS FOR MAIZE GRITZ USED BY THE BREWING INDUSTRY WERE REINSTATED BY COUNCIL REGULATION ( EEC ) NO 1125/78 OF 22 MAY 1978 ( OFFICIAL JOURNAL L 142 , 30 . 5 . 1978 , P . 21 ) AND THOSE FOR BROKEN RICE INTENDED FOR THE SAME USE WERE REINSTATED BY COUNCIL REGULATION ( EEC ) NO 1127/78 OF 22 MAY 1978 ( OFFICIAL JOURNAL L 142 , 30 . 5 . 1978 , P . 24 ). THE TWO REGULATIONS ENTERED INTO FORCE ON THE THIRD DAY FOLLOWING THEIR PUBLICATION IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES . HOWEVER , THE LAST PARAGRAPH FOR ARTICLE 1 OF REGULATION NO 1125/78 AND ARTICLE 6 OF REGULATION NO 1127/78 PROVIDED THAT , AT THE REQUEST OF THE INTERESTED PARTY , THE PRODUCTION REFUNDS WERE TO BE GRANTED WITH EFFECT FROM 19 OCTOBER 1977 , THAT IS TO SAY , RETROACTIVELY WITH EFFECT FROM THE DATE OF THE COURT ' S JUDGMENT IN JOINED CASES 124/76 AND 20/77 , CITED ABOVE , AND NOT FROM THE DATES ON WHICH REGULATIONS NOS 665 AND 668/75 TOOK EFFECT .

5 THE APPLICANTS SEEK COMPENSATION FOR THE DAMAGE WHICH THEY CLAIM TO HAVE SUFFERED AS A RESULT OF THE NON-PAYMENT OF REFUNDS FOR PERIODS COMMENCING ON 1 AUGUST 1975 OR 1 SEPTEMBER 1975 - THE DATES ON WHICH REGULATIONS NOS 665 AND 668/75 , RESPECTIVELY , TOOK EFFECT - AND TERMINATING ON 19 OCTOBER 1977 . FOR ALL THE APPLICANTS , THE DAMAGE CLAIMED CONSISTS IN THE LOSS OF INCOME CORRESPONDING TO THE REFUNDS WHICH THEY WOULD HAVE BEEN PAID AS PRODUCERS OR ASSIGNEES OF PRODUCERS ' RIGHTS IF THE SAME REFUNDS HAD BEEN PAID FOR MAIZE GRITZ AND BROKEN RICE AS WERE PAID FOR STARCH .

THE PRODUCERS ' RIGHT TO INSTITUTE PROCEEDINGS

6 THE APPLICANTS IN CASES 257 , 265 AND 267/80 AND 5 AND 51/81 BASE THEIR CLAIMS ON THE FACT THAT THEY ARE PRODUCERS OF MAIZE GRITZ OR BROKEN RICE OR BOTH . THEY THEREFORE HAVE THE RIGHT TO INSTIUTE PROCEEDINGS BEFORE THE COURT . 7 HOWEVER , THE APPLICANT IN CASE 267/80 , RISERIA MODENESE , ALTHOUGH SEEKING COMPENSATION FOR THE DAMAGE WHICH IT SUSTAINED AS A RESULT OF THE NON-PAYMENT OF THE REFUNDS FOR BROKEN RICE BETWEEN 25 NOVEMBER 1975 AND 31 AUGUST 1977 - AMOUNTING , ACCORDING TO CALCULATIONS GIVEN IN ITS ANSWER TO A QUESTION PUT BY THE COURT , TO 59 9545598 ECU , FORMALLY ADMITS IN ITS REPLY AND IN ITS ANSWER TO THE COURT ' S QUESTION THAT IT ASSIGNED ITS RIGHTS FOR THE REFUNDS IN QUESTION TO BIRRA PERONI , THE APPLICANT IN CASE 282/82 . SINCE BY MEANS OF THAT ASSIGNMENT IT HAS DISPOSED OF ITS RIGHTS TO THE REFUNDS AT ISSUE , IT HAS CEASED TO BE ENTITLED TO BE COMPENSATED FOR THE DAMAGE CAUSED BY THE REFUSAL TO PAY THE REFUNDS . CONSEQUENTLY , ITS CLAIM FOR COMPENSATION MUST BE DISMISSED .

