Opinion of the Advocate-General



Opinion of the Advocate-General

1. The Commission has brought the present appeal against the judgment of the Court of First Instance in Case T-166/98 Cantina sociale di Dolianova and Others v Commission . (2)

2. Those proceedings arose out of the insolvency of the distiller Distilleria Agricola Industriale di Terralba (‘DAI’), as a result of which a number of wine producers did not receive the Community aid to which they were in principle entitled for distillations of their wine that had duly taken place under DAI’s auspices in the first half of 1983. Initially those producers participated in proceedings before the national court between DAI and the Azienda di Stato per gli Interventi nel Mercato Agricolo (the Italian intervention agency, ‘AIMA’). Those proceedings were protracted and unsuccessful. Eventually, after further enquiries, on 12 October 1998 the wine producers brought proceedings against the Commission seeking compensation. One of the issues before the Court of First Instance was when the five-year time period applicable to proceedings against the Community in matters arising from non-contractual liability (3) started to run. The present appeal is concerned solely with that issue.

Relevant Community legislation

3. Article 11(1) of Council Regulation (EEC) No 337/79 of 5 February 1979 on the common organisation of the market in wine (4) provides that preventive distillation (5) of table wines and wines suitable for yielding table wine may take place each wine year.

4. The sixth recital in the preamble to Regulation No 2144/82, (6) which amended Regulation No 337/79, states that, with a view to improving incomes of the producers involved, it is appropriate to ensure that, under certain conditions, they receive a guaranteed minimum price for table wine and that, to that end, the possibility should be provided for the producer to deliver table wine from his own production for distillation at the guaranteed minimum price or to make use of any other appropriate measure to be decided upon.

5. On 15 September 1982 the Commission adopted Regulation (EEC) No 2499/82 laying down provisions concerning preventive distillation for the 1982/83 wine year. (7)

6. Article 1(1) of Regulation No 2499/82 provides that producers wishing to have their wines distilled under Article 11 of Regulation No 337/79 must conclude supply contracts with an approved distiller and submit them to the national intervention agency.

7. Article 5(1) of Regulation No 2499/82 sets the minimum buying-in price for wines for distillation. That price normally renders it impossible to market the products of distillation at market prices. (8) Article 6 therefore lays down a compensation procedure whereby the intervention agency is to pay aid of a prescribed amount for wine distilled.

8. The 11th recital in the preamble to Regulation No 2499/82 states that provision should be made for the minimum price guaranteed to producers to be paid to them, as a general rule, within a period which would enable them to obtain a profit comparable to that which they would obtain from a commercial sale. In those circumstances, it is essential to pay the aid due for the distillation in question at the earliest opportunity, while guaranteeing that operations are correctly carried out by means of an appropriate system of securities. In order to allow the measure fully to achieve its purpose in the Member States, provision should be made for procedures for payment of aids and advances which are suited to the administrative systems of the different Member States.

9. Article 8 of Regulation No 2499/82 provides that for the payment of the minimum buying-in price for wines and for the payment of aid by the intervention agency, one or other of the procedures referred to in Articles 9 and 10 is to be applied, at the choice of the Member States. Italy decided to apply in its territory the procedure referred to in Article 9.

10. Article 9 provides:

‘1. The minimum buying-in price referred to in the first subparagraph of Article 5(1) shall be paid by the distiller to the producer not later than 90 days after the entry into the distillery [of the total quantity of wine or, where appropriate, of each consignment of wine].

2. The intervention agency shall pay to the distiller the aid provided for in Article 6 … within 90 days of submission of proof that the total quantity of wine specified in the contract has been distilled.

…

The distiller shall be required to supply the intervention agency with proof that he has paid the minimum buying-in price referred to in the first subparagraph of Article 5(1) within the period specified in paragraph 1 … If such proof is not submitted within 120 days of the date of submission of the proof referred to in the first paragraph, the amounts paid shall be recovered by the intervention agency. …’ (9)

11. Article 10 of Regulation No 2499/82 provides:

‘1. Not later than 30 days after the entry into the distillery [of the total quantity of wine or, where appropriate, each consignment of wine], the distiller shall pay the producer at least the difference between the minimum buying-in price referred to in the first subparagraph of Article 5(1) and the aid referred to in Article 6(1).

2. Not later than 30 days after submission of the proof that the total quantity of wine covered by the contract has been distilled, the intervention agency shall pay the producer the aid referred to in Article 6 …’

12. Article 11 of that regulation provides:

‘1. The distiller in the case referred to in Article 9 or the producer in the case referred to in Article 10 may ask for an amount equal to the aid referred to in the first paragraph of Article 6 to be paid to him by way of advance on condition that he has provided a security equal to 110% of the said amount in the name of the intervention agency.

2. The security shall be provided in the form of a guarantee by an establishment meeting the criteria laid down by the Member State to which the intervention agency is responsible.

3. The advance shall be paid not later than 90 days after proof is furnished that the security has been provided and in any case after the date of approval of the contract or declaration.

4. Subject to Article 13, the security referred to in paragraph 1 shall be released only if, not later than 29 February 1984, proof is furnished:

– that the total quantity of wine covered by the contract has been distilled,

– and, if the advance has been paid to the distiller, that the latter has paid the producer the minimum buying-in price referred to in the first subparagraph of Article 5(1).

However, if the proofs referred to in the first subparagraph are furnished after the date specified therein but before 1 June 1984, the amount to be released shall be 80% of the security, the difference being forfeit.

If such proofs are not furnished before 1 June 1984, the security shall be forfeit in its entirety.’

13. Article 2(1) of Regulation No 352/78 (10) provides that any security which is forfeited is to be used in its entirety by the paying authorities or bodies in the Member States to reduce the expenditure of the European Agricultural Guidance and Guarantee Fund (‘EAGGF’).

The facts

14. The facts as set out in the judgment of the Court of First Instance are as follows.

15. The applicants, who are wine cooperatives, are producers of wine in Sardinia (Italy). In the context of preventive distillation in respect of the 1982/83 marketing year, they entered into contracts with an approved distillery, DAI, to deliver wine. Those contracts were approved by AIMA in accordance with Article 1 of Regulation No 2499/82.

16. Invoices produced by the applicants, expressly mentioning the ‘AIMA premium’ (‘premio AIMA’ or ‘premio comunitario, a carico della AIMA’) included in the minimum buying-in price laid down by Regulation No 2499/82 to be paid by DAI for wine delivered for preventive distillation in respect of the 1982/83 marketing year, show that the amount of Community aid was ITL 866 860 142 in total (equivalent to EUR 447 696) (11) for a minimum buying-in price of ITL 1 275 523 803 (EUR 658 753), including VAT, for wine delivered by all the applicants. The Community aid thus represented some 68% percent of the total minimum buying-in price. (12)

17. According to information supplied by the applicants and not challenged by the Commission, the wine was delivered between the months of January and March 1983. Distillation took place within the time-limit laid down in Article 4 of Regulation No 2499/82. The time-limit laid down in Article 9(1) of that regulation for DAI to pay the producers therefore expired in June 1983.

18. On 22 June 1983 DAI asked AIMA to make an advance payment of Community aid, under Article 11 of Regulation No 2499/82, in respect of the wine which had been delivered, by the applicants in particular, and distilled. To that end, DAI provided the required security equal to 110% of the amount of the aid, in the form of a bond issued by Assicuratrice Edile SpA (‘Assedile’) for the benefit of AIMA. That security was ITL 1 169 040 262 (EUR 603 759).

19. On 10 August 1983 AIMA paid ITL 1 062 763 876 (EUR 548 872) to DAI, under Article 11 of Regulation No 2499/82, by way of an advance on the Community aid.

20. Owing to financial difficulties, DAI failed to pay, either in full or in part, the producers, including the applicants, who had delivered wine for distillation.

21. On 17 October 1983 DAI applied for administration under Italian insolvency law. The court to which the matter was subsequently referred, the Tribunale (District Court) d’Oristano, granted that application. DAI therefore suspended all its payments, including those owed to the producers who had delivered wine to it.

22. Although it had been informed that that procedure had been initiated, AIMA requested DAI to reimburse the advance of Community aid that it had received, less any sums already duly paid to the abovementioned producers, on the ground that DAI had not supplied it within the time-limit laid down in Article 9(2) of Regulation No 2499/82 with proof that it had paid the minimum buying-in price for wine within the time-limit, laid down in Article 9(1) of that regulation, of 90 days after the entry of the wine into the distillery. DAI did not reimburse the advance. AIMA therefore applied to Assedile for payment of the security.

