Judgment of the Court of 12 December 1979. - Hans-Otto Wagner GmbH Agrarhandel KG v Commission of the European Communities. - Non-contractual liability; alteration of the rate of exchange applicable to the sugar market. - Case 12/79.



European Court reports 1979 Page 03657

Greek special edition Page 00739



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

ACTION FOR DAMAGES - INDEPENDENT NATURE - ACTION DIRECTED AGAINST NATIONAL MEASURES IMPLEMENTING COMMUNITY LAW - INADMISSIBILITY

( EEC TREATY , ARTS . 178 AND 215 , SECOND PARAGRAPH )

Summary

THE ACTION FOR DAMAGES PROVIDED FOR IN ARTICLES 178 AND 215 OF THE TREATY WAS INCLUDED AS AN INDEPENDENT FORM OF ACTION , WITH A PARTICULAR PURPOSE TO FULFIL WITHIN THE SYSTEM OF LEGAL REMEDIES , AND SUBJECT TO CONDITIONS ON ITS USE ARISING OUT OF ITS SPECIFIC NATURE . ITS PURPOSE IS NOT TO ENABLE THE COURT TO EXAMINE THE VALIDITY OF DECISIONS TAKEN BY NATIONAL AGENCIES RESPONSIBLE FOR THE IMPLEMENTATION OF CERTAIN MEASURES WITHIN THE FRAMEWORK OF THE COMMON AGRICULTURAL POLICY OR TO ASSESS THE FINANCIAL CONSEQUENCES RESULTING FROM ANY INVALIDITY OF SUCH DECISIONS .

IN CONSEQUENCE AN ACTION FOR DAMAGES ALLEGING IN SUBSTANCE THE UNLAWFULNESS OF A NATIONAL MEASURE ADOPTED TO IMPLEMENT A COMMUNITY MEASURE IS INADMISSIBLE WHERE THE PLAINTIFF HAS NOT MADE USE OF THE POSSIBILITY OF BRINGING AN ACTION AGAINST THE NATIONAL MEASURE BEFORE THE NATIONAL COURTS HAVING JURISDICTION AND WHERE NECESSARY CITING THE UNLAWFULNESS OR THE WRONGFUL APPLICATION OF THE SAID COMMUNITY MEASURE . THE POSITION IS ALSO THE SAME EVEN WHERE TO BRING SUCH AN ACTION WOULD HAVE INVOLVED THE PLAINTIFF IN CONSIDERABLE FINANCIAL RISK . IN CHOOSING TO AVOID SUCH A RISK THE APPLICANT HAS ALSO DEPRIVED ITSELF OF THE OPPORTUNITY THEN OPEN TO IT OF CORRECTING THE ILLEGALITY OF WHICH IT COMPLAINS .

Parties

IN CASE 12/79

HANS-OTTO WAGNER GMBH AGRARHANDEL KG , BAD HOMBURG , REPRESENTED BY MODEST , HEEMANN , GUNDISCH , RAUSCHNING , LANDRY , FESTGE , HORST HEEMANN , WEGEMER , PETERSEN AND BAUER , OF THE HAMBURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MRS JEANNE JANSEN-HOUSSE , HUISSIER , 23 RUE ALDRINGEN ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , PETER GILSDORF , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

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

Grounds

1 THE APPLICANT IS CLAIMING THAT THE EUROPEAN ECONOMIC COMMUNITY , REPRESENTED BY THE COMMISSION , SHOULD UNDER THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY BE ORDERED TO COMPENSATE IT FOR THE LOSS RESULTING TO IT FROM THE REJECTION OF ITS REQUEST FOR CANCELLATION OF THE EXPORT LICENCE FOR 500 TONNES OF WHITE SUGAR ISSUED TO IT FOLLOWING A PARTIAL INVITATION TO TENDER AS PART OF THE STANDING INVITATION TO TENDER FOR EXPORT PROVIDED FOR BY REGULATION NO 2101/75 OF THE COMMISSION OF 11 AUGUST 1975 ON A STANDING INVITATION TO TENDER IN ORDER TO DETERMINE A LEVY AND/OR REFUND ON EXPORTS OF WHITE SUGAR ( OFFICIAL JOURNAL NO L 214 , P . 5 ).