THE ASSIGNEES ' RIGHT TO INSTITUTE PROCEEDINGS

8 IN THE CASE OF BIRRA WUHRER AND BIRRA PERONI , WHICH HAVE INSTITUTED PROCEEDINGS AS ASSIGNEES OF THE PRODUCERS ' RIGHTS TO THE REFUNDS WHICH WERE UNLAWFULLY ABOLISHED , THE COMMISSION RAISES A QUESTION CONCERNING THE VALIDITY OF THE ASSIGNMENTS .

9 THE COMMISSION MAINTAINS THAT THE ASSIGNMENTS IN QUESTION CONSTITUTE A SPECIAL PROCEDURE FOR THE PAYMENT OF REFUNDS WHICH WAS LAID DOWN BY A CIRCULAR OF THE ITALIAN MINISTRY OF FINANCE AND THAT IN SOME CASES CLAIMS FOR THE PAYMENT OF REFUNDS BASED ON SUCH ASSIGNMENTS WERE MADE IN CONTRAVENTION OF THE CIRCULAR IN QUESTION , WHICH PRESCRIBES PERIODS WITHIN WHICH CLAIMS MUST BE MADE .

10 THAT ARGUMENT MUST BE REJECTED . THE ASSIGNMENT OF RIGHTS IS IN PRINCIPLE POSSIBLE UNDER THE LAWS OF THE MEMBER STATES AND SHOULD THEREFORE ALSO BE POSSIBLE UNDER COMMUNITY LAW ; CONSEQUENTLY , THE COMMISSION MAY NOT OBJECT THAT , IN A PERIOD IN WHICH THE REFUNDS WERE ABOLISHED , THE APPLICANTS FAILED TO COMPLY WITH THE ADMINISTRATIVE RULES LAID DOWN BY A MEMBER STATE GOVERNING THE SUBMISSION OF CLAIMS FOR REFUNDS BY AN ASSIGNEE .

11 THE COMMISSION ALSO CONTENDS THAT WHAT WAS ASSIGNED WAS THE RIGHT TO RECEIVE PAYMENT OF THE REFUNDS AND NOT THE RIGHT TO BE COMPENSATED FOR THE REFUSAL TO PAY THEM .

12 IT SHOULD BE POINTED OUT , HOWEVER , THAT THE ASSIGNEE OF A RIGHT IS SUBROGATED TO THE RIGHT OF ACTION IN THE EVENT OF AN INFRINGEMENT OF THAT RIGHT . CONSEQUENTLY , THE COMMISSION ' S ARGUMENT MUST BE REJECTED .

13 FINALLY , THE COMMISSION CONTENDS THAT THE ASSIGNMENTS IN QUESTION CANNOT BE EFFECTIVE , BECAUSE WHEN THEY TOOK PLACE THE ASSIGNORS , THAT IS TO SAY THE PRODUCERS OF GRITZ AND BROKEN RICE , WERE NOT ENTITLED TO THE REFUNDS , SINCE THEY HAD BEEN ABOLISHED AND NOT YET REINSTATED .

14 IN REGARD TO THAT CONTENTION IT IS SUFFICIENT TO STATE THAT THE COMMISSION MAY NOT PLEAD THE UNLAWFUL ABOLITION OF THE REFUNDS AS A DEFENCE AGAINST THE APPLICANTS , WHO HAVE BROUGHT THEIR ACTIONS SPECIFICALLY TO OBTAIN COMPENSATION FOR THE DAMAGE WHICH THEY SUBSTAINED AS A RESULT OF THE ABOLITION OF THE REFUNDS .