23. At DAI’s request, on 26 July 1984 the Pretore (Magistrates’ Court) di Terralba made an interim order prohibiting Assedile from paying the security to AIMA. It gave DAI 60 days to bring an action on the merits of the case.

24. In September 1984 DAI brought such an action before the Tribunale civile di Roma (Civil District Court, Rome). It claimed inter alia that that court should declare that the producers were the intended ultimate recipients of the security, to the extent of the sums remaining to be paid to them, and, in the alternative, that AIMA’s rights could at most be exercised in respect of the residual amount of the price which DAI had not yet paid to the producers. It argued that in that instance it had paid the producers approximately half of the advance which had been paid to it by AIMA, without however claiming before the court – as the latter observes in its judgment of 27 January 1989 – that it had made those payments within the time-limit laid down in Regulation No 2499/82 (see point 29 below). It proposed that questions concerning the interpretation of the Community regulations should be referred to the Court of Justice for a preliminary ruling. It could not be accused of non-compliance, because it was not in a position to make all the payments. It maintained that the security was intended to guarantee payment of the minimum buying-in price to producers, in proportion to the amount of production delivered, in the event of the distiller failing to comply with its obligations. It pointed out that, under the relevant Community provisions, if aid was repaid to AIMA it would have to be refunded to the relevant Community body. It argued that the chances of producers who had an individual entitlement to aid would thus be undermined by the action of a third party (that is to say a person other than DAI).

25. Assedile and AIMA were the defendants. The producers concerned – namely the applicants, another wine cooperative and a consortium of wine cooperatives – were interveners in those proceedings.

26. The judgment of the Tribunale civile di Roma of 27 January 1989 states that, according to AIMA, of the 12 contracts for buying in wine concluded by DAI and approved in accordance with the provisions of Article 1 of Regulation No 2499/82, DAI supplied proof, under the terms set out in the Community regulations, of payment of the minimum buying-in price to only three producers, for a total of ITL 111 602 075 (EUR 57 638). AIMA pleaded that, with the exception of those three producers, DAI had not paid the minimum buying-in price to the producers, that it had not in any event proved that the payment had been made within the time-limit laid down in Article 9(1) of Regulation No 2499/82 and, last ly, that it had not supplied that proof within the time-limit laid down in Article 9(2) of that regulation. AIMA stated that, in that context, ‘the security was forfeit in its entirety, under Article 11 of the abovementioned regulation, and therefore the unpaid producers could only assert their rights as against the distillery …’. It therefore submitted a counterclaim seeking an order that Assedile should pay it ITL 1 047 084 185 (EUR 540 774) from the security, plus interest.

27. The interveners in the proceedings before the Tribunale civile di Roma (13) supported DAI’s case (see point 25 above). They contended that the sums to which the security provided by Assedile related were due to them in proportion to the amount of wine delivered. They therefore sought a ruling from the Tribunale civile di Roma, that Assedile should pay them the amount of the unpaid debts owed to them by DAI, plus the monetary revaluation and interest, and, in the alternative, that AIMA was required to pay them those sums. In particular, the applicants stated that the amount of their unpaid debts resulting from contracts approved in accordance with the provisions of Regulation No 2499/82 was ITL 106 571 589 (EUR 55 040) in the case of Cantina sociale di Dolianova, ITL 79 483 181 (EUR 41 050) in the case of Cantina Trexenta, ITL 506 921 061 (EUR 261 803) in the case of Cantina sociale Marmilla, ITL 192 954 189 (EUR 99 653) in the case of Cantina sociale Santa Maria La Palma and ITL 54 812 419 (EUR 28 308) in the case of Cantina sociale del Vermentino. The total sum at stake was thus ITL 940 742 439 (EUR 485 854).

28. Meanwhile, by judgment of 27 February 1986, the Tribunale d’Oristano declared DAI insolvent.

29. In its judgment of 27 January 1989, the Tribunale civile di Roma held as follows:

‘In short, Regulation … No 2499/82 confers entitlement to aid on condition that the strictly imposed time-limits and conditions are observed; failure to observe those time-limits and conditions entails recovery in whole or in part of the aid paid in advance.

The distillers are – according to the procedure adopted by the Italian Republic [the procedure provided for in Article 9 of Regulation No 2499/82] – the intended recipients of the aid whilst the wine and grape producers are the intended ultimate recipients.

It is clear from this that the regulation in question is easy to interpret and that it is not necessary to refer a question to the Court of Justice for a preliminary ruling.

…

As regards relations between Assedile and AIMA, Article 2 of the general conditions of insurance of [the security bond issued by Assedile] provides that Assedile guarantees AIMA, up to the value of the sum insured (which is ITL 1 169 040 262 [EUR 603 759]), reimbursement of any sums which may be owed to it by the contracting party [DAI] as a refund in whole or in part of the advance paid by AIMA in the event of it being found that there is no entitlement to exceptional aid for distillation for all or some of the quantities shown in the application for an advance or in the distillation contract.

Article 3 of the general conditions provides that AIMA must send DAI the request for repayment of the sum unduly paid; DAI is required to pay the sum sought within 15 days. If on expiry of this time-limit no action has been taken on that request AIMA may request the company [Assedile] to pay that sum; the company is required to make that payment within 15 days of receipt of that request and may raise no objection to so doing.

Under Article 4, the company [Assedile] is subrogated, to the extent of the amount paid, to all the rights, grounds and actions of AIMA against the contracting party and its successor in title.

The contractual clauses cited above are clear and easy to interpret: it is accepted in particular that the guarantee is given for the benefit of AIMA and not for the benefit of other persons such as the producers and that therefore the latter do not have any rights against Assedile in respect of the sum guaranteed.

It is also clear from the wording of Article 3, which requires the company [Assedile] to pay within 15 days of receiving the application for payment from the unpaid beneficiary, that the guarantor cannot raise any objections against the beneficiary.

Even if the view were to be taken that a finding that there is no entitlement (full or partial) to aid for distillation is a precondition for any reimbursement, there is no doubt that such entitlement is extinguished due to the failure by the appellant, DAI, to observe the time-limits and conditions laid down in the Community regulation.

It is established that the applicant distillery failed to meet its obligations on three different counts: (1) it did not pay (as is shown by the absence of any proof of payment among the documents before the Court) the minimum price to the producers, apart from ITL 110 795 870 [EUR 57 221]; (2) it did not pay the aid to the producers within 90 days of the entry of the wine into the distillery (a time-limit which expired in June 1983) and, whether it did or not, (3) it did not provide proof before 1 June 1984 that it had made the payments. The penalty for such failures is that the security is to be forfeited in its entirety.

Furthermore, the court cannot accept the points put forward in mitigation by the distillery in order to justify the failure to make the payments (that it was impossible for it to make the payments because it was in administration, and respect for the principle of equal treatment for creditors), since the expiry of the time-limits for making those payments (June 1983) and for repaying the aid (July 1983) was before the date on which the decision had been taken to apply for it to go into administration (October 1983).

…

AIMA should therefore be reimbursed, under the abovementioned Community provisions, up to 110% of the amount of aid paid by way of an advance, less the aid which it was proved had been actually paid, which is ITL 1 047 084 185 [EUR 540 774] (the total amount of the contracts in respect of which no proof has been furnished that they were paid, plus 10% – ITL 1 046 277 980 [EUR 540 357] – to which should be added the difference between the aid which it was proved had been paid and the aid paid in advance – ITL 806 205 [EUR 416]).

It should be pointed out that DAI has never disputed those amounts: although it has stated that it paid producers approximately half of the aid obtained it has not claimed, let alone proved, that it paid that aid within the time-limits laid down in Regulation No 2499/82.

…

It may be appropriate to point out that the applicant distillery is in no position to complain that the cooperative wine-cellars which have delivered their production are having difficulty in obtaining payment of their debts since by its own action it has placed itself in a situation in which those debts cannot be paid, by filing for insolvency immediately after obtaining the Community aid that should in turn be paid to the producers.

The cooperative wine-cellars may – as may the guarantor if it decides to take the applicant’s place – obtain satisfaction of their rights to receive payment in the course of the insolvency proceedings, together with all the other creditors and in accordance with the principle of equal treatment for creditors.’

30. On 27 September 1989 four of the applicants (the exception being Cantina sociale del Vermentino) appealed against that judgment before the Corte d’appello (Court of Appeal) in Rome. By judgment of 19 November 1991 that court held that the appeal was inadmissible because the applicants had not correctly notified lodgement of the appeal to DAI’s official receiver, but had notified DAI itself (which was then in receivership), and they had not subsequently properly made further notification within the time-limit imposed on them by the judge investigating the case.

