Judgment of the Court of 4 October 1979. - P. Dumortier frères SA and others v Council of the European Communities. - Maize gritz - Liability. - Joined cases 64 and 113/76, 167 and 239/78, 27, 28 and 45/79.



European Court reports 1979 Page 03091

Greek special edition Page 00515



Summary

Parties

Subject of the case

Grounds

Operative part



Keywords

1 . ACTION FOR DAMAGES - SUBJECT-MATTER - COMPENSATION FOR DAMAGE ARISING FROM THE ABOLITION OF REFUNDS - PLEA OF INADMISSIBILITY BASED ON THE FAILURE TO BRING AN ACTION FOR PAYMENT OF THE REFUNDS IN THE NATIONAL COURTS - REJECTION OF THAT PLEA

( EEC TREATY , ART . 178 AND SECOND PARAGRAPH OF ART . 215 )

2 . ACTION FOR DAMAGES - ACTION FOR PAYMENT OF AMOUNTS DUE UNDER COMMUNITY LAW - INADMISSIBILITY

( EEC TREATY , ART . 178 AND SECOND PARAGRAPH OF ART . 215 )

3 . ACTION FOR DAMAGES - PARALLEL ACTION BEFORE THE NATIONAL COURTS - DIFFERENT SUBJECT-MATTER AND LEGAL BASIS - PLEA OF LIS ALIBI PENDENS - INADMISSIBILITY

( EEC TREATY , ART . 178 AND SECOND PARAGRAPH OF ART . 215 )

4 . NON-CONTRACTUAL LIABILITY - LEGISLATIVE MEASURE INVOLVING CHOICES OF ECONOMIC POLICY - LIABILITY OF THE COMMUNITY - CONDITIONS - SUFFICIENTLY SERIOUS BREACH OF A SUPERIOR RULE OF LAW FOR THE PROTECTION OF THE INDIVIDUAL - UNUSUAL AND SPECIAL NATURE OF DAMAGE

( EEC TREATY , SECOND PARAGRAPH OF ART . 215 )

5 . NON-CONTRACTUAL LIABILITY - DAMAGE - ASSESSMENT - CRITERIA - DAMAGE PASSED ON TO OTHER TRADERS - TAKEN INTO ACCOUNT

( EEC TREATY , SECOND PARAGRAPH OF ART . 215 )

6 . NON-CONTRACTUAL LIABILITY - DAMAGE AS A RESULT OF AN UNLAWFUL LEGISLATIVE MEASURE - COMPENSATION - CONDITIONS - DIRECT NATURE OF DAMAGE

( EEC TREATY , SECOND PARAGRAPH OF ART . 215 )

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

( EEC TREATY , SECOND PARAGRAPH OF ART . 215 )

Summary

1 . AN ACTION FOR DAMAGES BROUGHT UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY , SEEKING COMPENSATION FOR THE DAMAGE ARISING FROM THE ABOLITION OF REFUNDS , CANNOT BE MET BY A PLEA OF INADMISSIBILITY BASED ON THE ARGUMENT THAT THE APPLICANT SHOULD HAVE BROUGHT AN ACTION FOR PAYMENT OF THE SAID REFUNDS AGAINST THE COMPETENT NATIONAL BODIES IN A NATIONAL COURT , SINCE SUCH AN ACTION CANNOT BE CLASSED AS A CLAIM FOR THE PAYMENT OF AMOUNTS DUE UNDER THE COMMUNITY RULES AND SINCE IT IS MOREOVER SETTLED THAT A NATIONAL COURT COULD NOT HAVE UPHELD AN ACTION FOR THE PAYMENT OF SUCH SUMS IN THE ABSENCE OF ANY PROVISION OF COMMUNITY LAW AUTHORIZING THE NATIONAL BODIES TO PAY THE AMOUNTS CLAIMED .

2 . AN ACTION FOR PAYMENT OF AMOUNTS DUE UNDER THE COMMUNITY REGULATIONS MAY NOT BE BROUGHT UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY .

3 . THE PRINCIPLES APPLICABLE TO CONCURRENCY OF PROCEEDINGS , RECOGNIZED IN THE NATIONAL SYSTEMS OF LEGAL PROCEDURE , MAY NOT BE RELIED ON IN ORDER TO CONTEST , BY REASON OF A PARALLEL ACTION BROUGHT BEFORE A NATIONAL COURT BY THE SAME APPLICANT , THE ADMISSIBILITY OF AN ACTION BROUGHT BEFORE THE COURT OF JUSTICE , SINCE THE SUBJECT-MATTER AND LEGAL BASIS ARE DIFFERENT .