LIMITATION

15 BY THE JUDGMENTS WHICH IT DELIVERED ON 27 JANUARY 1982 IN THE FIRST SIX OF THESE JOINED CASES , THE COURT REJECTED THE ARGUMENT PUT FORWARD BY THE COUNCIL AND THE COMMISSION OF THE EUROPEAN COMMUNITIES TO THE EFFECT THAT THE FIVE-YEAR PERIOD OF LIMITATION LAID DOWN IN ARTICLE 43 OF THE STATUTE OF THE COURT STARTED TO RUN ON THE DATE ON WHICH THE UNLAWFUL LEGISLATIVE MEASURES WERE PUBLISHED . IN THOSE JUDGMENTS THE COURT HELD THAT THE PERIOD OF LIMITATION BEGAN WHEN ALL THE PRECONDITIONS FOR THE COMMUNITY ' S OBLIGATION TO PROVIDE COMPENSATION FOR DAMAGE WERE SATISFIED AND THAT , SINCE THE LIABILITY HAD ITS ORIGIN IN LEGISLATIVE MEASURES , THE PERIOD OF LIMITATION COMMENCED WHEN THE INJURIOUS EFFECTS OF THOSE MEASURES HAD BEEN PRODUCED IN THE FORM OF DAMAGE AND , CONSEQUENTLY , IN THE CIRCUMSTANCES OF THOSE CASES , FROM THE TIME WHEN THE PRODUCERS , AFTER COMPLETING THE TRANSACTIONS ENTITLING THEM TO THE REFUNDS , HAD INCURRED DAMAGE WHICH WAS CERTAIN IN CHARACTER ; IT COULD NOT THEREFORE BE CLAIMED THAT TIME BEGAN TO RUN AGAINST THE APPLICANTS BEFORE THE DATE ON WHICH THE INJURIOUS EFFECTS OF THE UNLAWFUL MEASURES ADOPTED BY THE COMMUNITY WERE PRODUCED .

16 IN THE LIGHT OF THE FOREGOING , IT MUST BE HELD THAT THE APPLICANTS ' RIGHTS TO COMPENSATION FOR THE DAMAGE INCURRED DURING THE FIVE YEARS BEFORE THE DATES ON WHICH EACH OF THE APPLICANTS INTERRUPTED THE FIVE-YEAR LIMITATION PERIOD , IN ACCORDANCE WITH ARTICLE 43 OF THE STATUTE OF THE COURT , ARE NOT TIME-BARRED .

17 CONSEQUENTLY , HAVING REGARD TO THE DATES ON WHICH EACH OF THE FIRST FIVE APPLICANTS APPLIED TO THE COMMISSION AND TO THE DATES ON WHICH THEY BROUGHT THEIR ACTIONS BEFORE THE COURT , THEIR APPLICATIONS SHOULD BE HELD TO BE ADMISSIBLE AS REGARDS THE DAMAGE WHICH EACH OF THE FIVE APPLICANTS CLAIMS TO HAVE SUFFERED DURING THE PERIODS TERMINATING ON 18 OCTOBER 1977 AND COMMENCING ON 18 AUGUST 1975 IN THE CASE OF BIRRA WUHRER ( CASE 256/80 ), ON 24 NOVEMBER 1975 IN THE CASE OF MANGIMI NICCOLAI ( CASE 257/80 ), ON 28 NOVEMBER 1975 IN THE CASE OF DE FRANCESCHI MARINO & FIGLI ( CASE 265/80 ), ON 12 FEBRUARY 1976 IN THE CASE OF RISERIE RONCAIA ( CASE 5/81 ) AND ON 9 MARCH 1976 IN THE CASE OF DE FRANCESCHI MONFALCONE ( CASE 51/81 ).

18 AS APPEARS FROM THE CONCLUSIONS SET OUT IN THEIR APPLICATIONS , AS CLARIFIED BY THEIR ANSWERS TO THE COURT ' S WRITTEN QUESTIONS , AND FROM THE OTHER DOCUMENTS BEFORE THE COURT , BIRRA WUHRER , MANGIMI NICCOLAI , RISERIE RONCAIA AND DE FRANCESCHI MONFALCONE SEEK COMPENSATION FOR DAMAGE WHICH THEY CLAIM TO HAVE SUFFERED DURING THE PERIODS SET OUT ABOVE . CONSEQUENTLY , THE OBJECTION THAT THOSE APPLICANT ' S ACTIONS ARE OUT OF TIME MUST BE DISMISSED .

19 AS APPEARS FROM ITS APPLICATION TO THE COMMISSION OF 8 MAY 1980 AND ITS REPLY TO A QUESTION PUT BY THE COURT , DE FRANCESCHI MARINO & FIGLI SEEKS COMPENSATION FOR DAMAGE WHICH FIRST BECAME APPARENT ON 1 AUGUST 1975 , HENCE BEFORE THE AFOREMENTIONED DATE OF 28 NOVEMBER 1975 . CONSEQUENTLY , THE OBJECTION THAT ITS ACTION IS TIME-BARRED MUST BE UPHELD IN PART , THAT IS TO SAY AS REGARDS THE AMOUNTS CLAIMED BY WAY OF COMPENSATION FOR DAMAGE WHICH OCCURRED BETWEEN 1 AUGUST AND 28 NOVEMBER 1975 , AND DISMISSED AS REGARDS THE AMOUNTS CLAIMED IN RESPECT OF DAMAGE WHICH OCCURRED DURING THE PERIOD SUBSEQUENT TO 28 NOVEMBER 1975 .