2 THE FOLLOWING FACTS ARE ESTABLISHED : THE STATEMENT OF AWARD WAS DELIVERED TO THE APPLICANT ON 11 MARCH 1976 . THE EXPORT LICENCE RELATING THERETO WAS ISSUED ON 18 MARCH 1976 . IN THE MEANTIME , NAMELY ON 15 MARCH 1976 , THE EXCHANGE RATES FOR TRANSACTIONS CONCERNED WITH THE COMMON AGRICULTURAL POLICY WERE ALTERED BY COUNCIL REGULATION NO 557/76 OF 15 MARCH 1976 ON THE EXCHANGE RATES TO BE APPLIED IN AGRICULTURE ( OFFICIAL JOURNAL NO L 67 , P . 1 ). ON 1 JULY 1976 THE APPLICANT APPLIED TO THE APPROPRIATE GERMAN INTERVENTION AGENCY , THE BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG ( HEREINAFTER REFERRED TO AS ' ' THE FEDERAL OFFICE ' ' ) TO REQUEST CAN CELLATION OF THE EXPORT LICENCE AND RELEASE OF THE SECURITY WHICH IT HAD LODGED . THIS REQUEST WAS REFUSED BY THE FEDERAL OFFICE BY A DECISION OF 5 JULY 1976 .

3 IT SHOULD BE RECALLED THAT REGULATION NO 1134/68 OF THE COUNCIL OF 30 JULY 1968 LAYING DOWN RULES FOR THE IMPLEMENTATION OF REGULATION NO 653/68 ON CONDITIONS FOR ALTERATIONS TO THE VALUE OF THE UNIT OF ACCOUNT USED FOR THE COMMON AGRICULTURAL POLICY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 396 ), FOR THE PURPOSE OF PREVENTING AN ALTERATION IN THE EXCHANGE RATES FROM CAUSING DAMAGE TO THE UNDERTAKINGS CONCERNED , PROVIDED BY ARTICLE 4 THEREOF THAT ANY PERSON WHO HAD OBTAINED ADVANCE FIXING OF SUCH AMOUNTS FOR SPECIFIC TRANSACTIONS MIGHT , BY WRITTEN APPLICATION WHICH HAD TO REACH THE COMPETENT AUTHORITY WITHIN A SPECIFIED PERIOD OF THE ENTRY INTO FORCE OF THE MEASURES FIXING THE ALTERED AMOUNTS , OBTAIN CANCELLATION OF THE ADVANCE FIXING AND OF THE RELEVANT DOCUMENT OR CERTIFICATE . WHEN THE EXCHANGE RATES WERE ALTERED IN MARCH 1976 , ARTICLE 5 OF THE AFOREMENTIONED REGULATION NO 557/76 ADDED THAT THAT POWER TO REQUEST CANCELLATION SHOULD APPLY ' ' ONLY IF THE APPLICATION OF THE NEW REPRESENTATIVE RATES IS DISADVANTAGEOUS FOR THE PARTY CONCERNED ' ' . COMMISSION REGULATION NO 571/76 OF 15 MARCH 1976 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF REGULATION NO 557/76 ( OFFICIAL JOURNAL NO L 68 , P . 1 ) STATED THAT IN THE SUGAR SECTOR THE RIGHT TO REQUEST CANCELLATION SHOULD APPLY ONLY TO ADVANCE FIXING AND TO THE RELEVANT DOCUMENTS OR CERTIFICATES ISSUED BEFORE 15 MARCH 1976 AND THAT THE RIGHT COULD BE EXERCISED ONLY AS FROM 1 JULY 1976 , THE DATE THE NEW MARKETING YEAR COMMENCED . FROM THE SAME DATE THE NEW REPRESENTATIVE RATES WERE TO APPLY IN THE SUGAR SECTOR . THE DEFENDANT DOES NOT DENY THAT THE APPLICANT WOULD HAVE BEEN ABLE TO EXERCISE ITS RIGHT TO REQUEST CANCELLATION IF NO AMENDMENT OF THE PROVISIONS RELATING THERETO HAD BEEN MADE .

4 ON 22 JUNE 1976 THE COUNCIL ADOPTED REGULATION NO 1451/76 AMENDING REGULATION NO 557/76 ( OFFICIAL JOURNAL NO L 163 , P . 5 ). ACCORDING TO THE RECITALS IN THE PREAMBLE THERETO THE AIM OF THE REGULATION WAS TO PREVENT A WIDE EXERCISE OF THE RIGHT TO CANCEL FROM HINDERING GOOD COMMUNITY ADMINISTRATION OF A GIVEN AGRICULTURAL MARKET . TO THIS END IT PROVIDES THAT THE ' ' DISADVANTAGE ' ' RESULTING FROM AN ALTERATION IN THE EXCHANGE RATE MAY BE COMPENSATED FOR BY A SUITABLE MEASURE AND THAT IN SUCH A CASE THE RIGHT TO REQUEST CANCELLATION MAY NO LONGER BE EXERCISED . FOLLOWING THAT REGULATION FLAT RATE COMPENSATION WAS FIXED FOR WHITE SUGAR BY COMMISSION REGULATION NO 1579/76 OF 30 JUNE 1976 LAYING DOWN SPECIAL DETAILED RULES OF APPLICATION FOR SUGAR UNDER REGULATION NO 557/76 ON THE EXCHANGE RATES TO BE APPLIED IN AGRICULTURE ( OFFICIAL JOURNAL , NO L 172 , P . 59 ). ARTICLE 1 ( 2 ) OF THAT REGULATION PROVIDES THAT EXPORT LICENCES FOR WHICH COMPENSATION MAY BE GRANTED CANNOT BE CANCELLED UNDER THE RULES PREVIOUSLY APPLICABLE .