SUCH IS THE CASE WHEN A PERSON BRINGS AN ACTION BEFORE THE COURT UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY SEEKING COMPENSATION FOR THE DAMAGE WHICH HE CLAIMS TO HAVE SUFFERED AS A RESULT OF THE ABOLITION OF A REFUND AND ALSO BRINGS AN ACTION BEFORE A NATIONAL COURT FOR THE ANNULMENT OF THE COMPETENT NATIONAL BODY ' S REFUSAL TO PAY THAT REFUND . IN FACT THE LATTER COURT HAS NO JURISDICTION TO RULE ON THE NON-CONTRACTUAL LIABILITY OF THE COMMUNITY .

4 . THE FINDINGS THAT A LEGAL SITUATION RESULTING FROM A LEGISLATIVE MEASURE OF THE COMMUNITY IS UNLAWFUL IS NOT SUFFICIENT IN ITSELF TO GIVE RISE TO THE LIABILITY OF THE COMMUNITY UNDER THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY . WHEN SUCH A MEASURE IMPLIES CHOICES OF ECONOMIC POLICY IT IS FURTHER NECESSARY THAT IT BE VITIATED BY A SUFFICIENTLY SERIOUS BREACH OF A SUPERIOR RULE OF LAW FOR THE PROTECTION OF THE INDIVIDUAL .

IN THE CONTEXT OF COMMUNITY PROVISIONS IN WHICH ONE OF THE CHIEF FEATURES IS THE EXERCISE OF A WIDE DISCRETION ESSENTIAL FOR THE IMPLEMENTATION OF THE COMMON AGRICULTURAL POLICY THE COMMUNITY MAY INCUR LIABILITY ONLY IN EXCEPTIONAL CASES , NAMELY WHERE THE INSTITUTION CONCERNED MANIFESTLY AND GRAVELY DISREGARDED THE LIMITS ON THE EXERCISE OF ITS POWERS .

SUCH MAY BE THE CASE IF THAT INSTITUTION HAS ACTED CONTRARY TO THE PRINCIPLES OF EQUALITY EMBODIED IN PARTICULAR IN THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE EEC TREATY , IF THE DISREGARD OF THAT PRINCIPLE AFFECTED A LIMITED AND CLEARLY DEFINED GROUP OF COMMERCIAL OPERATORS , IF THE DAMAGE THUS CAUSED GOES BEYOND THE BOUNDS OF THE ECONOMIC RISKS INHERENT IN THE ACTIVITIES IN THE SECTOR CONCERNED AND FINALLY IF THE SAID INSTITUTION ENDED THE EQUALITY OF TREATMENT EXISTING PRIOR TO THE ADOPTION OF THE CONTESTED MEASURE WITHOUT SUFFICIENT JUSTIFICATION .

5 . IN THE CONTEXT OF AN ACTION FOR DAMAGES , IN ORDER TO DECIDE UPON THE EXISTENCE OR EXTENT OF THE DAMAGE ALLEGED BY THE APPLICANT , IT IS NECESSARY TO TAKE INTO ACCOUNT , IN AN APPROPRIATE CASE , THE FACT THAT THE APPLICANT WAS ABLE TO PASS ON IN HIS SELLING PRICES THE DISADVANTAGES FOR WHICH HE CLAIMS COMPENSATION .

6 . IN THE FIELD OF NON-CONTRACTUAL LIABILITY OF PUBLIC AUTHORITIES FOR LEGISLATIVE MEASURES , THE PRINCIPLES COMMON TO THE LAWS OF THE MEMBER STATES TO WHICH THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY REFERS CANNOT BE RELIED ON TO DEDUCE AN OBLIGATION TO MAKE GOOD EVERY HARMFUL CONSEQUENCE , EVEN A REMOTE ONE , OF UNLAWFUL LEGISLATION ; THE DAMAGE ALLEGED MUST BE A SUFFICIENTLY DIRECT CONSEQUENCE OF THE UNLAWFUL CONDUCT OF THE INSTITUTION CONCERNED .

7 . IT FOLLOWS FROM THE PRINCIPLES COMMON TO THE LEGAL SYSTEMS OF THE MEMBER STATES , TO WHICH THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY REFERS , THAT IN THE CONTEXT OF AN ACTION FOR DAMAGES A CLAIM FOR INTEREST IS GENERALLY ADMISSIBLE .

