Firma Anton Dürbeck v Commission of the European Communities.
Date: 1982-04-01
3 ON 5 MAY 1981 IN CASE 112/80 THE COURT RULED , IN REPLY TO A PRELIMINARY QUESTION PUT TO IT BY THE HESSISCHES FINANZGERICHT ( FINANCE COURT , HESSE ) ON THE VALIDITY OF THE REGULATIONS , THAT : ' ' CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF COMMISSION REGULATIONS NOS 687/79 , 797/79 AND 1152/79 ' ' .
4 AT THE HEARING ON 19 NOVEMBER 1981 DURBECK STATED THAT IN VIEW OF THE JUDGMENT GIVEN BY THE COURT IN CASE 112/80 IT WAS ABANDONING ITS SUBMISSION IN CASE 11/81 THAT REGULATIONS NOS 687/79 , 797/79 AND 1152/79 WERE INVALID . IT NEVERTHELESS MAINTAINED ITS CLAIM FOR COMPENSATION , ARGUING THAT SOME OF THE SUBMISSIONS PLEADED IN ITS APPLICATION , IN PARTICULAR THE SUBMISSIONS BASED ON BREACH OF THE PRINCIPLES OF NON-DISCRIMINATION AND THE PROTECTION OF LEGITIMATE EXPECTATION , COULD BE RELIED UPON EVEN WITHOUT CHALLENGING THE VALIDITY OF THE AFOREMENTIONED REGULATIONS . IT ALSO PUT FORWARD A FRESH SUBMISSION RELATING TO THE POSSIBILITY OF HOLDING THE COMMUNITY LIABLE EVEN FOR LAWFUL MEASURES .
5 IN THESE CIRCUMSTANCES IT IS NECESSARY FIRST OF ALL TO DETERMINE WHETHER THE SUBMISSIONS WHICH THE APPLICANT STATES IT IS PURSUING IN FACT CORRESPOND TO THE SUBMISSIONS MADE IN ITS APPLICATION OR WHETHER THEY ARE INDEED FRESH SUBMISSIONS RAISED IN THE COURSE OF THE PROCEEDINGS , WHICH , TO BE ACCEPTED , MUST SATISFY THE CONDITIONS LAID DOWN BY ARTICLE 42 ( 2 ) OF THE RULES OF PROCEDURE . IT IS ALSO NECESSARY TO EMPHASIZE THAT ANY SUBMISSION WHICH AMOUNTS TO CHALLENGING THE VALIDITY OF REGULATIONS NOS 687/79 , 797/79 AND 1152/79 FOR REASONS IDENTICAL TO THOSE WHICH THE COURT HAS ALREADY CONSIDERED AND DISMISSED IN ITS JUDGMENT OF 5 MAY 1981 MUST BE REJECTED .

BREACH OF THE PRINCIPLE OF NON-DISCRIMINATION
6 THE APPLICANT CLAIMS THAT THE FINDING IN PARAGRAPHS 52 TO 54 OF THE JUDGMENT OF 5 MAY 1981 THAT REGULATIONS NOS 797/79 AND 1152/79 WERE DESIGNED SOLELY TO ADJUST THE APPLICATION OF THE PROTECTIVE MEASURES TO GOODS ALREADY IN TRANSIT TO THE COMMUNITY WITHIN THE MEANING OF ARTICLE 3(3 ) OF REGULATION NO 2707/72 IS BASED PARTLY ON A FACTUAL ERROR BECAUSE IT IS IN FACT WELL KNOWN THAT THE GOODS ALLOWED TO BE IMPORTED PURSUANT TO REGULATION NO 1152/79 WERE NOT IN TRANSIT TO THE COMMUNITY UNTIL AFTER 12 APRIL 1979 , BY WHICH DATE , ACCORDING TO REGULATION NO 797/79 , THE DESSERT APPLES OUGHT TO HAVE LEFT CHILE .
8 THE ABOVE-MENTIONED SUBMISSION WAS INCLUDED IN THE APPLICATION AND IS THEREFORE ADMISSIBLE . MOREOVER , ALTHOUGH IT AMOUNTS IN SUBSTANCE TO CHALLENGING REGULATION NO 1152/79 AS DISCRIMINATORY , IT IS BASED ON A FACTOR WHICH WAS NOT TAKEN INTO ACCOUNT IN CASE 112/80 . IT IS RIGHT THEREFORE TO CONSIDER THE SUBMISSION IN THE PRESENT ACTION .
15 IT MUST BE OBSERVED THAT THIS ISSUE WAS RAISED ONLY DURING THE ORAL PROCEDURE AND IS THEREFORE ALSO A FRESH SUBMISSION BASED ON THE JUDGMENT OF THE COURT OF 5 MAY 1981 .
17 FOR A NEW FACT TO BE ABLE TO JUSTIFY THE RAISING OF A FRESH ISSUE DURING THE PROCEEDINGS THE FACT MUST NOT HAVE EXISTED OR MUST NOT HAVE BEEN KNOWN TO THE APPLICANT WHEN THE ACTION WAS COMMENCED . SINCE MEASURES ADOPTED BY THE COMMUNITY INSTITUTIONS ARE PRESUMED TO BE VALID UNTIL SUCH TIME AS THE COURT MAY DECLARE THEM INCOMPATIBLE WITH THE TREATIES ESTABLISHING THE COMMUNITIES , THE JUDGMENT GIVEN BY THE COURT IN CASE 112/80 MERELY CONFIRMED THE LAW WHICH WAS KNOWN TO THE APPLICANT WHEN IT BROUGHT ITS ACTION .