OPINION OF ADVOCATE GENERAL

SIR GORDON SLYNN

delivered on 27 February 1985

My Lords,

In these 13 joined cases the applicants are Greek undertakings which, inter alia, process tomatoes into tomato concentrates. They claim that as a result of the Commission Regulations whose validity they attack, they are indeed the only surviving such processors in Greece, and that they have suffered considerable financial loss. One of them (Asteris AE) was an applicant in Case 250/81 Greek Canners v Commission [1982] ECR 3535 in which the applicants sought to have annulled Commission Regulation No 1962/81 (Official Journal 1981, L 192, p. 13) in respect of the marketing year 1981/82, but their action was held to be inadmissible since the Regulation had not been shown to be both of ‘direct and individual’ concern to them within the meaning of Article 173 of the EEC Treaty.

In the present cases the applicants, whilst not seeking the annulment of the relevant Regulations, contend that the aid fixed by the Commission for Greece in respect of the processing of tomatoes into tomato concentrates, for the marketing years 1981/82 and 1982/83, was unlawful and that the Commission is liable under Article 215 (2) of the Treaty to make good the loss they have suffered, being the difference between the aid they did receive and the aid which they should have received if the aid scheme had been lawfully administered by the Commission. They also claim interest on such amounts in respect of the first year from 21 July 1982, and in respect of the second year from 9 July 1983, at the rate of 24% per annum, that being the rate they claim was current in Greece at the relevant time, and which they say that they, or at any rate some of them, had to pay in order to borrow money from the banks, because they did not receive the appropriate amount of aid.

The scheme by which aid was to be provided for the manufacture of tomato concentrates is summarized in my Opinion in Case 192/83 Greece v Commission which summary I incorporate by reference in this Opinion.

I add that for the two years in issue in this case the amount of aid for the reference product was fixed by Commission Regulations Nos 1963/81 and 1585/82 as follows: (a) for Member States other than Greece (i) 1981/82 40.30 ECU, (ii) 1982/83 45.53 ECU; (b) for Greece (i) 1981/82 21.61 ECU, (ii) 1982/83 33.49 ECU. The coefficients used in these two years were the same as those used in respect of the marketing year 1983/84 which is in question in the other case.

The Commission argues that these actions are inadmissible, since the relief sought would put the applicants in the same position as if the contested Regulations were annulled. However, the argument advanced by the Commission has previously been dismissed by the Court on the grounds that the actions under Articles 173 and 215 (2) are wholly independent of one another: (e.g. Cases 5/71 Zuckerfabrik Schöppenstedt v Council [1971] ECR 979, and 238/78 Ireks-Arkady v Council and Commission [1979] ECR 2955). Accordingly, the Commission's objection in my view is not made out.

It has rightly not been suggested that these proceedings could only be brought before a national court against a Greek intervention body. If the calculation of the aids is found to be unlawful, it is not for the national intervention body to recalculate them according to the proper methods. This can only be done by the Commission following a decision of this Court.

It is well established in the case law of the Court that for liability to arise under Article 215 (2) with respect to legislative acts the following cumulative conditions must be fulfilled: (1) there must be a sufficiently serious breach of a superior rule of law intended to protect the individual; (2) damage must be suffered by the applicant; and (3) there must be a causal link between the two.

As to (1) the applicants do not attack the principal basis of calculation for the aid paid for 100 kilograms of the ‘reference product’ in the 1981/82 marketing year. They say, however, that the aid paid was incompatible with Article 103 (3) of the Act of Accession and Articles 7 and 40 (3) of the Treaty (together with Articles 3 (f) and 40 (2)(1) which seem to me to be too general to constitute the basis of an action). According to a purely mathematical calculation on the basis adopted by the Commission that aid should, say the applicants, have been 46.71 ECU for the nine other Member States and 28.02 ECU for Greece, as the Management Committee accepted. However, it is said that with a view to cutting expenditure at the request of the Council, the Commission reduced each amount by 6.41 ECU. Consequently, the aid granted for the Nine was 40.30 ECU and that for Greece 21.61 ECU.

The applicants claim that the Commission (by making any reduction) thereby contravened Article 103 (3) of the Act of Accession on the grounds that that provision requires the amount of aid to be fixed at the actual difference between the level of prices of third countries and that obtaining in Greece. At first sight this argument seems convincing. Nevertheless, on closer examination it seems to me that that provision, like Article 3b (1) of Regulation No 516/77 on which it is modelled, does give some discretion to the Commission in fixing the aids. This is because the determination of the level of prices in third countries and in Greece is inevitably not a precise arithmetical operation. This is clearly shown by the wording of the provisions concerned. The prices of products from nonmember countries are, by virtue of Article 3b (3) of Regulation No 516/77, to be determined ‘having regard to’ certain factors. Similarly, under Article 103 (3) certain matters are to be ‘taken into account’ in assessing the level of prices of Greek products. I would therefore not accept this argument.