Parties

IN JOINED CASES 64 AND 113/76 , 167 AND 239/78 , 27 , 28 AND 45/79 ,

P . DUMORTIER FRERES , S.A ., TOURCOING ( CASE 64/76 ),

MAISERIES DU NORD , S.A ., MARQUETTE-LEZ-LILLE ( CASE 113/76 ),

MOULINS & HUILERIES DE PONT-A-MOUSSON , S.A ., PONT-A-MOUSSON ( CASE 167/78 ),

LES MAISERIES DE BEAUCE , S.A.R.L . ( MOULIN DE MARBOUE ), MARBOUE ( CASE 239/78 ),

COSTIMEX , S.A ., STRASBOURG ( CASE 27/79 ),

' ' LA PROVIDENCE AGRICOLE DE LA CHAMPAGNE ' ' , SOCIETE COOPERATIVE AGRICOLE , RHEIMS ( CASE 28/79 ),

MAISERIES ALSACIENNES S.A ., COLMAR ( CASE 45/79 ),

REPRESENTED BY G . LESOURD , ADVOCATE AT THE CONSEIL D ' ETAT AND THE COUR DE CASSATION , PARIS , AND BY E . JAUDEL , ADVOCATE AT THE COUR D ' APPEL , PARIS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT , CENTRE LOUVIGNY , 34/B/IV , RUE PHILLIPPE II ,

APPLICANTS ,

V

COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY D . VIGNES , DIRECTOR OF THE LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY Y . CRETIEN , AN ADMINISTRATOR IN THE SAID DEPARTMENT , ACTING AS JOINT AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF J . N . VAN DEN HOUTEN , DIRECTOR OF THE LEGAL DEPARTMENT OF THE EUROPEAN INVESTMENT BANK , 2 PLACE DE METZ ,

DEFENDANT ,

Subject of the case

APPLICATIONS UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY ,

Grounds

1 THE APPLICANTS IN THESE CASES REQUEST THAT THE EUROPEAN ECONOMIC COMMUNITY , REPRESENTED BY THE COUNCIL , BE ORDERED , PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY , TO COMPENSATE THEM FOR THE LOSS WHICH THEY CLAIM TO HAVE SUFFERED ON ACCOUNT OF THE ABOLITION OF THE PRODUCTION REFUNDS FOR MAIZE GROATS AND MEAL ( ' ' GRITZ ' ' ) INTENDED FOR THE BREWING OF BEER AS A RESULT OF REGULATION NO 665/75 OF THE COUNCIL OF 4 MARCH 1975 AMENDING REGULATION NO 120/67 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OFFICIAL JOURNAL 1975 L 72 OF 20 MARCH 1975 , P . 14 ).

2 THE

CASES WERE JOINED FOR THE PURPOSE OF THE PROCEDURE AND ITIS APPROPRIATETO MAINTAIN THE JOINDER FOR THE PURPOSE OF THE JUDGMENT .

3 IN ITS JUDGMENT OF 19 OCTOBER 1977 DELIVERED PURSUANT TO REFERENCES FOR PRELIMINARY RULINGS FROM TWO FRENCH ADMINISTRATIVE COURTS IN JOINED CASES 124/76 AND 20/77 S . A . MOULINS ET HUILERIES DE PONT-A-MOUSSON AND SOCIETE COOPERATIVE ' ' PROVIDENCE AGRICOLE DE LA CHAMPAGNE ' ' V OFFICE NATIONAL INTERPROFESSIONNEL DES CEREALES ( 1977 ) ECR 1795 , THE COURT RULED THAT THE DISPUTED PROVISIONS OF THE COUNCIL REGULATIONS WERE INCOMPATIBLE WITH THE PRINCIPLE OF EQUALITY IN SO FAR AS THEY PROVIDED FOR MAIZE GROATS AND MEAL FOR THE BREWING INDUSTRY AND MAIZE STARCH TO RECEIVE DIFFERENT TREATMENT IN RESPECT OF PRODUCTION REFUNDS . THE COURT SAID FURTHER THAT IT WAS FOR THE INSTITUTIONS COMPETENT IN MATTERS OF COMMON AGRICULTURAL POLICY TO ADOPT THE MEASURES NECESSARY TO CORRECT THAT INCOMPATIBILITY .

4 FOLLOWING THAT JUDGMENT PRODUCTION REFUNDS FOR MAIZE GRITZ USED BY THE BREWING INDUSTRY WERE RE-INTRODUCED BY COUNCIL REGULATION NO 1125/78 OF 22 MAY 1978 AMENDING REGULATION NO 2727/75 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OFFICIAL JOURNAL 1978 L 142 OF 30 MAY 1978 , P . 21 ). THE AMOUNT OF THE REFUNDS WAS FIXED BY COUNCIL REGULATION NO 1127/78 ADOPTED AND PUBLISHED ON THE SAME DATE AS REGULATION NO 1125/78 ( OFFICIAL JOURNAL 1978 , L 142 , P . 24 ). BOTH REGULATIONS ENTERED INTO FORCE ON THE THIRD DAY FOLLOWING THEIR PUBLICATION IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES . HOWEVER , PURSUANT TO THE LAST PARAGRAPH OF ARTICLE 1 OF REGULATION NO 1125/78 AND ARTICLE 6 OF REGULATION NO 1127/78 , THE REFUNDS WERE GRANTED AT THE REQUEST OF THE INTERESTED PARTY AS FROM 19 OCTOBER 1977 , THAT IS TO SAY WITH RETROACTIVE EFFECT FROM THE DATE OF THE JUDGMENT OF THE COURT IN THE ABOVE-MENTIONED PRELIMINARY RULINGS .

