CELEX: 61977CC0116
Language: en
Date: 1978-06-20 00:00:00
Title: Opinion of Mr Advocate General Reischl delivered on 20 June 1978. # G. R. Amylum NV and Tunnel Refineries Limited v Council and Commission of the European Communities. # Isoglucose - Direct action. # Joined cases 116 and 124/77.

OPINION OF MR ADVOCATE GENERAL REISCHL
      DELIVERED ON 20 JUNE 1978 (
            1
         )
      
         Mr President,
      
         Members of the Court,
      For the facts of these cases, to which I now turn, I can refer to my introduction to Joined Cases 103, 125 and 145/77 in which preliminary rulings were requested, since the present cases are also concerned with isoglucose, the new sweetener made from starch, and the rules relating thereto, namely the introduction of a production levy by Council Regulation (EEC) No 1111/77 of 17 May 1977 (Official Journal of 28 May 1977, L 134, p. 4).
      The applicants have for some time either produced isoglucose or invested considerable sums in setting up and extending plant for its production. They take the view that the introduction of the production levy on isoglucose has laid an excessive burden on them with the result that the manufacture of isoglucose will have to be discontinued because it is unprofitable or that its production cannot be commenced. It is alleged that since the said Community rules are from several points of view a sufficiently clear violation of superior rules of law for the protection of the individual and there may consequently be a wrongful act or omission on the part of the responsible Community institutions, the latter are liable to pay compensation for the damage which has been and will be caused by those rules.
      Particulars of the claims put forward are as follows:
      In Case 116/77 the Council and the Commission, the Community's institutions responsible for the adoption of Council Regulation (EEC) No 1111/77 of 17 May 1977 (Official Journal 1977, L 134, p. 4) and Commission Regulation (EEC) No 1468/77 of 30 June 1977 (Official Journal 1977, L 162, p. 7) should be ordered to pay compensation for the damage resulting therefrom which is provisionally estimated at BF 777 million.
      The applicant in Case 124/77 claims that the Council and Commission should be ordered to pay compensation for the damage suffered as a result of the rules relating to the production levy, with special reference to the cost of amortization and of the conversion of the industrial installations planned for the production of isoglucose and also to losses on isoglucose production in the 1977/78 financial year.
      Finally the applicant in Case 143/77 in addition to asking for a declaration similar to that in Case 116/77 claims that the Community should be ordered to pay compensation for the damage caused by the regulation, which is provisionally estimated at HFL 154268000.
      The Council and Commission contend that the Court should dismiss these claims as being inadmissible, but at least as unfounded (in Cases 116 and 124/77), or as being unfounded (in Case 143/77).
      I should now like to mention also that in another case (Case 153/77, Koninklijke Scholten-Honig N. V. v Council and Commission of the European Communities, still sub judice) the applicant also claims damages for discontinuance of the production refund for isoglucose with reference to Council Regulation (EEC) No 1862/76 (Official Journal of 31 July 1976, L 206, p. 3) and Council Regulation (EEC) No 2158/76 (Official Journal of 2 September 1976. L 241, p. 21). That case had not been joined to the proceedings which now have to be dealt with; therefore the problems which it raises have yet to be considered and may be dealt with in a separate opinion.
      
               I —
            
            
               Following the defendants' contentions I must first consider the admissibility of the claims. In doing so however I can be relatively brief for reasons which are obvious having regard to what I have said in Joined Cases 103, 125 and 145/77 in which preliminary rulings were requested.
               
                        1.
                     
                     
                        Admissibility is challenged first of all with reference to the requirements of Article 38 of the Rules of Procedure. In this respect the Council's and the Commission's criticism is — and it is connected with the question of direct damage — that there is insufficient proof that it is actually the production levy which is responsible for the closure of the factories and that other factors play no part in this.
                        However under Article 38 of the Rules of Procedure nothing more is required than a brief statement of the grounds upon which the application is based, that is a summary of the substance of the applicant's case, which can be developed and set out in greater detail during the proceedings. In my opinion — I do not now intend to substantiate it in detail — that requirement has been complied with in these cases. At all events it is not possible to say that there are such serious defects that for that reason — in particular because the defendants were unable to defend themselves appropriately — the applications would have to be dismissed as inadmissible.
                     
                  
                        2.
                     
                     
                        There is a further complaint that damage is claimed to have been caused to a whole group of undertakings so that the applicants' are not relying on damage which is special to themselves.
                        In my view it suffices on this point to refer to the fact that such a prerequisite may apply in the case of strict liability but not to claims against public authorities for damages. Consequently the applicants were right to refer to a large number of earlier cases in which the damage was also not caused to a single undertaking in each case and claims for damages were nevertheless not regarded as inadmissible.
                     
                  
                        3.
                     
                     
                        In so far as the claims are based on the contention that the production levy imposes such a burden on the isoglucose manufacturers that production becomes unprofitable and therefore has to be discontinued the further objection is raised that the inference to be drawn from the pleadings of some of the applicants (those in Cases 124 and 143/77) and also from the application in Case 153/77 is that the manufacture of isoglucose became unprofitable as soon as the production refund was discontinued. If however that is the case it must be accepted that the production levy cannot be regarded as having caused the consequences bound up with the cessation of production.
                        I would not care to agree with that either. A consideration of the question of admissibility cannot in my opinion involve an examination in detail of the question of causation, which goes to the substance of the case; it depends on the contrary simply on the conclusiveness of the statements relating thereto. However that is not lacking in these cases. Thus is by no means essential to draw the inference from the non-profitability of production, which is said to have been caused by the discontinuance of the production refund, that the closure of factories was necessary. After all. the profitability question may appear in a different light if economic conditions change. Consequently in my view the statement that only the imposition of the levies represented as it were the death blow to isoglucose production is not one which is impossible from the beginning. and this is sufficient in the present connexion.
                     