31. In the meantime, on 16 January 1990, Assedile paid the sums owing to AIMA under the security.

32. The four applicants referred to above appealed to the Corte di Cassazione (Court of Cassation). They claimed, in particular, that they had appealed against the abovementioned judgment of the Tribunale civile di Roma in order to obtain a declaration that that judgment was incorrect not as regards DAI but solely as regards AIMA and Assedile. They therefore argued that the procedural error was one that should not operate so as to bar their appeal. (14) By judgment of 28 November 1994, the Corte di Cassazione dismissed their appeal against the judgment of the Corte d’appello.

33. The five applicants duly registered their claims among DAI’s liabilities in the context of the insolvency proceedings that had been brought against it.

34. By letter of 22 January 1996 the four applicants requested AIMA to honour the debts owed to them by DAI. They contended that AIMA had obtained unjust enrichment through payment of the security. AIMA rejected that complaint, pointing out that it was entitled to the security and that the producers had no right to bring a direct action against it for payment of the debts owed to them by DAI. On 16 February 1996 the applicants brought an action before the Tribunale civile di Cagliari (Italy), against AIMA for unjust enrichment.

35. On 13 November 1996 the applicants lodged a complaint with the Commission. They alleged that AIMA had infringed Community regulations, in particular Regulation No 2499/82, and requested the Commission to call on AIMA and the Italian Republic to repay them the amounts which they had not received by way of Community aid for the 1982/83 wine year.

36. By letter of 25 June 1997 the Commission informed the applicants that Assedile had paid AIMA the amount of the security, plus interest, on 16 January 1990. It added that under Article 2(1) of Regulation No 352/78 any security which is forfeited is to be used by the intervention bodies to reduce the expenditure of the EAGGF (in other words, it must be entered in the EAGGF accounts). The Commission stated that its officials would make the necessary investigations, in particular at AIMA, in order to determine the actual recipient of the security retained by AIMA.

37. By letter of 8 December 1997, the Commission informed the applicants of the results of its investigations at AIMA. AIMA had notified it that on 21 February 1991 it had redeemed the bank draft amounting to ITL 1 047 084 185 (EUR 540 774) issued in the name of Assedile on 16 January 1990 and that it had entered that amount in the EAGGF accounts in 1991 as ‘probably corresponding to the security’.

38. By letter of 23 January 1998, which reached the Commission on 5 February 1998, the applicants requested that institution to pay them the sum corresponding to the amount of the debts owed to them by DAI on the ground that the security retained by AIMA had been refunded to the EAGGF. They argued that it was clear from the purpose of Regulation No 2499/82, which was to benefit wine producers, that the latter should be regarded as the actual and sole intended recipients of the aid provided for in that regulation. The choice afforded to Member States between the procedures provided for in Articles 9 and 10 respectively of that regulation for payment of the aid by the intervention agency could not undermine that purpose. In particular, in the procedure provided for in Article 9 of the abovementioned regulation, the security provided by the distiller was intended to ensure that the preventive distillation operation as a whole was in order, in particular as regards actual payment of the aid to producers. Any other interpretation would amount to a breach of the principle of equal treatment laid down in Article 12 EC. That view was, they argued, confirmed by the successive Commission regulations laying down provisions relating to preventive distillation in respect of the following wine years.

39. By letter of 31 July 1998, signed by the Director-General of the Commission’s Directorate-General for Agriculture, which reached the applicants on 14 August 1998 (‘the contested letter’), the Commission rejected that request. It maintained that, under the procedure for payment of the aid to the distiller applicable in the present case, the aid was primarily for the benefit of the distiller, enabling him to offset the high buying-in price of the wine. The security was made out for the benefit of AIMA, and the producers could not claim any rights to that security. The choice afforded to Member States between that procedure (provided for in Article 9 of Regulation No 2499/82) and the procedure for direct payment of the aid to the producer (provided for in Article 10 of that regulation) did not mean that those two provisions should be interpreted uniformly as meaning that the producers were always the recipients of the aid. Moreover, the Commission contended that the difference between the procedures did not infringe the principle of equal treatment. The difference in treatment arose out of differing factual circumstances (administrative systems and numbers of producers which differed between Member States, and which in some Member States justified centralised payment of the aid to distillers).

40. The Commission pointed out that, in its judgment of 27 January 1989, which had acquired the force of res judicata, the Tribunale civile di Roma had not accepted that the applicants had a claim to the security. The Commission inferred from this that, as the applicants had no claim over the security retained by AIMA, there could likewise be no entitlement once that amount had been refunded to the Commission. In the alternative, the Commission observed that AIMA’s approval of the contracts entered into between the applicants and DAI did not alter the private law nature of those contracts. It followed that the Commission’s alleged obligations with regard to the applicants were of a non-contractual nature. Consequently, any action against the Community was time-barred under Article 46 of the Statute of the Court of Justice, as the security was paid to AIMA on 16 January 1990 and refunded to the EAGGF during the 1991 financial year.

41. Moreover, according to the applicants’ written replies to the questions from the Court of First Instance, the proceedings for unjust enrichment brought before the Tribunale civile di Cagliari were suspended in order to enable the parties to reach amicable agreement on the apportionment of the costs, following the results of the Commission investigation mentioned in point 37 above. That investigation had revealed that AIMA had, contrary to what it claimed before and during the abovementioned proceedings, refunded the security to the EAGGF. In the applicants’ view, those proceedings had thereby become devoid of purpose, since it was apparent that AIMA therefore could not have gained any unjust enrichment.

42. Lastly, in a written reply to a question from the Court of First Instance, the applicants stated that the insolvency proceedings had been concluded during 2000. They had taken part in the distribution as preferential creditors due to their status as an agricultural cooperative, under Article 2751a(5a) and Article 2776 of the Italian Civil Code. Under that distribution they received payment of 39% of the acknowledged debts owed by DAI. Following that distribution, the amounts of their outstanding debts were: ITL 72 797 022 (EUR 37 597) in the case of Cantina sociale di Dolianova, ITL 54 412 685 (EUR 28 102) in the case of Cantina Trexenta, ITL 350 554 208 (EUR 181 046) in the case of Cantina sociale Marmilla, ITL 133 888 664 (EUR 69 148) in the case of Cantina sociale Santa Maria La Palma and ITL 37 212 737 (EUR 19 219) in the case of Cantina sociale del Vermentino. The total outstanding debt was thus ITL 648 865 316 (EUR 335 094).

The judgment of the Court of First Instance

43. By application to the Court of First Instance lodged on 12 October 1998 the applicants brought proceedings against the Commission (i) seeking annulment of the contested letter under Article 230 EC; (ii) alleging that the Commission’s failure to adopt a decision regarding the grant of the Community aid concerned to the applicants was an unlawful failure to act contrary to Article 232 EC and (iii) ordering the Commission on the ground of unjust enrichment and/or by way of compensation for damage within the meaning of Article 235 EC (15) to pay the applicants compensation equivalent to the amounts owed to them by DAI.

44. The Court of First Instance ruled that the first two heads of claim were inadmissible. (16)

45. With regard to the third head of claim, the Commission put forward three grounds of inadmissibility.

46. First, it argued that in the management of the support measures provided for under the common agricultural policy, there was no direct relationship between the Community and economic operators. In the present case, there was therefore no conduct attributable to the Commission, so that the conditions for referral of the matter to the Court under the second paragraph of Article 288 EC were not met. (17)

47. The Court of First Instance found that the conduct for which the Commission was criticised was in essence that, under the system for payment of aid provided for in Article 9 – which differed in that aspect from the system provided for in Article 10 – of Regulation No 2499/82 did not guarantee, particularly in the event of the insolvency of the distiller, payment to the producers concerned of the aid included in the minimum buying-in price for wine delivered to that distiller and distilled in accordance with the provisions of that regulation. The Commission was the author of Regulation No 2499/82. The unlawfulness thus alleged was therefore attributable to the Commission. (18) The Commission has not challenged that ruling in the present appeal.

