1 BY AN APPLICATION MADE ON 13 AUGUST 1979 THE FRENCH COMPANY SUCRIMEX S.A . AND THE GERMAN COMPANY WESTZUCKER GMBH APPLIED TO THE COURT UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY FOR THE ANNULMENT OF A ' ' . . . DECISION OF THE COMMISSION SENT TO THE FONDS D ' INTERVENTION ET DE REGULARISATION DU MARCHE DU SUCRE ( SUGAR MARKET INTERVENTION AND STABILIZATION FUND ) ON 3 JULY 1979 WHICH REFUSED SUCRIMEX PAYMENT OF THE REFUND CALCULATED ON THE BASIS OF THE RATE FIXED BY TENDERING PROCEDURE . . . ' ' AND , IN THE ALTERNATIVE , UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY , FOR AN ORDER THAT THE COMMISSION PAY THE SUM OF FF 921 339.04 AS COMPENSATION FOR THE DAMAGE SUFFERED BY THE APPLICANT COMPANIES .
2 THE ACTION ARISES FROM THE ASSIGNMENT BY WESTZUCKER TO SUCRIMEX OF THE RIGHTS ATTACHING TO EXPORT LICENCES PREPARED BY THE BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG ( FEDERAL OFFICE FOR THE ORGANIZATION OF AGRICULTURAL MARKETS ) RELATING TO 2 600 TONNES OF SUGAR WITH ADVANCE FIXING BY TENDERING PROCEDURE OF THE EXPORT REFUND VALID UNTIL 31 MAY 1979 .
3 THE CERTIFICATES WERE LOST AND THE FEDERAL OFFICE PREPARED NEW LICENCES AND THE 2 600 TONNES OF SUGAR TO WHICH THEY RELATED WERE EXPORTED UNDER COVER OF THOSE LICENCES ON 30 AND 31 MAY 1979 .
4 IN THE MEANTIME THE ASSOCIATION DES ORGANISATIONS PROFESSIONNELLES DU COMMERCE DES SUCRES HAD ASKED THE COMMISSION BY TELEX MESSAGE OF 23 MAY 1979 TO DEAL URGENTLY WITH THE PROBLEM CREATED BY THE LOST CERTIFICATES SINCE IN ITS OPINION THE RULE LAID DOWN BY ARTICLE 17 ( 7 ) OF REGULATION NO 193/75 OF THE COMMISSION OF 17 JANUARY 1975 LAYING DOWN COMMON DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF IMPORT AND EXPORT LICENCES AND ADVANCED FIXING CERTIFICATES FOR AGRICULTURAL PRODUCTS ( OFFICIAL JOURNAL L 25 , P . 10 ) WAS UNSATISFACTORY .
5 THAT PROVISION READS AS FOLLOWS : ' ' WHERE A LICENCE OR CERTIFICATE OR EXTRACT THEREFROM IS LOST , ISSUING AGENCIES MAY , EXCEPTIONALLY , SUPPLY THE PARTY CONCERNED WITH A DUPLICATE THEREOF , DRAWN UP AND ENDORSED IN THE SAME WAY AS THE ORIGINAL DOCUMENT AND CLEARLY MARKED WITH THE WORD ' DUPLICATE ' ON EACH COPY . DUPLICATES MAY NOT BE SUBMITTED FOR PURPOSES OF CARRYING OUT IMPORT OR EXPORT OPERATIONS . ' '
6 ON THE SAME DAY THE COMMISSION CONFIRMED BY TELEPHONE MESSAGE TO THE PRESIDENT OF THE SYNDICAT DU COMMERCE DES SUCRES IN PARIS AND THEN BY TELEX MESSAGE OF 6 JUNE 1979 TO THE ASSOCIATION THE CONTENT OF THE APPLICABLE RULES , ADDING THAT ITS OFFICERS WERE PREPARED TO RE-EXAMINE THE QUESTION WITH THE EXPERTS FROM THE MEMBER STATES BUT THAT THEY COULD NOT SEE ANY SATISFACTORY WAY OF RESOLVING THE MATTER BECAUSE OF THE PROBLEMS OF CARRYING OUT CHECKS .
7 ON 6 AND 7 JUNE 1979 SUCRIMEX REQUESTED THE FUND TO PAY THE REFUNDS AT THE RATE FIXED IN ADVANCE . THE PROBLEM OF THE LOSS OF LICENCES WAS SUBSEQUENTLY DISCUSSED AT A MEETING OF THE MANAGEMENT COMMITTEE FOR SUGAR ON 13 JUNE 1979 . AT THAT MEETING A REPRESENTATIVE OF THE COMMISSION ' S LEGAL DEPARTMENT STATED THAT HE COULD NOT APPROVE OF A SOLUTION WHEREBY A REPLACEMENT LICENCE WOULD BE ISSUED FOR THE PURPOSE OF COMPLETING THE TRANSACTIONS ON CONDITION THAT THE EXPORTER PUT UP SECURITY EQUIVALENT TO THE REFUND . HE REQUESTED THAT PAYMENT OF THE DIFFERENCE BETWEEN THE REFUND APPLICABLE AT THE TIME OF EXPORT AND THAT PROVIDED FOR IN THE LOST CERTIFICATE SHOULD NOT BE MADE .