                  
                        4.
                     
                     
                        Then the Council and Commission also criticize the present applications principally on the ground that they claim compensation for damage which had not yet occurred when the applications were lodged and that that damage lacks certainty. According to the grounds of the statements of claim the production levy makes discontinuance of production inevitable in the future; this must then necessitate the dismissal of employees against payment of compensation, writing off investments and industrial plant or even a change of direction for the entire group; furthermore loss of profits must be expected.
                        On this issue I should like first of all to point out that the applications clearly do not refer throughout simply to damage caused for the future. Thus in Case 143/77 at least reference is also made to the immediate discontinuance of building operations in Tilbury and compensation is claimed for expenditure incurred in developing isoglucose which must be regarded as thrown away.
                        I should furthermore like to stress that there is no support in the case-law of the Court for the distinction drawn by the Commission between damage in the sense of ‘dommage’, which must have already occurred when the action is brought and consequences of damage in the sense of ‘préjudice’ which may continue to flow therefrom. According to the decided cases (cf. judgment of 2 June 1976 in Joined Cases 56 to 60/74 Kurt Kampffmeyer Mühlenvereinigung KG and Others v Commission and Council of the European Communities [1976] ECR 711 and judgment of 2 March 1977 in Case 44/76 Milch-, Fett- und Eierkontor GmbH v Council and Commission of the European Communities [1977] ECR 393) claims for compensation for future damage are on the contrary clearly admissible owing in particular to the consideration that in this way the damage can be kept to a minimum. The prerequisite is simply that the cause of the damage is already established and that the damage is imminent and can consequently be foreseen with sufficient certainty.
                        As far as these prerequisites are concerned the first-mentioned undoubtedly is present because the cause of the damage is said to be the legal order to pay the levies, at the rate of 5 u. a. per 100 kg, which was originally intended to apply only for one year but is now applicable until 1980. Fulfilment of the second condition cannot however also be completely ruled out, as in this connexion absolute certainty and in particular quantification of the damage are not required but merely sufficient certainty. For the examination of admissibility that would depend only upon sufficiently conclusive statements but not on the other hand on actual proof. However, such statements — with figures giving particulars of the production costs of isoglucose and of its capacity to bear the levy — do in fact exist and they are certainly capable of giving the impression that the production levy might sooner or later lead to the cessation of isoglucose production. This seems to me in the present connexion to be sufficient. On the other hand we need not at present consider whether this applies to all the damage which it is claimed has been caused and possibly also to loss of future profits.
                     
                  
                        5.
                     
                     
                        Finally the proposition that the production levy is to be regarded as the direct cause of the damage alleged was also called in question. It appears on the other hand to be reasonable to suppose that in this connexion the applicants showed a certain lack of prudence when making their capital investments since, in view of the relative trend of economic conditions they certainly ought to have taken account of the rules relating to levies.
                        On this issue it is in my opinion sufficient to point out that the objection clearly relates to the question who was ultimately responsible for the adverse effects for which compensation is claimed, or — if you like — to the question of possible contributory negligence. However, such considerations undoubtedly have no relevance to the examination of the question of admissibility; they clearly belong to the substance of the case.
                     
                  
         
               II —
            
            
               Accordingly, as far as the admissibility of the applications is concerned, no effectual objections exist. However, on the question whether they are well founded the following brief observations must be made.
               The first prerequisite for a claim concerning liability based on the act of a public authority, is that the latter must be shown to be illegal. If the acts in question are legislative and have an economic element in them — and the introduction of a production levy on isoglucose is undoubtedly such an element — then in addition a sufficiently serious breach of a superior rule of law for the protection of the individual is required (judgment of 2 December 1971 in Case 5/71 Aktien-Zuckerfabrik Schöppenstedt v Council of the European Communities [1971] ECR 975).
               On this point the applicants have relied on arguments most of which are the same as those submitted in connexion with the validity of Regulation No 1111/77 in Cases 103 and 145/77 in which preliminary rulings are requested. In so far as they have put forward further points of view in the proceedings concerning the liability of the authorities I have also already dealt with them in those proceedings. I can therefore now surely refrain from going into all those arguments again and would merely recapitulate that none of the aspects considered — neglect of the objectives of Article 39 of the EEC Treaty, violation of the principle of proportionality, infringement of the prohibition of discrimination, infringement of the right to carry on a business, failure to comply with the principle of legal certainty, non-observance of the principle of the protection of legitimate expectation, and also misuse of powers — has cast any doubt on the validity and legality of the rules applicable to the levy on isoglucose. This suffices in this connexion. In particular it is accordingly unnecessary to consider the problem also raised by the applicants, namely whether all the rules of law which have been mentioned — especially the objectives of Article 39 and the principle of proportionality — are to be regarded as superior rules of law within the meaning of the decided cases to which reference has been made. All things considered the only possible course to take is in my view to dismiss the applications in their entirety as unfounded.
            
         
               III —
            
            
               To sum up I recommend therefore that the applications lodged by the undertakings Amylum, Tunnel Refineries and Koninklijke Scholten relating to the liability of the authorities be dismissed and the applicants be ordered to pay the costs under Article 69 of the Rules of Procedure.
            
         (
            1
         )	Translated from the German.