48. Secondly, the Commission argued that the applicants enjoyed effective judicial protection before the national courts. In particular, they could have brought an action for payment against the intervention agency before a national court as in Unifrex . (19) In their action for unjust enrichment in the present case against AIMA (pending before the Tribunale civile di Cagliari), the applicants would be able to suggest to the national court that it should refer a question for a preliminary ruling under Article 234 EC in order to enable the Court of Justice to consider the validity of the regulatory provisions concerned. (20)

49. The Court of First Instance referred to settled case-law to the effect that an action for damages under Article 235 EC must be appraised with regard to the entire system for the judicial protection of the individual established by the Treaty. Where an individual considered that he had been harmed by the lawful application of Community legislation which he considered to be unlawful and the event giving rise to the alleged damage was therefore attributable exclusively to the Community, the admissibility of such an action for damages could, in certain cases, be subject to the prior exhaustion of national remedies. It was none the less a necessary precondition that those national remedies gave effective protection to the individuals concerned and that they were capable of leading to compensation for the damage alleged. In particular, the admissibility of an action for damages based on Article 235 EC could not be subject to the prior exhaustion of national remedies where, even if the disputed Community rules were declared invalid by a preliminary ruling of the Court of Justice, the national courts could not allow an action for payment – or any other appropriate action – without the prior intervention of the Community legislature, owing to the lack of a Community provision authorising the competent national agencies to pay the amounts sought. In those circumstances, the exercise of rights by individuals who considered they had been harmed was rendered excessively difficult before the national courts. It would therefore not be in keeping with either the proper administration of justice and the requirements of procedural efficiency or the condition relating to the absence of an effective domestic remedy to compel the individuals concerned to exhaust national legal remedies and to wait until a final decision was made on their claim, after the Community institutions concerned had, if necessary, amended or supplemented the relevant Community provisions in compliance with a preliminary ruling of the Court of Justice that those provisions were invalid. (21)

50. In the present case, contrary to the Commission’s assertion, the applicants did not enjoy any effective judicial protection before the national courts. Without prejudice to the possible merits of the applicants’ claims, in the legal context of the present case a national court was not in any event authorised to order AIMA to pay the applicants the Community aid in question unless Regulation No 2499/82 was rectified retrospectively. As the Court of First Instance had already held, (22) that would require the Commission to adopt a regulation. Even if the Court of Justice were to find, in the context of a preliminary ruling, that some of the provisions of Regulation No 2499/82 were invalid, only intervention by the Community legislature (as the Commission pointed out in its defence) would make it possible to adopt a legal basis authorising such payment. (23)

51. The Court of First Instance accordingly concluded that the plea alleging that effective domestic remedies existed must be rejected. (24) Again, the Commission has not challenged that ruling in the present appeal.

52. Third, the Commission had argued that the claims for compensation were in any event time-barred under Article 46 of the Statute of the Court of Justice, applicable to the proceedings before the Court of First Instance under Article 53 of that Statute. Article 46 provides that proceedings in matters arising from non-contractual liability are barred after a period of five years from the event giving rise thereto. That limitation period began to run from the time the applicants became aware of the event giving rise to the damage. In the present case, whether that event was the incorrect application of the Community regulations or the unlawfulness of those regulations, the applicants became aware of it at the latest at the time of such application (i.e., in June 1983). Neither the judgment of the Tribunale civile di Rome of 27 January 1989 nor the subsequent judgments of the Corte d’appello in Rome or the Corte di Cassazione could have interrupted that limitation period.

53. The Court of First Instance dismissed that argument. It ruled that the Commission was required to make good the damage sustained by the applicants following the insolvency of DAI, as a result of the absence of a procedure that would guarantee, under the system introduced by Article 9 of Regulation No 2499/82, payment to the producers concerned of the Community aid provided for in that regulation.

54. More particularly, the Court of First Instance found that the period of limitation began to run when the damage resulting from the total or partial absence of payment of Community aid was suffered for certain by the applicants. DAI should have paid them the minimum buying-in price by the end of June 1983 in accordance with Article 9(1) of Regulation No 2499/82. In the specific circumstances of the present case, however, the damage suffered by the applicants at the end of June 1983 due to the absence of payment could not be considered to be certain, that is to say imminent and foreseeable, from that date on. (25)

55. The Court of First Instance then reviewed what it took to be the salient facts. (26) It took the view that, in order to assess whether damage was ‘certain’, it was necessary to take into consideration the national proceedings between DAI and AIMA (in which the applicants had intervened) concerning the fate of the security. It concluded that, in the exceptional circumstances of the present case, it was extremely difficult for a prudent and well-informed economic operator to be aware that he could not obtain payment of the aid concerned before a national court and that national remedies would, therefore, be ineffective.

56. The exchange of correspondence between the applicants and AIMA on the one hand and the Commission on the other, and the proceedings brought before the Italian courts, showed that the applicants clearly initially attributed AIMA’s refusal to pay them the aid concerned to the incorrect application of Regulation No 2499/82. It was reasonable for the parties concerned to be unaware that the origin of the damage they suffered lay in a lacuna in Regulation No 2499/82, so that they could not obtain redress for that damage before a national court since there was no legal basis authorising the payment of the aid to the producers. Moreover the applicants could legitimately expect that AIMA would be ordered by the national court to pay them the amount of Community aid included in the minimum buying-in price that had not been paid to them by DAI. (27)

57. The absence of a procedure guaranteeing, under the system introduced by Article 9 of Regulation No 2499/82, payment of the Community aid to the producers concerned, in particular in the event of the insolvency of the distiller, was also in the Court of First Instance’s view incompatible with one of the essential purposes of preventive distillation. Preventive distillation was intended not only to prevent the marketing of poor quality wines, but also, as was clear from the sixth recital in the preamble to Regulation No 2144/82, to improve the incomes of producers by ensuring that, under certain conditions, they received a ‘guaranteed minimum price’ for table wine. In addition, under the 11th recital in the preamble to Regulation No 2499/82, provision needed to be made for the minimum price guaranteed to producers to be paid to them, as a general rule, within a period which would enable them to obtain a profit comparable to that which they would have obtained from a commercial sale. In those circumstances, according to that recital, it was essential to pay the aid due to them at the earliest opportunity, while guaranteeing by means of an appropriate system of securities that operations were correctly carried out. (28)

58. The Court of First Instance found that, in those circumstances, a prudent and well-informed trader could reasonably expect to obtain payment of the aid concerned. In particular, as a security had been lodged by the distiller, under Article 11 of Regulation No 2499/82, in order to guarantee that operations were correctly carried out, the risk of insolvency on the part of the distiller would legitimately appear to be covered, as regards the amount of the aid paid earlier to the distiller by way of an advance, where the producers had fulfilled all their obligations and the wine had been distilled in accordance with the provisions of that regulation. The exceptional nature of the situation resulting from the abovementioned lacuna in Regulation No 2499/82 in the area of the preventive distillation of table wine was moreover confirmed by the fact that the system provided for in Article 9 of that regulation was extremely unusual. (29)

59. For all those reasons, given the complexity of the system introduced by Regulation No 2499/82 and the exceptional circumstances described above, it was only after the proceedings relating to the security were brought before the Italian courts that the applicants became aware that they would not obtain payment of the aid in question from the security. In the present case, although the security was redeemed by AIMA in February 1991 in accordance with the judgment of the Tribunale civile di Roma and entered in the EAGGF accounts for that year, the identity of the beneficiary of that security under Regulation No 2499/82 was not finally decided by the Italian court until after the judgment of the Italian Corte di Cassazione of 28 November 1994. Therefore, the damage suffered by the applicants could not have been certain until that date.

60. The Court of First Instance accordingly concluded that in those circumstances, the five-year period of limitation provided for in Article 46 of the Statute could not have begun to run before that date. The present action for damages (namely for compensation equivalent to the amounts owing to the applicants by DAI), brought in 1998, could not be considered to be out of time. (30)

The appeal

61. The Commission has appealed against the judgment of the Court of First Instance. The appeal is limited to that part of the judgment ruling on the interpretation of Article 46 of the Statute of the Court of Justice (paragraphs 129 to 150, summarised in points 54 to 58 above).

62. The Commission submits that the ruling of the Court of First Instance to the effect that time started to run when the applicants were in a position to realise that they would not obtain the aid by recourse to the security provided by DAI in favour of AIMA is based on a manifest error of law. Its sole ground of appeal is that the Court of First Instance thereby infringed Article 46 of the Statute of the Court of Justice.

63. The Commission agrees with the starting point used by the Court of First Instance, namely that the limitation period for an action for non-contractual liability of the Community cannot begin to run before all the requirements governing an obligation to provide compensation for damage are satisfied and in particular before the damage to be made good has materialised. (31) In cases in which the Community’s liability has its origin in a legislative measure, as in this instance, the limitation period cannot begin to run before all the injurious effects of the measure have been produced and consequently before the time when the applicants were bound to incur damage which was certain in character. (32) It follows that the limitation period for an action for non-contractual liability based on a legislative measure begins to run from the objectively ascertainable moment when the application of that measure has actually caused damage to the assets of the applicant.

