4.

In that regard, it must be observed first of all that the Commission abandoned its initial reservations during the course of the proceedings and no longer denies that during the period with which we are concerned Interquell produced quellmehl for use in the baking of bread. That production would certainly have given entitlement to refunds if they had not been abolished by Regulation No 1125/74: Article 11 (1) of Regulation No 120 of the Council of 13 June 1967, as amended in 1974, provided for the grant of production refunds for maize and common wheat used in the manufacture of starch and quellmehl. The existence of damage suffered by Interquell is therefore beyond dispute and, in my opinion, that company's right to compensation is undeniable, since the grounds on which the Court recognized in its interlocutory judgment of 4 October 1979 its right to compensation for not receiving production refunds for quellmehl intended for bread-making apply in the same way both to quellmehl made from maize and quellmehl made from common wheat. The problem of proving the extent of the damage remains to be resolved. In the Commission's view, to obtain the compensation claimed, Interquell must produce the same evidence as would be required for the payment of the refunds. The rules implementing the relevant Council regulations (see in particular Article 3 of Regulation No 1060 of the Commission of 24 July 1968) are confined to providing that the production refund shall be paid to the manufacturer who “furnishes proof that the cereal has been processed”. In Germany, according to a letter from the Federal Ministry for Food, Agriculture and Forestry of 22 December 1967, the payment of the refunds in question is subject inter alia to the keeping by the quellmehl producer of accounts specifying entries, exits and other movements, the stocks of basic products and of flour used, the quantities of quellmehl and secondary products produced and the profits achieved. Each undertaking must retain such records and vouchers appertaining thereto for seven years (paragraph XI of the said letter). The applicant admits that it is not able to supply all the items of evidence for the relevant period for the purpose of obtaining compensation and it observes that after the abolition of the production refunds for quellmehl it no longer continued to keep the internal accounts prescribed by the rules governing refunds. It nevertheless claims that, since it is a question of proving damage suffered by reason of an unlawful measure of the Council, the Commission cannot require observance of the terms laid down by the national authorities for the payment of the subsidy which was subsequently abolished. The argument seems to me correct. Although the amount of damages payable and the amount of the unpaid refunds are the same, there is no question but that the payment which is now claimed from the Community by way of compensation is of quite a different nature from the payment of refunds which, without the unlawful act of the Council, would have been made by the national authorities. It is understandable that in order to facilitate administrative checks and to ensure the proper functioning of the system of production refunds strict rules should have been established and that disregard of those rules should be penalized by loss of the Community subsidy. The normal functioning of such intervention machinery involves the payment over a long period of large sums for different types of production and consequently a considerable number of operations have to be performed by the administrative authorities; that is why particular requirements in relation to the internal accounts of the undertakings entitled to benefit is in accordance with obvious practical requirements closely connected with the application of the system of refunds. However, there is no justification for applying to the Community's non-contractual liability (that is to say, to extend to cases which must be assumed to be exceptional) rules conceived for a completely different purpose. Furthermore, it should be borne in mind that the application of restrictive rules in relation to proof would be contrary to the principle of freedom to prove damage which is generally applied in relation to non-contractual liability.