5 THE AFOREMENTIONED REGULATION NO 1579/76 PROVIDES THAT IT SHALL ENTER INTO FORCE ON 1 JULY 1976 . IT WAS PUBLISHED IN AN OFFICIAL JOURNAL DATED 1 JULY 1976 BUT BECAUSE OF A STRIKE THAT ISSUE WAS NOT IN FACT PUBLISHED AND DISTRIBUTED UNTIL THE NEXT DAY .

6 IN ITS JUDGMENT OF 31 MARCH 1977 IN CASE 88/76 SOCIETE POUR L ' EXPORTATION DES SUCRES V COMMISSION ( 1977 ) ECR 709 THE COURT HELD THAT NOTWITHSTANDING THE FACT THAT THE REGULATION PROVIDES FOR ITS ENTRY INTO FORCE ON 1 JULY 1976 IT COULD PROPERLY BE APPLIED ONLY ON THE FOLLOWING DAY AND THAT CONSEQUENTLY IT COULD NOT BE APPLIED TO APPLICATIONS FOR CANCELLATION OF LICENCES LODGED ON 1 JULY 1976 .

7 THE APPLICANT INFERS FROM THAT JUDGMENT THAT THE FEDERAL OFFICE WRONGLY RELIED ON REGULATION NO 1579/76 TO REFUSE CANCELLATION SINCE THE REQUEST FOR CANCELLATION WAS LODGED ON 1 JULY 1976 . IT ALLEGES THAT THE CONDUCT OF THE COMMISSION WAS RESPONSIBLE FOR THAT REFUSAL , ON THE ONE HAND BECAUSE THE COMMISSION IS RESPONSIBLE FOR THE FUNCTIONING OF THE OFFICE FOR OFFICIAL PUBLICATIONS OF THE COMMUNITIES AND ON THE OTHER BECAUSE IT FAILED TO WARN THE FEDERAL OFFICE OF THE POSTPONEMENT OF THE DATE OF ENTRY INTO FORCE OF REGULATION NO 1579/76 CAUSED BY THE DELAY IN PUBLICATION OF THE REGULATION . THE ALLEGED UNLAWFUL REFUSAL TO CANCEL CAUSED THE APPLICANT CONSIDERABLE LOSSES .

8 IN ITS REPLY THE APPLICANT CLAIMS THAT THE REFUSAL TO CANCEL IS ALSO UNLAWFUL BECAUSE THE PROVISIONS OF REGULATION NO 1579/76 ARE CONTRARY TO THE LAW AND THUS UNLAWFUL . HOWEVER , SINCE THIS IS A FRESH ISSUE WITHIN THE MEANING OF ARTICLE 42 ( 2 ) OF THE RULES OF PROCEDURE IT HAS BEEN PUT FORWARD TOO LATE AND THE COURT CANNOT TAKE IT INTO ACCOUNT .

ADMISSIBILITY

9 THE COMMISSION ALLEGES THAT THE ACTION IS INADMISSIBLE . IT STRESSES THAT THE DECISION TO REFUSE TO CANCEL WAS TAKEN BY A GERMAN AGENCY AND WAS THEREFORE CAPABLE OF CHALLENGE BY ACTION BEFORE A GERMAN COURT . SINCE THE DECISION OF THE FEDERAL OFFICE WAS NOT CHALLENGED BY THE APPLICANT , IT IS NOT FOR THE COMMUNITY TO MAKE GOOD ANY DAMAGE CAUSED BY THAT DECISION .