64. The Commission considers that the Court of First Instance, having correctly summarised the above case-law, takes a position which is diametrically opposed to it. On the basis of that case-law, the Court of First Instance should have held that time began to run when the application of the system of indirect payment of aid to distillation under Article 9 of Regulation No 2499/82 had actually caused damage to the applicants by failing to provide that the aid would be paid directly to the producer if the distiller became insolvent. In practice, that was when, because of DAI’s insolvency, the applicants could not obtain payment of the aid in the time-limits laid down by Regulation No 2499/82, namely at the latest 90 days after distillation.

65. In fact the Court of First Instance held that the damage occurred many years later, when the applicants became aware of the failure of their attempts to obtain payment of the aid, by recourse to the security, from the national courts. That Court considered that, given the complexity of the system of indirect payment of aid established by Regulation No 2499/82, the applicants could reasonably count on obtaining payment of the amounts in question by recourse to the security. The damage resulting from non-payment of the aid was therefore not certain until the judgment of the Corte di Cassazione of 28 November 1994.

66. That conclusion, which at first sight the Court of First Instance appears to reach on the basis of findings of fact alone, is in reality (says the Commission) based on the incorrect legal view that the condition relating to the existence of certain damage must be determined subjectively rather than objectively. In other words, the Court of First Instance presupposed that the damage flowing from application of an unlawful legislative measure cannot be certain unless the person concerned considers it to be so, even though the measure has already, to his knowledge, had harmful effects on him. The Court of First Instance took no account of the fact that, since 1983, Regulation No 2499/82 objectively caused harm to the applicants. Instead, it concentrated on the applicants’ perception of those harmful effects. In effect, the Court of First Instance considered that the fact that the applicants knew that they had suffered harm flowing from the application of Regulation No 2499/82 was insufficient. It added to the test a wholly subjective element, namely that the applicants should be aware that they could obtain redress only by way of an action for compensation against the Commission.

67. According to the Commission, such an approach cannot be justified on the basis that account must be taken of any doubts which the applicants might have had concerning the legality of Regulation No 2499/82 or the misconceived choices they made in seeking to obtain payment of the aid by appropriating the security provided in favour of AIMA. It is clear from the case-law that such errors of assessment by the persons concerned have no relevance in determining when time starts to run. (33)

68. The Commission also argues that the approach taken in the judgment of the Court of First Instance is not sound even on the basis of the principles laid down by the Court in Adams v Commission , (34) relied on by the applicants in an attempt to circumvent the limitation period. That judgment does not concern the determination of when time starts to run, but rather when the limitation period expires. Moreover in Adams the Court took account of the lack of awareness of the event giving rise to the damage, not the illegality of that fact.

69. The Commission stresses that, as the Court of First Instance noted, (35) it was perfectly clear to the applicants once they had entered into contracts with DAI that the aid would be granted to them on the conditions and in accordance with the procedure laid down by Regulation No 2499/82. The applicants did not prove before the Court of First Instance that they had been prevented from the outset from obtaining repayment of the sums due by way of aid by claiming payment from, for example, AIMA or the Commission. The errors of interpretation which led them to believe that they could have recourse to the security if the distiller became insolvent, and hence to undertake long and fruitless proceedings before the national courts, cannot amount to justification in this context. The applicants cannot therefore allege involuntary ignorance of the fact giving rise to the damage.

70. In the view of the Commission, the criterion used by the Court of First Instance cannot be based on the concept of imminent and foreseeable damage within the meaning of the case-law of the Court. (36) That concept permits applicants to bring an action for damages earlier in order to avoid damage which would be even more serious because unquantifiable. It cannot justify delaying the moment when time starts to run on the basis of a subjective assessment of the imminent and foreseeable nature of damage which has already occurred.

71. The approach of the Court of First Instance is moreover, the Commission argues, incompatible with the fundamental requirements of legal certainty to which time-limits are subject. It is obvious that if the moment when time starts to run for the purposes of Article 46 of the Statute of the Court of Justice were to depend on the applicant’s subjective perception of the certainty of damage, the injured party would be able to decide when an action for damages was finally time-barred. In a case such as the present, a litigant could simply bring several sets of proceedings, even wholly speculatively, and could then claim that he did not consider the damage sufficiently certain. He could thereby artificially extend, even by several years, the time-limit for bringing an action for damages.

72. Finally and in the alternative the Commission submits that even on the basis of the approach taken by the Court of First Instance, that court’s assessment of when time started to run is in part erroneous because it is based on a manifest distortion of the facts. As the Court of First Instance itself noted, only four out of the five applicants appealed against the judgment of the Tribunale civile di Roma. There is therefore no reason to consider that time started to run vis-à-vis the fifth applicant (Cantina sociale del Vermentino) at the date of the judgment of the Corte di Cassazione. On the basis of the criterion adopted by the Court of First Instance, time would start to run on the date of the judgment of the Tribunale civile di Roma, namely on 27 January 1989. That applicant’s action would therefore have been time-barred when it commenced proceedings before the Court of First Instance on 12 October 1998.

73. The applicants submit, first, that they did not themselves bring the national proceedings. Rather, they intervened in the proceedings brought by DAI against AIMA seeking a declaration that the amount guaranteed by the security provided in favour of AIMA could be paid to them. The applicants accordingly had to await the outcome of that litigation before bringing proceedings before the Community judicature. The Court of First Instance would certainly have dismissed an earlier application on the ground that domestic rights of action had not been exhausted.

74. The applicants submit, second, that the Commission’s alternative ground of appeal is both inadmissible and unfounded. It is inadmissible because it was not raised before the Court of First Instance. It is unfounded because, as a matter of Italian procedure, whatever the outcome of the appeal to the Corte di Cassazione, all five applicants would have been affected in the same way. If the appeal had been dismissed, the judgment at first instance would have become res judicata in respect of all parties to the proceedings before the Tribunale. Likewise, if the appeal had been allowed, the judgment of the Corte d’appello would have been quashed and the case remitted to the Tribunale, which would have had to rule on the substance vis-à-vis all parties to the proceedings before it.

75. In the event that the Court accepts some of the Commission’s arguments based on the time-limit for bringing proceedings before the Court of First Instance, the applicants put forward, in the alternative, a [so-called] cross-appeal. In essence, their argument here is that the Court of First Instance ruled, in paragraphs 159 to 162 of its judgment, that the Community had been unjustly enriched because the aid had not been paid in full to the applicants, but (rather) the security had been entered by AIMA in the EAGGF accounts. Time could accordingly not start to run before that unjust enrichment occurred (in 1991). However, the applicants could not have known that had happened until 1997, when the Commission notified them of the relevant facts.

Assessment

Preliminary observations

76. In the proceedings before the Court of First Instance, the Commission tried (successively) to argue that the conduct in question could not be attributed to the Commission, that there were effective domestic remedies, and that the applicants’ action was time-barred. The Court of First Instance dealt with each point with considerable care. It dismissed each in turn and went on to examine the merits. It concluded that the conditions were met for the Community to incur liability as regards the unlawfulness of the conduct complained of, the existence of the damage and the causal link between that conduct and the damage pleaded. (37) Accordingly, the Court of First Instance made an interlocutory decision that the Commission was required to compensate the applicants for the damage which had resulted for them from the total or partial absence of payment of the share represented by the Community aid – which they were entitled to claim under Regulation No 2499/82 – forming part of the unpaid debts owed to them by DAI. (38)

77. In addressing the limitation point, I should make it clear that I share the analysis of the Court of First Instance of the merits of this action. It is clear that Community law does not intend a wine producer who has complied with his obligations under Regulation No 2499/82 to be deprived of his aid through an error of the distiller’s for which he can in no way be held to blame.

78. In that connection, I also recall that in Lingenfelser (39) the Court declared the third subparagraph of Article 9(2) of Regulation No 2499/82 invalid because it penalised with total loss of the aid any failure by the distiller to meet the time-limit for paying the producer. In so doing, the Court clearly attached considerable importance to the fact that the purpose of Regulation No 2499/82 in general and Article 9(1) in particular is to ensure that the producer can obtain a profit comparable to that which he would have obtained from a commercial sale. (40)

79. In the present case, it is similarly an omission on the part of the distiller that gives rise to the applicants’ action. Indeed, the failure to pay them the aid to which they were entitled lay at the heart of all three breaches of the regulation identified by the national court in dismissing DAI’s action. The applicants failed before the national court because there is a lacuna in Regulation No 2499/82, inasmuch as wine producers are, without objective justification, treated differently depending upon whether their Member State has opted for the procedure under Article 9 or Article 10 of Regulation No 2499/82. That lacuna can only be filled by the Community legislator.