5 THUS THE OBJECT OF THE APPLICANTS ' CLAIMS IS TO OBTAIN COMPENSATION FOR THE DAMAGE WHICH THEY CLAIM TO HAVE SUFFERED AS A RESULT OF THE ABSENCE OF REFUNDS DURING THE PERIOD BETWEEN 1 AUGUST 1975 , ON WHICH DATE REGULATION NO 665/75 WAS FIRST APPLIED , AND 19 OCTOBER 1977 . THE ALLEGED DAMAGE CONSISTS , AS REGARDS ALL THE APPLICANTS , IN THE LOSS OF RECEIPTS EQUAL TO THE AMOUNTS OF THE REFUNDS WHICH WOULD HAVE BEEN PAID TO THEM IF MAIZE GRITZ HAD BENEFITED FROM THE SAME REFUNDS AS STARCH , AND AS REGARDS SOME OF THE APPLICANTS , IN ADDITIONAL LOSSES CAUSED IN PARTICULAR BY A FALL IN SALES AND OPERATING DEFICITS .

ADMISSIBILITY

6 THE COUNCIL , THE DEFENDANT , OBJECTS THAT IN ORDER TO OBTAIN THE REFUNDS CLAIMED THE APPLICANTS SHOULD HAVE BROUGHT AN ACTION FOR PAYMENT OF THE REFUNDS AGAINST THE COMPETENT NATIONAL BODIES IN THE NATIONAL ADMINISTRATIVE COURTS . HOWEVER , THAT OBJECTION CANNOT BE UPHELD . ALTHOUGH IT IS TRUE THAT AN ACTION FOR THE PAYMENT OF AMOUNTS DUE UNDER COMMUNITY REGULATIONS MAY NOT BE BROUGHT UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY , THE CLAIMS SUBMITTED BY THE APPLICANTS IN THIS CASE CANNOT BE CLASSED AS CLAIMS FOR THE PAYMENT OF AMOUNTS DUE , BUT RATHER AS CLAIMS FOR COMPENSATION FOR THE ALLEGED DAMAGE RESULTING FROM THE UNLAWFULNESS ESTABLISHED BY THE JUDGMENT OF THE COURT OF 19 OCTOBER 1977 . MOREOVER , ACCORDING TO THE APPLICANTS , THAT DAMAGE IS NOT MEASURED SOLELY BY REFERENCE TO THE UNPAID REFUNDS . BESIDES , IN THE CIRCUMSTANCES OF THE CASE IT IS CLEAR THAT , PURSUANT TO THE SAID JUDGMENT OF THE COURT , A NATIONAL COURT COULD NOT HAVE UPHELD SUCH AN ACTION IN THE ABSENCE OF ANY PROVISION OF COMMUNITY LAW AUTHORIZING THE NATIONAL BODIES TO PAY THE AMOUNTS CLAIMED .

7 THE SAME CONSIDERATIONS APPLY TO A PLEA OF LIS ALIBI PENDENS RAISED BY THE COUNCIL . THE ACTIONS PENDING BEFORE THE FRENCH ADMINISTRATIVE COURTS ARE ACTIONS FOR THE ANNULMENT OF THE COMPETENT NATIONAL BODY ' S REFUSAL TO PAY REFUNDS . THOSE NATIONAL COURTS HAVE NO JURISDICTION TO RULE ON THE NON-CONTRACTUAL LIABILITY OF THE COMMUNITY . THUS , AS THE SUBJECT-MATTER AND THE LEGAL BASIS OF THE ACTIONS BROUGHT BEFORE THE NATIONAL COURTS AND BEFORE THE COURT OF JUSTICE ARE DIFFERENT , THE PRINCIPLES APPLICABLE TO CONCURRENCY OF PROCEEDINGS , RECOGNIZED IN THE NATIONAL SYSTEMS OF LEGAL PROCEDURE , MAY NOT BE RELIED ON IN ORDER TO CONTEST THE ADMISSIBILITY OF THE ACTIONS BROUGHT BEFORE THE COURT OF JUSTICE IN THIS CASE .