10 THE ACTION FOR DAMAGES PROVIDED FOR IN ARTICLES 178 AND 215 OF THE TREATY WAS INCLUDED AS AN INDEPENDENT FORM OF ACTION , WITH A PARTICULAR PURPOSE TO FULFIL WITHIN THE SYSTEM OF LEGAL REMEDIES , AND SUBJECT TO CONDITIONS ON ITS USE ARISING OUT OF ITS SPECIFIC NATURE . ITS PURPOSE IS NOT TO ENABLE THE COURT TO EXAMINE THE VALIDITY OF DECISIONS TAKEN BY NATIONAL AGENCIES RESPONSIBLE FOR THE IMPLEMENTATION OF CERTAIN MEASURES WITHIN THE FRAMEWORK OF THE COMMON AGRICULTURAL POLICY OR TO ASSESS THE FINANCIAL CONSEQUENCES RESULTING FROM ANY INVALIDITY OF SUCH DECISIONS .

11 THE APPLICANT HAS BROUGHT ITS ACTION AGAINST THE COMMUNITY ON THE BASIS OF NON-CONTRACTUAL LIABILITY , ALLEGING THAT THE CONTESTED REFUSAL BY THE FEDERAL OFFICE IS ENTIRELY THE RESULT OF THE COMMISSION ' S CONDUCT . IN THE APPLICANT ' S VIEW THE DAMAGE SUFFERED ARISES FROM THAT CONDUCT , SINCE THE NATIONAL AUTH- ORITIES HAD NO CHOICE OTHER THAN TO APPLY THE COMMUNITY PROVISIONS AND TO FOLLOW IN THIS RESPECT THE DIRECTIONS GIVEN TO THEM BY THE COMMISSION .

12 IT FOLLOWS FROM THE JUDGMENT OF THE COURT OF 31 MARCH 1977 IN THE AFOREMENTIONED CASE 88/76 THAT REGULATION NO 1579/76 COULD NOT LAWFULLY BE APPLIED TO A REQUEST FOR CANCELLATION LODGED ON 1 JULY 1976 . HOWEVER , IT WAS FOR THE NATIONAL COURTS TO GIVE A RULING ON THE LEGALITY OF THE REFUSAL BY THE FEDERAL OFFICE IN PURSUANCE OF COMMUNITY LAW WITHIN THE FORMS LAID DOWN BY NATIONAL LAW , FOLLOWING RECOURSE , WHERE NECESSARY , TO ARTICLE 177 OF THE TREATY .

13 THE ACTION BY THE APPLICANT IS SEEKING IN FACT COMPENSATION FOR THE DAMAGE RESULTING FROM THE FACT THAT THE APPLICANT DID NOT SUCCEED IN RENDERING THE REFUSAL BY THE FEDERAL OFFICE INEFFECTIVE . WHATEVER THE REASONS WHICH HAVE LED THE APPLICANT NOT TO BRING AN ACTION AGAINST THAT DECISION BEFORE THE NATIONAL COURTS HAVING JURISDICTION , THE COURT CANNOT ALLOW AN ACTION FOR DAMAGES SUCH AS THAT IN THE PRESENT CASE AGAINST THE COMMUNITY WITHOUT DISREGARDING THE WHOLE SYSTEM OF LEGAL RECOURSE CONCEIVED INTER ALIA TO PROTECT THE UNDERTAKINGS CONCERNED AGAINST A WRONGFUL APPLICATION OF THE MEASURES ADOPTED WITHIN THE FRAMEWORK OF THE COMMON AGRICULTURAL POLICY .

14 IT FOLLOWS THAT THE COURT MUST REJECT AS IRRELEVANT THE APPLICANT ' S ARGUMENT THAT THE BRINGING OF AN ACTION AGAINST THE REFUSAL WOULD HAVE LED TO THE EXPORT LICENCE ' S NOT BEING USED AND THE LOSS OF THE SECURITY PENDING THE SUBSEQUENT OUTCOME OF THE ACTION AND THAT THIS RESULT WOULD BE SUCH A FINANCIAL RISK THAT AN AVERAGE-SIZED UNDERTAKING SUCH AS THE APPLICANT ' S COULD NOT REASONABLY BEAR IT . IN CHOOSING TO AVOID SUCH A RISK THE APPLICANT HAS ALSO DEPRIVED ITSELF OF THE OPPORTUNITY THEN OPEN TO IT OF CORRECTING THE ILLEGALITY OF WHICH IT COMPLAINS .

15 IT FOLLOWS FROM THE AFOREMENTIONED CONSIDERATIONS THAT THE ACTION IS INADMISSIBLE .

Decision on costs

COSTS

16 PURSUANT TO ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING . SINCE THE APPLICANT HAS FAILED IN ITS CLAIM , IT MUST BE ORDERED TO PAY THE COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE ;

2 . ORDERS THE APPLICANT TO PAY THE COSTS .