20 AS REGARDS BIRRA PERONI , THE DEFENDANT INSTITUTIONS CLAIM THAT ITS RIGHTS ARE PARTIALLY TIME-BARRED ON THE GROUND THAT IT INTERRUPTED THE FIVE-YEAR PERIOD OF LIMITATION LAID DOWN BY ARTICLE 43 OF THE STATUTE OF THE COURT BY MAKING ITS APPLICATION TO THE COMMISSION ON 23 JUNE 1982 , WHEREAS ITS APPLICATION TO THE COURT FOR COMPENSATION CONCERNS , IN PART , DAMAGE WHICH OCCURRED MORE THAN FIVE YEARS EARLIER THAN 23 JUNE 1982 .

21 IN REPLY THE APPLICANT RAISES A NEW ISSUE : IT CONTENDS THAT ONE OF THE PRECONDITIONS FOR THE HARMFUL EFFECT WHICH HAD TO BE FULFILLED BEFORE THE FIVE-YEAR LIMITATION PERIOD BEGAN TO RUN WAS THE PUBLICATION OF COUNCIL REGULATIONS NOS 1125 AND 1127 OF 28 MAY 1978 REINSTATING THE UNLAWFULLY ABOLISHED REFUNDS ; THE REGULATIONS WERE NOT PUBLISHED UNTIL 30 MAY 1978 .

22 THE APPLICANT ' S ARGUMENT CANNOT BE UPHELD . THE REGULATIONS IN QUESTION CANNOT HAVE ANY CAUSAL CONNECTION WITH THE DAMAGE COMPLAINED OF BY THE APPLICANT , WHICH OCCURRED AS A DIRECT RESULT OF THE UNLAWFUL SITUATION OBTAINING PRIOR TO THE PUBLICATION AND THE ENTRY INTO FORCE OF THOSE REGULATIONS , WHICH WERE ADOPTED WITH A VIEW TO BRINGING THAT SITUATION TO AN END .

23 IT FOLLOWS THAT , IN THE CASE OF BIRRA PERONI , WHICH CLAIMS COMPENSATION FOR DAMAGE INCURRED AS FROM 1 SEPTEMBER 1975 , THE OBJECTION THAT ITS ACTION IS TIME-BARRED MUST BE UPHELD IN PART , THAT IS TO SAY AS REGARDS THE DAMAGE WHICH OCCURRED BETWEEN 1 SEPTEMBER 1975 AND 23 JUNE 1977 , AND DISMISSED AS REGARDS THE DAMAGE WHICH OCCURRED AFTER 23 JUNE 1977 .

24 IT FOLLOWS FROM THE FOREGOING THAT THE PERIODS ACCEPTED FOR EACH OF THE APPLICANTS TERMINATE ON 18 OCTOBER 1977 AND COMMENCE AS FOLLOWS :

( A ) FOR THE APPLICANT IN CASE 256/80 , ON 18 AUGUST 1975 ;

( B)FOR THE APPLICANT IN CASE 257/80 , ON 24 NOVEMBER 1975 ;

( C)FOR THE APPLICANT IN CASE 265/80 , ON 28 NOVEMBER 1975 ;

( D)FOR THE APPLICANT IN CASE 5/81 , ON 12 JANUARY 1975 ;

( E)FOR THE APPLICANT IN CASE 51/81 , ON 9 MARCH 1976 ; AND

( F)FOR THE APPLICANT IN CASE 282/82 , ON 23 JUNE 1977 .