8 AFTER THOSE DISCUSSIONS THE FUND RECEIVED ON 3 JULY 1979 A TELEX MESSAGE SIGNED BY THE DIRECTOR GENERAL FOR AGRICULTURE OF THE COMMISSION WHICH , AFTER SUMMARIZING THE RULES APPLICABLE AND THE FACTS , CONCLUDED ' ' . . . THAT THERE IS NO LEGITIMATE REASON FOR PAYING THE REFUND CALCULATED ON THE BASIS OF THE RATE FIXED BY TENDERING PROCEDURE APPEARING IN THESE DOCUMENTS . SINCE THE SUGAR EXPORTS ARE DEEMED TO HAVE BEEN MADE WITHOUT ANY LICENCES , THE EXPORTER CAN CLAIM ONLY THE NORMAL REFUND APPLYING ON THE DAY WHEN THE CUSTOMS EXPORT FORMALITIES WERE COMPLETED . . . ' '
9 BY A LETTER OF 5 JULY 1979 THE FUND REJECTED THE APPLICATIONS OF SUCRIMEX OF 6 AND 7 JUNE , ' ' IN VIEW OF THE OPINION EXPRESSED BY THE OFFICERS OF THE COMMISSION ' ' IN THE TELEX MESSAGE REFERRED TO ABOVE . CONSEQUENTLY THE FUND AGREED TO PAY ONLY THE REFUND APPLICABLE ON THE DAYS WHEN THE CUSTOMS EXPORT FORMALITIES WERE COMPLETED , WHICH WAS FF 921 399.04 LESS THAN THAT REQUESTED BY SUCRIMEX .
10 IN SUPPORT OF THEIR APPLICATION FOR ANNULMENT THE APPLICANT COMPANIES CONTEND THAT THE COMMISSION IS WRONG TO REFER TO THE ' ' IDENTICAL ' ' LICENCES AS ' ' DUPLICATES ' ' , THAT IT IS DISREGARDING THE REGULATIONS ON EXPORT REFUNDS WHEN REJECTING AN APPLICATION FOR PAYMENT OF REFUNDS FOR EXPORTS MADE UNDER COVER OF ' ' IDENTICAL ' ' LICENCES , THAT IT IS IN BREACH OF THE PRINCIPLE OF LEGAL CERTAINTY FOR NOT TAKING A DECISION QUICKLY , AND FINALLY THAT IT IS IN BREACH OF THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION SINCE THE APPLICANTS WERE ENTITLED TO RELY ON THE LICENCES IN QUESTION ; MOREOVER THE DECISION IN QUESTION IS RETROACTIVE .
11 IN SUPPORT OF THEIR CLAIM FOR DAMAGES THE APPLICANTS CONTEND THAT THEY HAVE SUFFERED DAMAGE WHICH IS EQUIVALENT TO THE AMOUNT OF THE REFUNDS UNPAID OWING TO THE UNLAWFUL ACTS DESCRIBED ABOVE AND THE DEFAULT OF THE COMMISSION IN NOT CLEARLY EXPRESSING ITS POSITION UNTIL 3 JULY 1979 IN SPITE OF THE ASSOCIATION ' S TELEX MESSAGE OF 23 MAY 1979 .
12 THE COMMISSION HAS RAISED AN OBJECTION OF INADMISSIBILITY UNDER ARTICLE 91 ( 1 ) OF THE RULES OF PROCEDURE . IT IS APPROPRIATE TO GIVE A DECISION UPON THE ADMISSIBILITY OF THE DIFFERENT HEADS OF THE APPLICANTS ' CLAIMS WITHOUT GOING INTO THE SUBSTANCE OF THE CASE .
13 THE COMMISSION CONTENDS IN SUPPORT OF ITS OBJECTION OF INADMISSIBILITY RELATING TO THE APPLICATION FOR ANNULMENT THAT ITS TELEX MESSAGE OF 3 JULY 1979 CONSTITUTES ONLY AN INFORMATORY LETTER ADDRESSED TO THE FUND , WHICH IS LIMITED TO SUMMARIZING THE RULES APPLICABLE TO THE CASE AND CANNOT THEREFORE HAVE ANY LEGAL EFFECT . FURTHERMORE THE SAID TELEX MESSAGE IS BINDING ONLY ON THE OFFICERS OF THE COMMISSION AND CANNOT BE IMPUTED TO THE INSTITUTION ITSELF .