80. In the specific circumstances of the present case, I do not accept that the damage suffered by the applicants at the end of June 1983 as a result of DAI’s failure to pay them can be regarded as being certain (that is to say, imminent and foreseeable) from that date on. It seems to me, rather, that – in the context of their quasi-contractual relations with AIMA – the applicants had what an outside observer would have characterised as an objective legitimate expectation that the national court would appreciate that they were intended to be the beneficiaries of the Community aid and would make some appropriate order to ensure that they got paid. They had, after all, complied with all their obligations under Regulation No 2499/82 and preventive distillation had duly been carried out. (41) In consequence, I reject the idea that time began to run against the applicants even before the proceedings in which they were subsequently involved had started before the national court.

81. In order to decide what is the correct point from which the five‑year time-limit for bringing this action started to run, it is therefore in my view essential to analyse with some care the decision of the national court at first instance (the Tribunale civile di Roma). I have set out above (at point 29) the central passage from its judgment.

82. The national court first observed that ‘Regulation No 2499/82 confers entitlement to aid on condition that the strictly-imposed time limits and conditions are observed; failure to observe those time-limits and conditions entails recovery in whole or in part of the aid paid in advance. The distillers are … the intended recipients of the aid whilst the wine and grape producers are the intended ultimate recipients’.

83. In so saying, the national court made two correct statements and one significant error. The Community arrangements for market support in the agricultural sector do indeed all depend, correctly, upon making sure that those claiming support comply with the necessary conditions laid down by the Community regulations. (42) The wine and grape producers were indeed the ‘intended ultimate recipients of the aid’. However, it seems to me that, on a proper construction of Regulation No 2499/82, the distillers (DAI) were not, in any true sense, the ‘intended recipients of the aid’ in so far as concerns the minimum buying-in price. Rather, they were the conduit through which that aid was intended – provided that the wine duly entered the distillery and was distilled – to be transmitted to the wine producers. (43)

84. The national court then said, dismissively, that ‘[i]t is clear from this that [Regulation No 2499/82] is easy to interpret and that it is not necessary to refer a question to the Court of Justice for a preliminary ruing’. That is quite true, provided that one concentrates exclusively – as the national court clearly did – on the various time-limits within which the distiller was required to take various steps in order to avoid forfeiting the security that it had lodged in return for advance payment of Community aid.

85. Thus, it would be wrong to conclude that the national court ignored Community law in reaching its decision. It did look at Regulation No 2499/82, but only to the extent of examining the time-limits in Article 9 of that regulation for DAI to act and to supply relevant proofs of its actions. It concentrated exclusively upon the relationship between DAI and AIMA (as reflected by the lodging of the security provided by Assedile). It proceeded (quite correctly) to identify three separate ways in which DAI had failed to meet its obligations under the regulation: (i) it had failed, apart from payments totalling ITL 110 795 870 (EUR 57 221), (44) to pay the producers the minimum price; (ii) it had failed to pay them within the 90-day time-limit and (iii) it had failed to provide proof before 1 June 1984 that it had made the payments. (All three are, of course, different strands of the same basic breach by DAI of its obligations: namely, that it had not paid the wine producers the full amount of the minimum buying-in price due to them for their wine delivered for distillation.)

86. In so doing, the national court failed to focus at all upon the underlying (and fundamental) issue, who should end up receiving the Community aid in question? It is evident that it regarded the intervening wine producers (the intended recipients of the minimum buying-in price; and the only players intended, under the Community regime, to benefit financially from that buying-in price) as being on a par with everyone else who was owed money by DAI as it went under. The sums owing to them as that element of Community aid were equated to DAI’s other debts in the insolvency. This is abundantly clear from the only paragraph of the judgment that specifically addresses their interests:

‘The cooperative wine-cellars may – as may the guarantor [Assedile] if it decides to take the applicant’s place – obtain satisfaction of their rights to receive payment in the course of the insolvency proceedings, together with all the other creditors and in accordance with the principle of equal treatment of creditors.’

87. In so saying, the national court failed to understand the whole thrust and purpose of the Community aid regime. Crucially, it had also declined to make a reference. There was, of course, no obligation on it to do so, not being a final court bound by the stricter requirements of the final paragraph of Article 234 EC (and it also seems likely that the Tribunal civile di Roma was directing its mind to the wrong part of the issue in asking itself whether a reference was ‘necessary’). As a result, this Court was not given the opportunity, at that stage, of examining the structure and purpose of Regulation No 2499/82. Had it done so, it seems to me likely that it would have reached the same conclusion as has the Court of First Instance, namely that there was a lacuna in Regulation No 2499/82 leading to different treatment of wine producers depending upon whether their Member State had chosen the Article 9 or the Article 10 procedure; that the difference in treatment was not justified; and that responsibility for that violation lay with the Community institution that had drafted Regulation No 2499/82, i.e. the Commission. (45) Although the answers given to the national court would (inevitably) have led to the applicants failing to recover the Community aid due to them through their intervention in the national proceedings, they would then objectively have known that the claim lay against the Commission. Time would clearly, therefore, have run against them from that point for the purposes of bringing an action for compensation under Article 235 EC.

88. It is possible that the national court paid less than full attention to the wine producers’ interests because they were interveners in DAI’s action, rather than applicants in their own name. It seems to me that it would be rather harsh to fault the producers, in the circumstances, for not bringing separate proceedings, presumably against DAI (since it was the distiller who actually owed them the balance of the Community aid payable) with AIMA and perhaps Assedile as additional defendants. As it was, there was already a relevant action (between DAI and AIMA) that was ‘live’ before the national courts. It would have seemed rather natural, in the interests of procedural efficiency and economy, to intervene in that action and to place the wine producers’ entitlement to payment of their Community aid before the national court in that way. Had DAI succeeded, or lost following a reference, they would (respectively) have either had a better chance of being paid the aid by DAI or at least known where they stood. If it was an error to intervene in those proceedings rather than to commence separate proceedings, it seems to me that that error was objectively excusable.

89. As interveners, the wine producers (and their clear interests) were given short shrift by the national court. Save with the (undoubted) benefit of hindsight, I find it difficult to read into the judgment of the Tribunale civile di Roma any clear (let alone express) indication to them that they had a good claim but were in the wrong place to pursue it. On the contrary, they were told that they were in no better and no worse position than any other person to whom DAI owed money.

90. In particular, I do not deduce from the judgment of the Tribunale civile di Roma any straightforward judicial guidance that the wine producers would get nowhere in the national courts (either within the context of DAI’s action or, indeed, in separate proceedings) because there was no mechanism for protecting their interests by preventing the forfeiture of DAI’s security to AIMA and its subsequent reimbursement by AIMA to EAGGF when a Member State (such as Italy) had chosen the procedure laid down in Article 9 of Regulation No 2499/82. In consequence, I do not read that judgment as placing them in a position in which, objectively, they ought to have realised that their only recourse was to abandon the national proceedings and, without further ado, to bring proceedings against the Commission as the author of the defective legislation.

91. The wine producers sought to appeal. The appeal proceedings (which failed, it seems, essentially for procedural reasons) (46) were protracted. They stretched from 27 January 1986 (the date of the judgment of the Tribunale civile di Roma) via the judgment of the Corte d’appello on 19 November 1991 through to the final dismissal of the appellants’ appeal by the Corte di Cassazione on 28 November 1994. It is impossible to ascertain from the file before this Court whether the applicants drew attention to the substance of their claim under EC law within that procedural appeal, or raised again the question of whether this Court should be asked for guidance in understanding the workings of Regulation No 2499/82, with a view to unravelling the mess left behind by DAI’s insolvency. It may not have been possible for them to do so to any significant extent, or at all. For my part, I am most reluctant to presume against them that they should never have appealed and that time should be said to have started to run from a point earlier than 28 November 1994.

92. It seems to me, moreover, likely that, had the applicants sought to bring proceedings against the Commission before the Court of First Instance without first going to the national court, the Commission would have argued that they ought to be pursuing their claim before the national courts, which were perfectly capable of granting them an effective remedy. It would, in all likelihood, have deployed arguments similar to those that it presented in the context of these proceedings. (47)

93. Against that background, I turn to consider the analysis of the Court of First Instance of the time-limit provided for by Article 46 of the Statute.