As the applicants point out, in percentage terms the aid was reduced more for Greece than for the other Member States. Nevertheless, in absolute terms the reduction was the same so that I would not accept that Articles 7 and 40 (3) have been infringed.

On the other hand, I would accept, for the reasons given in my Opinion in Case 192/83, the applicants' second submission to the effect that the Commission infringed Article 103 (3) by applying the same coefficients to Greece as to ‘the Nine’. Since the arguments are the same as in Case 192/83, I need not repeat them here. The only difference is that these cases concern the 1981/82 and 1982/83 marketing years, whereas Case 192/83 relates to the 1983/84 marketing year. However, by virtue of Regulations Nos 1962/81, 1602/82 and 1615/83, the coefficients were the same in all three years. It follows that Regulations Nos 1962/81 and 1602/82 were unlawful in so far as they related to Greece.

Article 103 (3) is a Treaty provision, since Article 1 (2) of the Treaty of Accession stipulates that the Act of Accession shall form an integral part of that Treaty. Contrary to what the Commission has suggested, the fact that Article 103 (3) governs the application of Regulation No 516/77 to Greece during the transitional period does not deprive it of its status as a Treaty provision. It follows, in my view, that the Regulations complained of did infringe a superior rule of law.

Moreover, it seems to me that the breach was sufficiently serious to ground liability under Article 215 (2). The aim of Article 103 was to align the aid paid in Greece over a period of years with that paid in the other Member States. In particular, paragraph 3 sought to achieve this aim by providing that, until this process of alignment was complete, the level of prices of Greek products was to be calculated separately from those in the nine other Member States. Accordingly, by applying the same coefficients to Greece as to the other Member States the Commission has not merely committed a minor infringement of Article 103 (3), but has failed to observe the basic tenet on which it is based.

In addition, there can be no doubt that that provision is intended to protect individuals, the Greek processors of fruit and vegetables, even if they are required in turn to ensure that the minimum price is paid to the producers, who may, as the Commission contends, be the main intended beneficiaries of the scheme.

Since the illegality consists in the grant of lower aids to the applicants than they were entitled to, the existence of damage and causal connection with the illegality are established. Moreover, the applicants have set out in minute detail the precise amount of loss which they claim to have suffered. It follows, though the details have not been investigated in depth in these proceedings, in my view, since there has clearly been some loss, that the Commission is liable to pay damages to the applicants under Article 215 (2) with respect to damage caused by Regulations Nos 1962/81 and 1602/82.

It remains to calculate the quantum of damages. This will depend on the recalculation of the coefficients on the basis of the actual processing costs obtaining in Greece, without taking into consideration undertakings which have higher costs. This task falls to the Commission in cooperation with the applicants, subject to the control of the Court. The Court cannot, therefore, at this stage determine the quantum of damages.

To my mind the appropriate course would be for the Court to make an order similar to that made in Cases 64 and 113/76 Dumortier v Council [1979] ECR 3091. The Commission should be ordered to pay to the applicants the difference between the amount of aid paid in the two marketing years concerned and the amount if higher that would have been granted if the correct coefficients had been applied. Apart from the coefficients and their application, the calculations should remain unaltered, since the coefficients are the only aspect of the calculation successfully challenged by the applicants. The parties should further be ordered to inform the Court within 12 months from the delivery of the judgment of the amounts of compensation arrived at by agreement, or in default of agreement, should be ordered to transmit to the Court within the same period a statement of their contentions with supporting figures.

Finally, there is the question of interest. Starting with Cases 27 and 39/59 Campolongo v High Authority [1960] ECR 391 at p. 407, the Court has made a distinction between interest in respect of delay (‘intérêts moratoires’) and compensatory interest (‘intérêts compensatoires’). The former is due automatically in the event of delay, whereas compensatory interest is only payable where specific loss is shown.

The applicants claim interest at 24% in view of interest rates prevalent in Greece. They do not suggest that they would have invested the money and that they have lost interest which they would otherwise have received, but rather, in respect of some of them, that being short of money, since they did not receive the full aid, they had to borrow money from the banks. I am not satisfied that the need to borrow money sprang so much from the failure to receive the aid as from their general financial position. It seems to me accordingly that they are not entitled to the rates of interest which they claim. On the other hand (although, as I have said previously, I consider 6% to be no longer in line with current interest rates, and although I for my part would award 8%) it seems that in the light of Cases 75 and 117/82 Razzouk and Beydoun v Commission [1984] ECR 1509 and Case 737/79 Battaglia v Commission [1985] ECR 72 interest of 6% calculated from the date on which the applications were lodged with the Court should be awarded on the amounts, if any, found to be due to the several applicants respectively.

I conclude accordingly that the Commission is liable, pursuant to Article 215 of the Treaty to make good the amount of any damage found to have been suffered by the applicants flowing from the Commission's failure to calculate the amount of aid due in respect of quantities of tomato concentrate, other than that containing between 28% and 30% dry matter, and packed in units of less than 1.5 kg., together with interest from the date when the applications were lodged with the Court at the rate of 6% per annum and that the Commission should pay the applicants' costs.