14 ON THE OTHER HAND THE APPLICANTS CLAIM THAT THE COMMISSION ' S TELEX MESSAGE EVINCES AN INTENTION TO TAKE A DECISION IN REGARD TO THEM WITHIN THE MEANING OF ARTICLE 189 OF THE TREATY . MOREOVER , IT CANNOT BE DISPUTED WITH ANY SERIOUSNESS THAT STATEMENTS MADE BY A DIRECTOR GENERAL IN THE PERFORMANCE OF HIS DUTIES BIND THE COMMISSION .
15 IN ORDER TO DETERMINE WHETHER THE COMMISSION ' S TELEX MESSAGE OF 3 JULY 1979 CONSTITUTES A DECISION ACTIONABLE AT THE SUIT OF THE APPLICANTS BY VIRTUE OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY , IT SHOULD BE EXAMINED TO ESTABLISH WHETHER IT WAS CAPABLE OF HAVING ANY LEGAL EFFECT .
16 IT IS ESTABLISHED CASE-LAW THAT THE APPLICATION OF COMMUNITY PROVISIONS ON EXPORT REFUNDS IS A MATTER FOR THE NATIONAL BODIES APPOINTED FOR THIS PURPOSE AND THAT THE COMMISSION HAS NO POWER TO TAKE DECISIONS ON THEIR INTERPRETATION BUT MAY ONLY EXPRESS ITS OPINION WHICH IS NOT BINDING UPON THE NATIONAL AUTHORITIES .
17 FURTHERMORE NEITHER THE WORDING NOR THE CONTENT OF THE CONTESTED TELEX MESSAGE SHOWS THAT IT WAS INTENDED TO PRODUCE ANY LEGAL EFFECT .
18 THE RESULT OF THESE FINDINGS IS THAT IN THIS CASE THERE HAS BEEN NO ACT OF THE COMMISSION CAPABLE OF FORMING THE BASIS OF AN ACTION FOR ANNULMENT .
19 THE APPLICATION MUST THEREFORE BE DISMISSED AS INADMISSIBLE IN SO FAR AS IT IS FOUNDED UPON THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY .
20 IN SUPPORT OF ITS OBJECTION OF INADMISSIBILITY RELATING TO THE CLAIM FOR DAMAGES THE COMMISSION CONTENDS THAT THE OPINION EXPRESSED IN ITS TELEX MESSAGE CANNOT BE REGARDED AS CONDUCT WHICH SATISFIES THE CONDITIONS LAID DOWN BY THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY ENABLING AN ACTION TO BE BROUGHT BEFORE THE COURT . FURTHERMORE , THE APPLICANTS SHOULD HAVE CHALLENGED BEFORE THE NATIONAL COURTS THE REFUSAL BY THE NATIONAL BODY TO GRANT THE DISPUTED REFUNDS .
21 FOR THEIR PART THE APPLICANTS TAKE THE VIEW THAT SINCE THE COMMISSION ' S SOLUTION CANNOT BE JUSTIFIED IN LAW THEY ARE ENTITLED TO SEEK PAYMENT OF THE REST OF THE REFUND BY MEANS OF AN ACTION FOR DAMAGES .
22 AS FAR AS CONCERNS THIS CLAIM , WHICH IS IN THE ALTERNATIVE AND IS FOR AN AMOUNT EQUIVALENT TO THE SUM OF THE UNPAID REFUNDS AND THEREFORE CLOSELY BOUND UP WITH THE APPLICATION FOR ANNULMENT , IT SUFFICES TO CALL TO MIND THE RELATIONSHIP , DESCRIBED ABOVE , BETWEEN THE COMMISSION AND THE FUND . THE TELEX MESSAGE , LIKE ALL THE COMMISSION ' S ACTIONS WHICH ARE IN DISPUTE , IS PART OF THE INTERNAL CO-OPERATION BETWEEN THE COMMISSION AND THE NATIONAL BODIES RESPONSIBLE FOR APPLYING COMMUNITY RULES IN THIS FIELD ; AS A GENERAL RULE THIS CO-OPERATION CANNOT MAKE THE COMMUNITY LIABLE TO INDIVIDUALS .
23 IN ANY CASE , IT IS NOT THE COMMISSION ' S DISPUTED TELEX MESSAGE BUT THE FUND ' S DECISION TO RATIFY THE OPINION EXPRESSED IN IT WHICH MIGHT BE REGARDED AS CAUSING DAMAGE TO THE APPLICANTS .
24 A REVIEW OF ADMINISTRATIVE ACTS OF MEMBER STATES IN APPLYING COMMUNITY LAW IS PRIMARILY A MATTER FOR NATIONAL COURTS WITHOUT PREJUDICE TO THEIR POWER TO REFER QUESTIONS FOR A PRELIMINARY RULING TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY . IN THE CIRCUMSTANCES THE REMEDY TO BE ENVISAGED IS AN ACTION BEFORE THE NATIONAL COURTS , TO WHICH THE APPLICANTS HAVE IN FACT ALREADY APPLIED .
25 THEREFORE THE APPLICATION MUST ALSO BE DISMISSED AS INADMISSIBLE IN SO FAR AS IT IS BASED ON ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY .