4.

The Court's decisions on this point have not followed a consistent line. In a passage in the judgment of 14 December 1962 in Joined Cases 46 and 47/59 Meroni [1962] ECR 411 (see in particular p. 420) the view was accepted that the period of limitation laid down by Article 40 of the Statute of the Court of Justice of the ECSC could not start to run unless there was damage which was certain and finally quantifiable. That article corresponds exactly to Article 43 of the Protocol of the Statute of the Court of Justice of the EEC. However, in its judgment of 2 June 1976 in Joined Cases 56 and 60/74 Kampffmeyer [1976] ECR 711 the Court stated that “Article 215 of the Treaty does not prevent the Court from being asked to declare the Community liable for imminent damage foreseeable with sufficient certainty even if the damage cannot yet be precisely assessed” (paragraph 6 of the decision). In that case by applications lodged in July 1974 a number of German milling undertakings had sought a declaration that the Community was bound to make good the damage which they had suffered during the 1974/75 cereal marketing year — and therefore future damage — by reason of the rules on prices and aid relating to durum wheat contained in a group of regulations published between May and June 1974. The defendant institutions had objected that Community law recognized only an action to establish liability to make good damage which had actually been sustained. The Court rejected that objection and held that “as soon as the Community rules in question were published and before they were put into effect the applicants were justified in bringing before the Court the question whether and to what extent these rules were such as to put them at a disadvantage in relation to their French competitors and if so whether these rules were for this reason contrary to the principle of equal treatment” (paragraph 8 of the decision). Finally the judgment of 2 March 1977 in Case 44/76 Milch-, Fett- und Eier-Kontor GmbH [1977] ECR 393 confirmed that it was possible to apply for a declaration that the Community was non-contractually liable even for future damage provided that it was imminent and “foreseeable with sufficient certainty even if the damage cannot yet be precisely assessed”. The defendants draw the conclusion from the judgments in the Kampffmeyer and Milch-, Fett- und Eier-Kontor GmbH cases that it was possible for the applicants to institute legal proceedings from the date on which the regulations abolishing the refunds for maize groats and broken rice were published. Consequently, it is to that date that reference must be made in order to determine the beginning of the limitation period for the actions for damages in question. One of the objections put forward by the applicants against that view is that the right to claim compensation for future damage has no bearing on the setting in motion of the period of limitation referred to in Article 43 of the Protocol on the Statute of the Court of Justice of the EEC. According to that contention, whilst in its judgment in the Kampffmeyer case the Court acknowledged the right of aggrieved parties to institute legal proceedings as soon as the measure causing the damage had been published, it did not state that they were obliged to bring an action immediately, if they were not to run the risk of the expiry of the period of limitation. However, it must not be forgotten that all periods of limitation for legal actions start to run on the date from which the right of action accrues: that consequence arises from the very concept of a limitation period. Only if an action to establish liability to make good future damage were to be regarded as a different form of legal remedy from an application seeking compensation for damage which has already occurred (for example, as a form of precautionary protection against the mere risk of sustaining damage) would it be possible to envisage a separate period of limitation for each action. Moreover, that view is incompatible with Community law which provides for a single type of action in matters of noncontractual liability intended to establish liability and compensate the injured party. Consequently, it seems to me that in so far as it is considered that proceedings under Articles 215 and 178 of the EEC Treaty may be instituted even in respect of future damage, for any action intended to establish the liability of the Community on the basis of the same injurious event, the date on which the period of limitation starts to run is the date from which the right of action accrues.