THE COMMUNITY ' S LIABILITY

25 AS THE COURT HELD IN ITS JUDGMENTS OF 4 OCTOBER 1979 IN THE CASES CITED ABOVE , IN ITS JUDGMENT OF 18 MAY 1983 IN CASE 256/81 ( PAULS AGRICULTURE V COUNCIL AND COMMISSION OF THE EUROPEAN COMMUNITIES , ( 1983 ) ECR 1707 ) AND IN OTHER JUDGMENTS IN SIMILAR CASES , THE COMMUNITY HAS INCURRED LIABILITY BECAUSE IT ABOLISHED THE REFUNDS FOR MAIZE GRITZ BY REGULATION NO 665/75 AND THOSE FOR BROKEN RICE BY REGULATION NO 668/75 AND YET RETAINED THEM FOR MAIZE STARCH , THUS INFRINGING THE PRINCIPLE THAT THERE SHOULD BE EQUAL TREATMENT FOR THE VARIOUS CATEGORIES OF PRODUCER CONCERNED .

THE DAMAGE

26 AGAINST THE CLAIMS FOR DAMAGES CALCULATED ON THE BASIS OF THE REFUNDS THAT WERE NOT PAID DURING THE PERIODS IN QUESTION , THE COUNCIL AND THE COMMISSION HAVE RAISED THE OBJECTION THAT THE APPLICANT PRODUCERS OR , WHERE THE APPLICANTS ARE ASSIGNEES , THEIR SUPPLIERS ELIMINATED OR COULD HAVE ELIMINATED THE DAMAGE BY PASSING ON IN THEIR SELLING PRICES THE LOSSES CAUSED BY THE ABOLITION OF THE REFUNDS . THEY CONTEND THAT IT IS FOR THE APPLICANTS TO PROVE THE CONTRARY IN ORDER FOR THEIR ACTIONS TO BE CONSIDERED WELL FOUNDED .

27 FOR THEIR PART , THE APPLICANTS DENY THAT IT WAS POSSIBLE TO PASS ON THE LOSSES IN THAT WAY . IN THE ALTERNATIVE , THEY CONTEND THAT IN ANY EVENT THE BURDEN OF PROOF WOULD NORMALLY BE BORNE BY THE DEFENDANT INSTITUTIONS , SINCE THEY HAVE RAISED AN OBJECTION RELATING TO THE ACTUAL CHARACTER OF THE DAMAGE . NEVERTHELESS , THE APPLICANTS HAVE SUBMITTED CERTAIN MATERIAL AND STATISTICAL DATA TO SHOW THAT THE LOSSES WERE NOT PASSED ON FOR COMMERCIAL REASONS AND THAT ANY INCREASES WHICH TOOK PLACE IN THE PRICE OF BEER IN ITALY WERE DUE TO OTHER FACTORS , IN PARTICULAR FACTORS OF AN ECONOMIC AND FISCAL CHARACTER .

28 SINCE THE DEFENDANT INSTITUTIONS HAVE PRODUCED NO EVIDENCE CASTING DOUBT UPON THOSE DATA OR THE CONCLUSIONS WHICH THE APPLICANTS DRAW THEREFROM , THEIR OBJECTION CANNOT BE UPHELD .

29 IT IS TRUE THAT THE DEFENDANT INSTITUTIONS HAVE PUT FORWARD THE ARGUMENT THAT IT MAY BE ASSUMED THAT THE PRODUCERS PASSED ON THE DAMAGE IN THEIR SELLING PRICES BECAUSE THE RIGHTS TO THE REFUNDS WERE ASSIGNED AND THAT THAT ASSIGNMENT MUST SURELY HAVE BEEN EFFECTED IN RETURN FOR AN INCREASE IN PRICES . THEY FURTHER MAINTAIN THAT THE PRESUMED PRICE INCREASE INDICATES THAT , EVEN WHERE RIGHTS WERE NOT ASSIGNED TO BREWERIES , THE LOSSES WERE LARGELY PASSED ON IN PRODUCERS ' SELLING PRICES , SINCE THE APPLICANT PRODUCERS ' PRICES WERE ALL ON THE SAME LEVEL .

30 THAT LINE OF ARGUMENT MUST BE REJECTED , IT CANNOT BE CONSIDERED PROVEN THAT THE ASSIGNMENTS WERE EFFECTED IN RETURN FOR AN INCREASE IN SELLING PRICES AND EVEN LESS THAT , EVEN WHERE NO ASSIGNMENT TOOK PLACE , THERE WAS A GENERALIZED PRICE INCREASE .