Assessment

94. According to the case-law of the Court of Justice, time starts to run in cases of non-contractual liability originating in a legislative measure when the injurious effects of that measure have been produced, and consequently when the persons concerned were bound to incur damage which was certain in character. (48)

95. In the present case the Court of First Instance ruled that the period of limitation began to run when the damage resulting from the total or partial absence of payment of Community aid was suffered for certain by the applicants. (49) That court considered that in the exceptional circumstances (i) a prudent and well-informed trader could reasonably expect to obtain payment of the aid and (ii) (given in particular the complexity of the system introduced by Regulation No 2499/82 (50) and the exceptional nature of the situation relating to the lacuna in that regulation) it was extremely difficult for such a trader to be aware that he could not obtain such payment before a national court. Consequently, in order to assess whether damage was certain, it was necessary to take into consideration the national proceedings, concerning specifically the fate of the security.

96. It seems to me that those two limbs could equally well have been phrased (and might perhaps have been more felicitously phrased) in terms of what a reasonable bystander, observing the situation, would have supposed the objective situation to be. Objectively, looking at the Community legislation, the quasi-contractual relations between AIMA and the wine producers, the fact that the wine producers had complied with their obligations and the apparent purpose of the Community legislation as expressed in the recitals to Regulation No 2499/82, it seems to me that such a bystander would have supposed that the proper course of redress was by way of proceedings before the national court to obtain payment of the Community aid with, in all probability, a reference under Article 234 EC. Such payments are generically made at national level, and are claimed (if necessary) via national proceedings, with the Member State then accounting to the Community through the procedure for the clearance of EAGGF accounts. I find it difficult to accept the idea that a reasonable bystander, viewing the situation objectively, would have jumped to the conclusion in 1983 that the wine producers should launch a damages claim against the Commission.

97. Rather, applying the test (as set out by the Commission) that ‘the limitation period cannot begin to run before all the injurious effects of the measure have been produced and consequently before the time when the applicants were bound to incur damage which was certain in character’, I consider that such a bystander would have said that, although the general nature of the damage that the applicants were likely to suffer if they were not paid the Community aid might be obvious in June 1983, its unavoidable nature was not. The applicants were ‘bound to incur damage which was certain in nature’ only when it became objectively clear that proceedings before the national court would not result in their receiving the aid. That was the point at which ‘all the injurious effects of the [lacuna in the Community] measure [were] produced’.

98. With that gloss, I fully endorse the approach adopted by the Court of First Instance, at least with regard to the four applicants who appealed against the judgment of the Tribunale civile di Roma. (51)

99. If, in the alternative, the Court is prepared to contemplate the possibility, in an exceptional case, of taking account of a subjective element, it seems to me that there are strong parallels with Adams ; (52) and that the reasons for accommodating a subjective element are as strong here as they were there.

100. The present case, like Adams , is, for the reasons given by the Court of First Instance, an exceptional case.

101. In Adams , the applicant had notified the Commission of anti-competitive practices engaged in by his employer Hoffmann-La Roche & Co AG (‘Roche’). He subsequently brought an action against the Commission for compensation for damage allegedly suffered as a result of wrongful acts or omissions on its part which led to his arrest, detention and conviction in Switzerland for economic espionage arising out of that notification. The Court found that, following a visit by Roche’s lawyer to the Commission on 8 November 1974, the Commission’s knowledge of the gravity of the risk to which it had exposed Mr Adams by its earlier conduct (53) was sufficient to give rise to liability. By failing to make all reasonable efforts to pass on to Mr Adams the information available to it following that visit, the Commission incurred liability towards him in respect of the damage which was likely to result from the discovery of his identity.

102. Mr Adams brought his action in July 1983. The Commission argued that it was time-barred by virtue of Article 43 of the Statute of the Court of Justice, the predecessor to the present Article 46. Mr Adams argued that the events had not become known to him until 1980, when his new lawyer had had the opportunity to study the documents relating to the criminal proceedings. He had not believed the information supplied by the Swiss police and had been unable to read the Swiss judgments which were in German. Nor could he possibly have known of the events relating to the visit by Roche’s lawyer to the Commission on 8 November 1974.

103. The Court stated that Article 43 ‘must be interpreted as meaning that the expiry of the limitation cannot constitute a valid defence to a claim by a person who has suffered damage where that person only belatedly became aware of the event giving rise to it and thus could not have had a reasonable time in which to submit his application to the Court or to the relevant institution before the expiry of the limitation period. In this case it must be borne in mind that the Court has based its conclusion in regard to the Community’s liability on the fact that the Commission had not attempted to inform and to consult the applicant following [Roche’s lawyer’s] visit of 8 November 1974. It is clear from the information before the Court that the applicant could not have become aware of that fact until the preparatory inquiry in these proceedings, since [Roche’s lawyer’s] visit was mentioned for the first time in the Commission’s defence. Therefore, he could not have sought to establish the Community’s liability on that basis before the normal date of expiry of the limitation period’. (54)

104. Adams is, of course, and as Commission implicitly argues, distinguishable in various respects from the present case (although I confess to some puzzlement over the Commission’s argument that it concerns not the determination of when time starts to run but rather when the limitation period expires, since the one surely depends on the other). It does, however, demonstrate that the Court is prepared to depart from the normal application of the rules of prescription in an exceptional case. In such rare, exceptional cases I consider that it may be necessary to approach those rules more sympathetically in order to prevent prescription from being relied on as a defence in circumstances where that would be manifestly unjust.

105. In the present case, the applicants took the decision, entirely reasonably at the time and in the context, to intervene in the proceedings brought by DAI against Assedile and AIMA in September 1984 before the Tribunale civile di Roma. The duration of those proceedings was not, and could not have been, within the applicants’ control. That court refused to make a reference for a preliminary ruling to the Court of Justice. Had it done so, the matter would have become clear at that stage. In the context of such a reference, the Court would necessarily have reviewed the structure of Regulation No 2499/82. In so doing, it would have identified the lacuna in that regulation (as the Court of First Instance subsequently did), namely that if a Member State took one of the two available options for channelling aid, funds earmarked for the producers as ultimate recipients would in circumstances such as those of the present case be refunded to the Community rather than paid to the producers.

106. In the absence of a reference leading to such a review, however, it was only at the final conclusion of the national proceedings (the judgment of the Corte di Cassazione of 28 November 1994) that those four out of the five applicants who had appealed against the judgment of the Tribunale civile di Roma (55) knew that their attempt to obtain payment of the Community aid that was rightfully theirs through the national courts could not succeed. That seems to me to be the appropriate point to hold that time had begun to run for the purposes of Article 46 of the Statute.

107. With regard to the fifth applicant, the analysis I have proposed above leads to the conclusion that time began to run on the date of the judgment of the Tribunale civile di Roma, that is to say on 27 January 1989. The fifth applicant's action against the Commission is accordingly time-barred. That would be otherwise only if the Court were to take the view that, as in Adams , it would in the exceptional circumstances of the present case be appropriate for it essentially to rule that the time-limit laid down in Article 46 of the Statute is inapplicable to any of the applicants.

108. For the sake of completeness, I should add that the applicants subsequently brought an action against AIMA before the national courts for unjust enrichment. (56) As the applicants themselves realised, once they had approached the Commission and ascertained that the funds derived from the Assedile security had been transferred by AIMA to the Commission and credited to the EAGGF account, (57) that claim was also bound to fail: there had been no unjust enrichment of AIMA.

109. An argument could be made out for saying that it was only at that point that the last, flickering hope of success via the national courts was extinguished. I do not think it necessary or appropriate to go that far.

110. It therefore seems to me that, objectively, the failure of the appeal to the Corte di Cassazione spelled the end of any realistic chance that the applicants could succeed before the national courts. (58) It follows that that was when the damage suffered could be regarded as ‘certain’. At that point, the damage was indeed both imminent and foreseeable, even if it could not yet be accurately determined. (59)

111. I accept that the present case does not fit neatly into the existing case-law, referred to by both the Court of First Instance in its judgment and the Commission in its appeal. That case-law was not, however, developed in the context of circumstances such as those giving rise to the present case, where the situation falls uncomfortably between the national and Community legal systems. In the case-law to date, in contrast, the basic problem of determining which of those systems was the appropriate forum for proceedings was not at issue.

112. Here, if the applicants had brought a claim against the Commission at the outset it is highly likely that the Commission would have taken the view that the correct forum was the national court, both because Community aid in the agricultural sector is normally paid via the national intervention board and because national insolvency proceedings were under way. In that context, I find it significant that, even in the proceedings before the Court of First Instance, the Commission continued to argue that national procedures did provide the applicants with an effective remedy.

113. If the prescription defence were to succeed in the present case, the result would be to deny the applicants access to the courts and hence to justice. Such a result would run counter to the fundamental principle that Community law operates in a way that affords effective judicial protection to persons on whom it confers rights. The applicants are persons who are entitled to receive payment of Community aid in respect of the wine that they sent to DAI for distillation and who have been deprived of their money through a lacuna in Regulation No 2499/82 for which the Court of First Instance has held the Commission responsible. There is no challenge before the Court on the merits. It would in my view be wholly wrong for the prescription defence to succeed in the exceptional circumstances of the present case.

114. I would accordingly dismiss the appeal and uphold the judgment of the Court of First Instance.

Costs

115. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. The applicants have applied for costs. In my view the fifth applicant (Cantina sociale del Vermentino) is, unlike the first four applicants, an unsuccessful party. However, it seems from the file that any costs solely attributable to the fifth applicant – if indeed there are any such costs – are likely to be insignificant and would in any event be difficult to quantify. I accordingly propose that the Commission should pay the costs of this appeal with regard to all five applicants.

Conclusion

116. For the reasons given above, I consider that the Court should:

– dismiss the appeal;

– order the Commission to pay the costs of the appeal.

(1) .

(2) – [2004] ECR II-3991.

(3) – See footnote 15 and point 52 below.

(4) – OJ 1979 L 54, p. 1; as amended by Council Regulation (EEC) No 2144/82 of 27 July 1982 (OJ 1982 L 227, p. 1).

(5) – Voluntary distillation intended to withdraw forecasted wine surplus with a view to improving prices.

(6) – Cited in footnote 4.

(7) – OJ 1982 L 267, p. 16; as amended by Commission Regulations (EEC) No 311/83 of 7 February 1983 (OJ 1983 L 36, p. 6) and No 2276/83 of 9 August 1983 (OJ 1983 L 219, p. 9).

(8) – See the eighth recital in the preamble.

(9) – The third subparagraph of Article 9(2) has been declared invalid by the Court of Justice ‘in so far as it penalises with total loss of aid any failure to meet the time-limit within which the distiller must pay the minimum buying-in price to the producer’: see Case C-118/89 Lingenfelser [1990] ECR I-2637.

(10) – Council Regulation (EEC) No 352/78 of 20 February 1978 on the crediting of securities, deposits and guarantees furnished under the common agricultural policy and subsequently forfeited (OJ 1978 L 50, p. 1).

(11) – Self-evidently, the events with which this appeal is concerned took place well before the advent of the euro. Since the reader is likely now to be more familiar with euros than with ITL as a measure of value, I have given the euro equivalents of these sums to show the magnitude of the amounts at stake.

(12) – The Court of First Instance correctly analyses the pattern of payments as comprising two stages, namely payment by the distiller to the producer of the minimum buying-in price and payment by the intervention agency to the distiller of the ‘Community aid’ properly so called. Later in its judgment, however, the Court of First Instance frequently uses the term ‘Community aid’ or ‘aid’ to mean either both those payments taken together or, more specifically, payment of the minimum buying-in price. I have followed that usage, on the basis that it is clear from the context what is meant.

(13) – Namely, the present applicants, another wine cooperative and a consortium of wine cooperatives.

(14) – So far as one can deduce from the papers before the Court, this must have been the essence of their argument before the Corte di Cassazione.

(15) – Article 235 EC confers jurisdiction on the Community judicature in disputes relating to compensation for damage provided for in the second paragraph of Article 288 EC. That paragraph provides that, in the case of non-contractual liability, ‘the Community shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by is servants in the performance of their duties’.

(16) – Paragraphs 58 to 84 of the judgment of the Court of First Instance.

(17) – Paragraph 85.

(18) – Paragraphs 109 and 110.

(19) – Case 281/82 Unifrex v Commission and Council [1984] ECR 1969, paragraph 11.

(20) – Paragraphs 87 and 88. It will be recalled that, in the earlier national proceedings, the Tribunale civile, Rome, had refused to make a reference: see point 29 above.

(21) – Paragraphs 115 to 117.

(22) – See paragraph 77 of the judgment.

(23) – Paragraph 118.

(24) – Paragraph 120.

(25) – Paragraphs 131 to 133.

(26) – Paragraphs 134 and 135; see points 18 and 24 above.

(27) – Paragraphs 136 to 139.

(28) – Paragraph 142.

(29) – See the legislative context explained in paragraph 144 of the judgment of the Court of First Instance.

(30) – Paragraphs 143 to 147.

(31) – Joined Cases 256/80, 257/80, 265/80 and 267/80 and 5/81 Birra Wührer and Others v Council and Commission [1982] ECR 85, paragraph 10.

(32) – Ibid.

(33) – The Commission cites Case T-20/94 Hartmann v Council and Commission [1997] ECR II-595, paragraph 109 et seq., and, with regard to the former EAEC Statute of the Court of Justice, Case C-136/01 P Autosalone Ispra dei Fratelli Rossi v Commission [2002] ECR I-6565, in particular paragraphs 31 and 56.

(34) – Case 145/83 [1985] ECR 3539.

(35) – See paragraphs 139 and 140 of the judgment.

(36) – Joined Cases 56/74 to 60/74 Kampffmeyer v Commission and Council [1976] ECR 711, paragraph 6; Case 147/83 Binderer v Commission [1985] ECR 257, paragraph 19; and Case 281/84 Zuckerfabrik Bedburg v Council and Commission [1987] ECR 49, paragraph 14.

(37) – Paragraph 178 of the judgment of the Court of First Instance.

(38) – Paragraph 179.

(39) – Cited in footnote 9 above.

(40) – See for example paragraphs 11 and 13.

(41) – See paragraph 141 of the judgment of the Court of First Instance.

(42) – As may be seen in the numerous judgments in which the Court has upheld the Commission’s withholding of aid provided for by the EAGGF on the ground that the Member State concerned has not ensured compliance with those conditions.

(43) – Even if there were any doubt about this, it is important to note that the Commission has not challenged the judgment of the Court of First Instance on the substance. It would accordingly be neither appropriate nor indeed in accordance with this Court’s power of review on appeal for it to question the interpretation of the legislation by the Court of First Instance.

(44) – See point 26 above.

(45) – See the careful discussion of the merits at paragraphs 151 to 178, in particular paragraphs 164 to 172. It is to be noted that the Commission does not seek to appeal the judgment of the Court of First Instance on the substance. It relies solely upon the limitation point.

(46) – See paragraphs 31 to 33 of the judgment of the Court of First Instance.

(47) – See paragraph 89 of the judgment of the Court of First Instance. The Court of First Instance explains cogently at paragraph 118 that the applicants did not , in fact, enjoy any effective judicial protection before the national courts; a conclusion with which (in the light of just over 10 years of litigation before the national courts) it is hard to disagree. However, it is not so clear that that would necessarily have been equally apparent had the litigation started in the Court of First Instance rather than in the national courts.

(48) – Birra Wührer , cited in note 31, paragraph 10.

(49) – Paragraph 131.

(50) – See the comments of Advocate General Darmon in the related context of the proportionality of the penalty imposed by the third subparagraph of Article 9(2) of Regulation No 2499/82: ‘It is hard not to feel confused when confronted with this peculiar mixture of penalties expressly prescribed and penalties which have to be implied, and with the juxtaposition of principal and ancillary obligations, both of which are penalised with equal severity through total forfeiture of aid …’ (point 27 of the Opinion in Lingenfelser , cited in note 9).

(51) – See points 30 and 32 above and 107 below.

(52) – Cited in footnote 34.

(53) – Namely, handing over to Roche staff edited photocopies of memoranda supplied to it by Mr Adams which had enabled Roche to identify him as the main suspect in the complaint that it had lodged with the Swiss Public Prosecutor’s Office, and which had therefore led to his arrest and supplied the police and the Swiss courts with substantial evidence against him.

(54) – Paragraphs 50 and 51 of the judgment.

(55) – See points 30 and 32 above.

(56) – On 16 February 1996: see paragraph 38 of the judgment of the Court of First Instance, mentioned above at point 34.

(57) – See paragraphs 39 and 40 of the judgment of the Court of First Instance.

(58) – In so saying, I bear in mind that the applicants were aware of the risk that the sum derived from forfeiture of the security would at some stage be paid by AIMA to the Commission and credited to the EAGGF account. Their hope, in the main national proceedings, was that the security would not be declared forfeit and/or that the national court could be persuaded to make some other order that would result in their receiving payment of the aid. For the reasons I have given, I accept that, objectively, it was reasonable for them to try that route. In contrast, I regard the unjust enrichment proceedings against AIMA as being more in the nature of a forlorn last hope.

(59) – See paragraphs 129 and 130 and paragraph 149 of the judgment of the Court of First Instance. The exact extent of the applicants’ losses could only be quantified after, as preferential creditors, they had recovered part of the unpaid debts owed to them by DAI at the conclusion of the insolvency proceedings in 2000.