SUBSTANCE

8 SINCE BY ITS JUDGMENT OF 19 OCTOBER 1977 , THE COURT HAS ALREADY ESTABLISHED THAT THE ABOLITION OF THE REFUNDS FOR MAIZE GRITZ FOR THE BREWING INDUSTRY , TOGETHER WITH THE RETENTION OF THE REFUNDS FOR MAIZE STARCH , WAS INCOMPATIBLE WITH THE PRINCIPLE OF EQUALITY , THE FIRST PROBLEM WHICH ARISES IN THESE CASES IS WHETHER THE UNLAWFULNESS THUS ESTABLISHED IS OF SUCH A NATURE AS TO RENDER THE COMMUNITY LIABLE UNDER THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY .

9 THE FINDING THAT A LEGAL SITUATION RESULTING FROM THE LEGISLATIVE MEASURES OF THE COMMUNITY IS UNLAWFUL IS NOT SUFFICIENT IN ITSELF TO GIVE RISE TO SUCH LIABILITY . THE COURT HAS ALREADY EXPRESSED THAT VIEW IN ITS JUDGMENT OF 25 MAY 1978 IN JOINED CASES 83/76 AND OTHERS BAYERISCHE HNL VERMEHRUNGSBETRIEBE AND OTHERS V COUNCIL AND COMMISSION ( 1978 ) ECR 1209 . IN THIS REGARD , THE COURT RECALLED ITS SETTLED CASE-LAW , ACCORDING TO WHICH THE COMMUNITY DOES NOT INCUR LIABILITY ON ACCOUNT OF A LEGISLATIVE MEASURE WHICH INVOLVES CHOICES OF ECONOMIC POLICY UNLESS A SUFFICIENTLY SERIOUS BREACH OF A SUPERIOR RULE OF LAW FOR THE PROTECTION OF THE INDIVIDUAL HAS OCCURRED . TAKING INTO CONSIDERATION THE PRINCIPLES IN THE LEGAL SYSTEMS OF THE MEMBER STATES GOVERNING THE LIABILITY OF PUBLIC AUTHORITIES FOR DAMAGE CAUSED TO INDIVIDUALS BY LEGISLATIVE MEASURES , THE COURT SAID THAT IN THE CONTEXT OF COMMUNITY PROVISIONS IN WHICH ONE OF THE CHIEF FEATURES WAS THE EXERCISE OF A WIDE DISCRETION ESSENTIAL FOR THE IMPLEMENTATION OF THE COMMON AGRICULTURAL POLICY , THE COMMUNITY DID NOT INCUR LIABILITY UNLESS THE INSTITUTION CONCERNED MANIFESTLY AND GRAVELY DISREGARDED THE LIMITS ON THE EXERCISE OF ITS POWERS .

10 IN THE CIRCUMSTANCES OF THESE CASES , THE COURT IS LED TO THE CONCLUSION THAT THERE WAS ON THE PART OF THE COUNCIL SUCH A GRAVE AND MANIFEST DISREGARD OF THE LIMITS ON THE EXERCISE OF ITS DISCRETIONARY POWERS IN MATTERS OF THE COMMON AGRICULTURAL POLICY . IN THIS REGARD THE COURT NOTES THE FOLLOWING FINDINGS IN PARTICULAR .

11 IN THE FIRST PLACE IT IS NECESSARY TO TAKE INTO CONSIDERATION THAT THE PRINCIPLE OF EQUALITY , EMBODIED IN PARTICULAR IN THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE EEC TREATY , WHICH PROHIBITS ANY DISCRIMINATION IN THE COMMON ORGANIZATION OF THE AGRICULTURAL MARKETS , OCCUPIES A PARTICULARLY IMPORTANT PLACE AMONG THE RULES OF COMMUNITY LAW INTENDED TO PROTECT THE INTERESTS OF THE INDIVIDUAL . SECONDLY , THE DISREGARD OF THAT PRINCIPLE IN THIS CASE AFFECTED A LIMITED AND CLEARLY DEFINED GROUP OF COMMERCIAL OPERATORS . IT SEEMS , IN FACT , THAT THE APPLICANTS IN THESE CASES AND IN THE RELATED CASES 241/78 AND OTHERS DEUTSCHE GETREIDEVERWERTUNG UND RHEINISCHE KRAFTFUTTERWERK GMBH AND OTHERS V COUNCIL AND COMMISSION COMPRISE THE ENTIRE MAIZE GRITZ INDUSTRY OF THE COMMUNITY . FURTHER , THE DAMAGE ALLEGED BY THE APPLICANTS GOES BEYOND THE BOUNDS OF THE ECONOMIC RISKS INHERENT IN THE ACTIVITIES IN THE SECTOR CONCERNED . FINALLY , EQUALITY OF TREATMENT WITH THE PRODUCERS OF MAIZE STARCH , WHICH HAD BEEN OBSERVED FROM THE BEGINNING OF THE COMMON ORGANIZATION OF THE MARKET IN CEREALS , WAS ENDED BY THE COUNCIL IN 1975 WITHOUT SUFFICIENT JUSTIFICATION .

12 THE COUNCIL ' S DISREGARD OF THE LIMITS IMPOSED UPON ITS DISCRETIONARY POWER IS RENDERED ALL THE MORE MANIFEST BY THE FACT THAT , AS THE COURT POINTED OUT IN ITS JUDGMENT OF 19 OCTOBER 1977 , THE COUNCIL HAS NOT ACTED UPON A PROPOSAL MADE BY THE COMMISSION IN JUNE 1975 TO RE-INTRODUCE THE REFUNDS FOR MAIZE GRITZ ON THE GROUND THAT THE ABSENCE OF SUCH REFUNDS COULD FORESEEABLY UPSET THE BALANCE BETWEEN THE BREWERIES ' RAW MATERIALS COSTS IN MAIZE GRITZ AND MAIZE STARCH .

13 FOR THOSE REASONS THE COURT ARRIVES AT THE CONCLUSION THAT THE COMMUNITY INCURS LIABILITY FOR THE ABOLITION OF THE REFUNDS FOR MAIZE GRITZ UNDER REGULATION NO 665/75 OF THE COUNCIL .

14 THIS SAID , IT IS NECESSARY TO GO ON TO EXAMINE THE DAMAGE RESULTING FROM THE DISCRIMINATION TO WHICH THE GRITZ PRODUCERS WERE SUBJECTED . THE ORIGIN OF THE DAMAGE COMPLAINED OF BY THE APPLICANTS LIES IN THE ABOLITION BY THE COUNCIL OF THE REFUNDS WHICH WOULD HAVE BEEN PAID TO THE GRITZ PRODUCERS IF EQUALITY OF TREATMENT WITH THE PRODUCERS OF MAIZE STARCH HAD BEEN OBSERVED . HENCE , THE AMOUNT OF THOSE REFUNDS MUST PROVIDE A YARDSTICK FOR THE ASSESSMENT OF THE DAMAGE SUFFERED .

15 THE COUNCIL OBJECTED TO THAT METHOD OF CALCULATING THE DAMAGE ON THE GROUND THAT THE GRITZ PRODUCERS ELIMINATED THE DAMAGE BY PASSING ON THE LOSS RESULTING FROM THE ABOLITION OF THE REFUNDS IN THEIR SELLING PRICES . IN PRINCIPLE , IN THE CONTEXT OF AN ACTION FOR DAMAGES , SUCH AN OBJECTION MAY NOT BE DISMISSED AS UNFOUNDED . IN FACT , IT MUST BE ADMITTED THAT IF THE LOSS FROM THE ABOLITION OF THE REFUNDS HAS ACTUALLY BEEN PASSED ON IN THE PRICES THE DAMAGE MAY NOT BE MEASURED BY REFERENCE TO THE REFUNDS NOT PAID . IN THAT CASE THE PRICE INCREASE WOULD TAKE THE PLACE OF THE REFUNDS , THUS COMPENSATING THE PRODUCER .

16 FOR THEIR PART , THE APPLICANTS DISPUTE THAT THE LOSS WAS PASSED ON IN THE WAY ALLEGED BY THE COUNCIL , EXCEPT FOR A BRIEF INITIAL PERIOD DURING THE 1975/1976 MARKETING YEAR . THEY STATE THAT , FACED WITH THE COMPETITION FROM THE STARCH PRODUCERS BENEFITING FROM REFUNDS , THEY CHOSE , AS A MATTER OF COMMERCIAL POLICY , TO SELL GRITZ AT A LOSS IN ORDER TO RETAIN THEIR MARKETS , RATHER THAN RAISE THE PRICES AT THE RISK OF LOSING THOSE MARKETS . THE PRICE INCREASES REFERRED TO BY THE COUNCIL ARE , IN THE APPLICANTS ' SUBMISSION , DUE TO THE RISE IN THE THRESHOLD PRICE OF MAIZE AND TO THE INCREASE IN PRODUCTION COSTS .

17 THE PARTIES HAVE PUT FORWARD STATISTICS AND OTHER DATA IN SUPPORT OF THEIR RESPECTIVE SUBMISSIONS . THOSE DATA DO NOT PERMIT THE CONCLUSION ADVANCED BY THE COUNCIL TO BE ACCEPTED . THE CONCLUSION WHICH EMERGES IS RATHER THAT DURING THE PERIOD IN DISPUTE THE PRICES OF GRITZ AND STARCH DEVELOPED ALONG SIMILAR LINES WITHOUT REFLECTING THE ABSENCE OF REFUNDS FOR GRITZ . THE ONLY EXCEPTION CONCERNS THE PERIOD COVERING THE LAST MONTHS OF 1975 AND THE BEGINNING OF 1976 , DURING WHICH THE PRICES OF GRITZ WERE INCREASED BY AMOUNTS CORRESPONDING TO THE UNPAID REFUNDS . HOWEVER , THE APPLICANTS HAVE EXPLAINED THAT THOSE INCREASES WERE ACCEPTED BY THE BREWERIES PROVISIONALLY ON CONDITION THAT A CLAUSE WAS INSERTED IN THE CONTRACTS OF SALE GUARANTEEING THE BUYER THE BENEFIT , RETROACTIVELY IN THE APPROPRIATE CASE , OF ANY NEW REFUND GRANTED BY THE COMMUNITY .

18 IT FOLLOWS THAT THE LOSS 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 PERIOD FROM 1 AUGUST 1975 TO 19 OCTOBER 1977 THE USE OF MAIZE FOR THE MANUFACTURE OF GRITZ USED BY THE BREWING INDUSTRY HAD CONFERRED A RIGHT TO THE SAME REFUNDS AS THE USE OF MAIZE FOR THE MANUFACTURE OF STARCH ; AN EXCEPTION WILL HAVE TO BE MADE FOR THE QUANTITIES OF MAIZE USED FOR THE MANUFACTURE OF GRITZ WHICH WAS SOLD AT PRICES INCREASED BY THE AMOUNT OF THE UNPAID REFUNDS UNDER CONTRACTS GUARANTEEING THE BUYER THE BENEFIT OF ANY RE-INTRODUCTION OF THE REFUNDS .

19 SOME OF THE APPLICANTS HAVE ALSO SUBMITTED CLAIMS FOR COMPENSATION FOR CERTAIN ADDITIONAL ITEMS OF DAMAGE WHICH THEY CLAIM TO HAVE SUFFERED .

20 IN THE CASE OF THE TWO MAIZE PROCESSORS ESTABLISHED IN THE NORTH OF FRANCE , THE FURTHER DAMAGE LIES PARTICULARLY IN A SUBSTANTIAL FALL IN THEIR SALES TO BREWERIES . ALTHOUGH IT IS BEYOND DISPUTE THAT THE FIGURES SUBMITTED BY THE APPLICANTS CLEARLY SHOW SUCH A FALL , THAT FACT CAN HARDLY BE ASCRIBED TO THE ABSENCE OF REFUNDS . IN FACT , AS HAS ALREADY BEEN SAID , THE APPLICANTS HAVE INSISTED ON THE FACT THAT THE SELLING PRICES OF GRITZ WERE NOT INCREASED ON ACCOUNT OF THE ABOLITION OF THE REFUNDS . ON THE CONTRARY , AS THE COURT RECOGNIZED WHEN EXAMINING THE DEVELOPMENT OF THE PRICES , THE GRITZ PRODUCERS CHOSE TO SELL AT A LOSS IN ORDER TO RETAIN THEIR MARKETS , AND NOT TO INCREASE THEIR PRICES AT THE RISK OF LOSING THOSE MARKETS . THUS THE INEQUALITY WHICH EXISTED BETWEEN GRITZ AND STARCH AS REGARDS THE GRANTING OF REFUNDS WAS NOT REFLECTED IN THE SELLING PRICES . IF IN SPITE OF THAT COMMERCIAL POLICY THE GRITZ PRODUCERS ' SALES FELL , THE REASON FOR THIS MUST BE SOUGHT IN SOMETHING OTHER THAN THE INEQUALITY CAUSED BY THE ABOLITION OF THE REFUNDS .

21 IN THE CASE OF CERTAIN OTHER APPLICANTS THE FURTHER DAMAGE ALLEGED IS OF A DIFFERENT NATURE . TWO UNDERTAKINGS WERE FORCED TO CLOSE THEIR FACTORIES AND A THIRD HAD TO COMMENCE INSOLVENCY PROCEEDINGS . THE COUNCIL ARGUED THAT THE ORIGIN OF THE DIFFICULTIES EXPERIENCED BY THOSE UNDERTAKINGS IS TO BE FOUND IN THE CIRCUMSTANCES PECULIAR TO EACH OF THEM , SUCH AS THE OBSOLESCENCE OF THEIR PLANT AND MANAGERIAL OR FINANCIAL PROBLEM . THE DATA SUPPLIED BY THE PARTIES ON THAT QUESTION IN THE COURSE OF THE PROCEEDINGS ARE NOT SUCH AS TO ESTABLISH THE TRUE CAUSES OF THE FURTHER DAMAGE ALLEGED . HOWEVER , IT IS SUFFICIENT TO STATE THAT EVEN IF IT WERE ASSUMED THAT THE ABOLITION OF THE REFUNDS EXACERBATED THE DIFFICULTIES ENCOUNTERED BY THOSE APPLICANTS , THOSE DIFFICULTIES WOULD NOT BE A SUFFICIENTLY DIRECT CONSEQUENCE OF THE UNLAWFUL CONDUCT OF THE COUNCIL TO RENDER THE COMMUNITY LIABLE TO MAKE GOOD THE DAMAGE . IN THE FIELD OF NON-CONTRACTUAL LIABILITY OF PUBLIC AUTHORITIES FOR LEGISLATIVE MEASURES , THE PRINCIPLES COMMON TO THE LAWS OF THE MEMBER STATES TO WHICH THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY REFERS CANNOT BE RELIED ON TO DEDUCE AN OBLIGATION TO MAKE GOOD EVERY HARMFUL CONSEQUENCE , EVEN A REMOTE ONE , OF UNLAWFUL LEGISLATION .

22 IT FOLLOWS THAT THE CLAIMS FOR COMPENSATION FOR THE FURTHER DAMAGE ALLEGED CANNOT BE UPHELD .

23 THE APPLICANTS SUBMITTED A NUMBER OF DOCUMENTS TO THE COURT AS PROOF OF THE QUANTITIES OF GRITZ FOR WHICH THEY CLAIM TO BE ENTITLED TO COMPENSATION AND OF THE AMOUNTS OF THE REFUNDS NOT PAID IN RESPECT OF THOSE QUANTITIES . HOWEVER , 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 .

THE CLAIM FOR INTEREST

24 THE APPLICANTS FURTHER CLAIM THAT THE COUNCIL SHOULD BE ORDERED TO PAY INTEREST AT THE FRENCH LEGAL RATE FROM THE DATES ON WHICH THE PAYMENT OF THE REFUNDS BECAME DUE EACH MONTH .

25 AS IT IS A QUESTION OF A CLAIM MADE IN RELATION TO THE NON-CONTRACTUAL LIABILITY OF THE COMMUNITY , PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 215 , IT MUST BE CONSIDERED IN THE LIGHT OF THE PRINCIPLES COMMON TO THE LEGAL SYSTEMS OF THE MEMBER STATES , TO WHICH THAT PROVISION REFERS . IT FOLLOWS THAT A CLAIM FOR INTEREST IS IN GENERAL ADMISSIBLE . TAKING INTO ACCOUNT THE CRITERIA FOR THE ASSESSMENT OF DAMAGES LAID DOWN BY THE COURT , THE OBLIGATION TO PAY INTEREST ARISES ON THE DATE OF THIS JUDGMENT , IN THAT 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 ,

AS AN INTERLOCUTORY DECISION , HEREBY :

1 . ORDERS THE EUROPEAN ECONOMIC COMMUNITY TO PAY TO

1 ) P . DUMORTIER FRERES S.A ., TOURCOING ;

2 ) MAISERIES DU NORD , S.A ., MARQUETTE-LEZ-LILLE ;

3 ) MOULINS ET HUILERIES DE PONT-A-MOUSSON , S.A ., PONT-A-MOUSSON ;

4 ) LES MAISERIES DE BEAUCE , S.AR.L ., MARBOUE ;

5 ) COSTIMEX , S.A ., STRASBOURG ;

6 ) ' ' LA PROVIDENCE AGRICOLE DE LA CHAMPAGNE ' ' , SOCIETE COOPERATIVE AGRICOLE , RHEIMS ;

7)MAISERIES ALSACIENNES S.A ., COLMAR ,

THE AMOUNTS EQUIVALENT TO THE PRODUCTION REFUNDS ON MAIZE GRITZ USED BY THE BREWING INDUSTRY WHICH EACH OF THOSE UNDERTAKINGS WOULD HAVE BEEN ENTITLED TO RECEIVE IF , DURING THE PERIOD FROM 1 AUGUST 1975 TO 19 OCTOBER 1977 , THE USE OF MAIZE FOR THE PRODUCTION OF GRITZ HAD CONFERRED AN ENTITLEMENT TO THE SAME REFUNDS AS THE USE OF MAIZE FOR THE MANUFACTURE OF STARCH ; AN EXCEPTION SHALL BE MADE FOR THE QUANTITIES OF GRITZ SOLD AT PRICES INCREASED BY AMOUNTS EQUIVALENT TO THE UNPAID REFUNDS UNDER CONTRACTS GUARANTEEING THE BUYER THE BENEFIT OF ANY RE-INTRODUCTION OF THE REFUNDS ;

2.ORDERS THAT INTEREST AT 6 % SHALL BE PAID ON THE ABOVE-MENTIONED AMOUNTS AS FROM THE DATE OF THIS JUDGMENT ;

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

4.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 ;

5.RESERVES THE COSTS .