31 AS REGARDS THE APPLICANTS WHICH HAVE INSTITUTED PROCEEDINGS AS ASSIGNEES , THE DEFENDANTS CONTEND , CONTRARY TO THE PRECEDING LINE OF ARGUMENT , THAT IN ORDER TO ESTABLISH ACTUAL DAMAGE THOSE APPLICANTS MUST PROVE THAT THEY PAID THE PRODUCERS WHO ASSIGNED THOSE RIGHTS TO THEM A SUPPLEMENTARY PRICE CORRESPONDING TO THE UNPAID REFUNDS .

32 THAT ARGUMENT CANNOT BE ACCEPTED EITHER . THE ASSIGNEES DO NOT BASE THEIR CLAIM ON THE ASSIGNORS ' HAVING PASSED ON TO THEM AMOUNTS CORRESPONDING TO THE REFUNDS AT ISSUE . THEY CLAIM THAT THEY SUFFERED DAMAGE BECAUSE THEY DID NOT RECEIVE REFUNDS ON THE BASIS OF THE RIGHTS WHICH HAD BEEN ASSIGNED TO THEM . CONSEQUENTLY , THE QUESTION WHETHER THERE WAS A QUID PRO QUO FOR THE RIGHTS ASSIGNED TO THEM AND , IF SO , THE FORM WHICH IT TOOK IS NOT RELEVANT .

33 IT FOLLOWS FROM THE FOREGOING THAT THE DAMAGE FOR WHICH THE APPLICANTS MUST BE COMPENSATED HAS TO BE CALCULATED ON THE BASIS OF ITS BEING EQUIVALENT TO THE REFUNDS WHICH WOULD HAVE BEEN PAID TO THEM IF , DURING THE PERIODS SET OUT ABOVE , MAIZE GRITZ AND BROKEN RICE USED BY THE BREWING INDUSTRY HAD QUALIFIED FOR THE SAME REFUNDS AS MAIZE STARCH .

34 AS REGARDS THE CONVERSION INTO NATIONAL CURRENCY OF THE DAMAGES TO BE PAID BY THE DEFENDANT INSTITUTIONS TO THE APPLICANTS , AS THE COURT HELD IN ITS JUDGMENTS OF 19 MAY 1982 IN JOINED CASES 64 AND 113/76 , 167 AND 239/78 , 27 , 28 AND 45/79 ( P . DUMORTIER FRERES S A AND OTHERS V COUNCIL OF THE EUROPEAN COMMUNITIES , (( 1982 ) ECR 1733 ) AND OF 18 MAY 1983 IN CASE 256/81 ( PAULS AGRICULTURE LIMITED V COUNCIL AND COMMISSION OF THE EUROPEAN COMMUNITIES , CITED ABOVE ), THE RATE OF EXCHANGE TO BE APPLIED IS THAT PREVAILING AT THE DATE OF THE JUDGMENT IN WHICH IT WAS HELD THAT THERE WAS AN OBLIGATION TO MAKE GOOD THE DAMAGE .

35 AS FAR AS THE QUANTUM OF DAMAGES SOUGHT BY EACH OF THE APPLICANTS IS CONCERNED , THE LATTER HAVE SUBMITTED A NUMBER OF DOCUMENTS TO THE COURT AS PROOF OF THE QUANTITIES OF MAIZE GRITZ AND BROKEN RICE FOR WHICH THEY CLAIM TO BE ENTITLED TO COMPENSATION AND OF THE AMOUNTS OF THE REFUNDS NOT PAID IN RESPECT OF THOSE QUANTITIES . THE COMMISSION IS PREPARED TO ACCEPT THE ACCURACY OF THOSE QUANTITIES ONLY ON CONDITION THAT THEY ARE VERIFIED BY THE COMPETENT AUTHORITIES . THE COURT IS NOT IN A POSITION AT THIS STAGE OF THE PROCEDURE TO GIVE A DECISION ON THE ACCURACY OF THOSE DATA . THEREFORE , IT IS NECESSARY TO LAY DOWN BY INTERLOCUTORY JUDGMENT THE CRITERIA WHEREBY THE COURT CONSIDERS THAT THE APPLICANTS MUST BE COMPENSATED , LEAVING THE AMOUNT OF THE COMPENSATION TO BE DETERMINED EITHER BY AGREEMENT BETWEEN THE PARTIES OR BY THE COURT IN THE ABSENCE OF SUCH AGREEMENT .

Decision on costs

THE CLAIM FOR INTEREST

36 THE APPLICANTS FURTHER CLAIM THAT THE COMMUNITY SHOULD BE ORDERED TO PAY INTEREST AT APPROPRIATE RATES FROM THE DATES ON WHICH THE PAYMENT OF EACH REFUND BECAME DUE SO AS TO TAKE ACCOUNT OF THE TIME WHICH ELAPSED BETWEEN THOSE DATES AND THE DATE ON WHICH THE DAMAGE IS ACTUALLY MADE GOOD .

37 SINCE THE CLAIM CONCERNS THE NON-CONTRACTUAL LIABILITY OF THE COMMUNITY UNDER THE SECOND PARAGRAPH OF ARTICLE 215 , IT MUST BE CONSIDERED IN THE LIGHT OF THE PRINCIPLES COMMON TO THE LAWS OF THE MEMBER STATES , TO WHICH THAT PROVISION REFERS . IT FOLLOWS FROM THOSE PRINCIPLES THAT A CLAIM FOR INTEREST IS IN GENERAL ADMISSIBLE . TAKING INTO ACCOUNT THE CRITERIA LAID DOWN BY THE COURT IN SIMILAR CASES , THE OBLIGATION TO PAY INTEREST ARISES ON THE DATE OF THIS JUDGMENT , INASMUCH AS IT ESTABLISHES THE OBLIGATION TO MAKE GOOD THE DAMAGE . THE RATE OF INTEREST WHICH IT IS PROPER TO APPLY IS 6% .

Operative part

ON THOSE GROUNDS ,

THE COURT ( FIFTH CHAMBER ),

AS AN INTERLOCUTORY DECISION ,

HEREBY :

1 . DISMISSES THE APPLICATION MADE BY RISERIA MODENESE IN CASE 267/80 ;

2.ORDERS THE EUROPEAN ECONOMIC COMMUNITY TO PAY THE OTHER APPLICANTS AMOUNTS EQUIVALENT TO THE PRODUCTION REFUNDS FOR MAIZE GRITZ AND BROKEN RICE USED BY THE BREWING INDUSTRY WHICH THEY WOULD HAVE RECEIVED IF , DURING THE PERIODS COMMENCING ON 1 AUGUST AND 1 SEPTEMBER 1975 AND TERMINATING ON 19 OCTOBER 1977 , THE USE OF MAIZE AND RICE FOR THAT PURPOSE HAD CONFERRED AN ENTITLEMENT TO THE SAME REFUNDS AS THE USE OF MAIZE FOR THE MANUFACTURE OF STARCH ; FOR EACH APPLICANT THE PERIOD IN QUESTION IS AS FOLLOWS :

( A ) BIRRA WUHRER ( CASE 256/80 ), 4 SEPTEMBER 1975 TO 19 OCTOBER 1977 ;

( B)MANGIMI NICCOLAI ( CASE 257/80 ), 16 MARCH 1976 TO 19 OCTOBER 1977 ;

( C)DE FRANCESCHI MARINO & FIGLI ( CASE 265/80 ), 28 NOVEMBER 1975 TO 19 OCTOBER 1977 ;

( D)RISERIE RONCAIA ( CASE 5/81 ), 26 JANUARY TO 19 OCTOBER 1977 ;

( E)DE FRANCESCHI MONFALCONE ( CASE 51/81 ), 4 APRIL TO 19 OCTOBER 1977 ; AND

( F)BIRRA PERONI ( CASE 282/82 ), 23 JUNE TO 19 OCTOBER 1977 ;

3.ORDERS THAT INTEREST AT THE RATE OF 6% SHALL BE PAID ON THE ABOVE-MENTIONED AMOUNTS AS FROM THE DATE OF THIS JUDGMENT , WHICH SHALL ALSO BE THE DATE TO BE TAKEN INTO ACCOUNT FOR THE PURPOSES OF THE CONVERSION OF THOSE AMOUNTS INTO NATIONAL CURRENCY ;

4.ORDERS THE PARTIES TO INFORM THE COURT WITHIN SIX MONTHS FROM THE DELIVERY OF THIS JUDGMENT OF THE AMOUNTS OF COMPENSATION ARRIVED AT BY AGREEMENT ;

5.ORDERS THAT , IN THE ABSENCE OF AGREEMENT , THE PARTIES SHALL TRANSMIT TO THE COURT WITHIN THE SAME PERIOD A STATEMENT OF THEIR VIEWS WITH SUPPORTING FIGURES ;

6.RESERVES THE COSTS .