1 THE APPLICANTS IN THESE CASES REQUEST THAT THE EUROPEAN ECONOMIC COMMUNITY , REPRESENTED BY THE COUNCIL , BE ORDERED , PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY , TO COMPENSATE THEM FOR THE LOSS WHICH THEY CLAIM TO HAVE SUFFERED ON ACCOUNT OF THE ABOLITION OF THE PRODUCTION REFUNDS FOR MAIZE GROATS AND MEAL ( ' ' GRITZ ' ' ) INTENDED FOR THE BREWING OF BEER AS A RESULT OF REGULATION NO 665/75 OF THE COUNCIL OF 4 MARCH 1975 AMENDING REGULATION NO 120/67 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OFFICIAL JOURNAL 1975 L 72 OF 20 MARCH 1975 , P . 14 ).
2 THE CASES WERE JOINED FOR THE PURPOSE OF THE PROCEDURE AND IT IS APPROPRIATE TO MAINTAIN THE JOINDER FOR THE PURPOSE OF THE JUDGMENT .
3 IN ITS JUDGMENT OF 19 OCTOBER 1977 , DELIVERED PURSUANT TO REFERENCES FOR PRELIMINARY RULINGS FROM TWO FRENCH ADMINISTRATIVE COURTS IN JOINED CASES 124/76 AND 20/77 S.A . MOULINS ET HUILERIES DE PONT-A-MOUSSON AND SOCIETE COOPERATIVE ' ' PROVIDENCE AGRICOLE DE LA CHAMPAGNE ' ' V OFFICE NATIONAL INTERPROFESSIONNEL DES CEREALES ( 1977 ) ECR 1795 , THE COURT RULED THAT THE DISPUTED PROVISIONS OF THE COUNCIL REGULATIONS WERE INCOMPATIBLE WITH THE PRINCIPLE OF EQUALITY IN SO FAR AS THEY PROVIDED FOR MAIZE GROATS AND MEAL FOR THE BREWING INDUSTRY AND MAIZE STARCH TO RECEIVE DIFFERENT TREATMENT IN RESPECT OF PRODUCTION REFUNDS . THE COURT SAID FURTHER THAT IT WAS FOR THE INSTITUTIONS COMPETENT IN MATTERS OF COMMON AGRICULTURAL POLICY TO ADOPT THE MEASURES NECESSARY TO CORRECT THAT INCOMPATIBILITY .
4 FOLLOWING THAT JUDGMENT PRODUCTION REFUNDS FOR MAIZE GRITZ USED BY THE BREWING INDUSTRY WERE RE-INTRODUCED BY COUNCIL REGULATION NO 1125/78 OF 22 MAY 1978 AMENDING REGULATION NO 2727/75 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OFFICIAL JOURNAL L 142 OF 30 MAY 1978 , P . 21 ). THE AMOUNT OF THE REFUNDS WAS FIXED BY COUNCIL REGULATION NO 1127/78 ADOPTED AND PUBLISHED ON THE SAME DATE AS REGULATION NO 1125/78 ( OFFICIAL JOURNAL L 142 OF 30 MAY 1978 , P . 24 ). BOTH REGULATIONS ENTERED INTO FORCE ON THE THIRD DAY FOLLOWING THEIR PUBLICATION IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES . HOWEVER , PURSUANT TO THE LAST PARAGRAPH OF ARTICLE 1 OF REGULATION NO 1125/78 AND ARTICLE 6 OF REGULATION NO 1127/78 , THE REFUNDS WERE GRANTED AT THE REQUEST OF THE INTERESTED PARTY AS FROM 19 OCTOBER 1977 , THAT IS TO SAY WITH RETROACTIVE EFFECT FROM THE DATE OF THE JUDGMENT OF THE COURT IN THE ABOVE-MENTIONED PRELIMINARY RULINGS .
5 THUS THE OBJECT OF THE APPLICANTS ' CLAIMS IS TO OBTAIN COMPENSATION FOR THE DAMAGE WHICH THEY CLAIM TO HAVE SUFFERED AS A RESULT OF THE ABSENCE OF REFUNDS DURING THE PERIOD BETWEEN 1 AUGUST 1975 , ON WHICH DATE REGULATION NO 665/75 WAS FIRST APPLIED , AND 19 OCTOBER 1977 . THE ALLEGED DAMAGE CONSISTS , AS REGARDS ALL THE APPLICANTS , IN THE LOSS OF RECEIPTS EQUAL TO THE AMOUNTS OF THE REFUNDS WHICH WOULD HAVE BEEN PAID TO THEM IF MAIZE GRITZ HAD BENEFITED FROM THE SAME REFUNDS AS STARCH . ADMISSIBILITY
6 THE COUNCIL AND THE COMMISSION , THE DEFENDANTS , OBJECT THAT IN ORDER TO OBTAIN THE REFUNDS CLAIMED THE APPLICANTS SHOULD HAVE BROUGHT AN ACTION FOR PAYMENT OF THE REFUNDS AGAINST THE COMPETENT NATIONAL BODIES IN THE NATIONAL ADMINISTRATIVE COURTS . HOWEVER , THAT OBJECTION CANNOT BE UPHELD . ALTHOUGH IT IS TRUE THAT AN ACTION FOR THE PAYMENT OF AMOUNTS DUE UNDER COMMUNITY REGULATIONS MAY NOT BE BROUGHT UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY , THE CLAIMS SUBMITTED BY THE APPLICANTS IN THIS CASE CANNOT BE CLASSED AS CLAIMS FOR THE PAYMENT OF AMOUNTS DUE , BUT RATHER AS CLAIMS FOR COMPENSATION FOR THE ALLEGED DAMAGE RESULTING FROM THE UNLAWFULNESS ESTABLISHED BY THE JUDGMENT OF THE COURT OF 19 OCTOBER 1977 . MOREOVER , ACCORDING TO THE APPLICANTS , THAT DAMAGE IS NOT MEASURED SOLELY BY REFERENCE TO THE UNPAID REFUNDS . BESIDES , IN THE CIRCUMSTANCES OF THE CASE IT IS CLEAR THAT , PURSUANT TO THE SAID JUDGMENT OF THE COURT , A NATIONAL COURT COULD NOT HAVE UPHELD SUCH AN ACTION IN THE ABSENCE OF ANY PROVISIONS OF COMMUNITY LAW AUTHORIZING THE NATIONAL BODIES TO PAY THE AMOUNTS CLAIMED .
7 THE SAME CONSIDERATIONS APPLY TO THE COMMISSION ' S OBJECTION THAT THE REAL OBJECT OF THE APPLICATIONS , NAMELY THE PAYMENT OF THE REFUNDS NOT GRANTED , MAY BE ACHIEVED ONLY BY THE ADOPTION OF A NEW REGULATION AND THAT , SINCE THE APPLICANTS MAY NOT PURSUE SUCH AN OBJECTIVE BY MEANS OF THE ACTIONS PROVIDED FOR IN ARTICLES 173 AND 175 OF THE EEC TREATY , THEY ARE EQUALLY UNABLE TO DO SO BY MEANS OF THE ACTION FOR DAMAGES UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 . IN FACT , AS THE COURT HAS DECLARED ON REPEATED OCCASIONS , THE LATTER ACTION WAS SET UP AS AN INDEPENDENT REMEDY . THUS THE CLAIMS SUBMITTED BY THE APPLICANTS MUST BE CONSIDERED BY WAY OF SUCH AN ACTION AND MAY BE UPHELD , IF THEY ARE WELL FOUNDED , WITHOUT ITS BEING NECESSARY FOR THE DEFENDANTS TO ADOPT NEW LEGISLATIVE MEASURES . SUBSTANCE
8 SINCE BY ITS JUDGMENT OF 19 OCTOBER 1977 , THE COURT HAS ALREADY ESTABLISHED THAT THE ABOLITION OF THE REFUNDS FOR MAIZE GRITZ FOR THE BREWING INDUSTRY , TOGETHER WITH THE RETENTION OF THE REFUNDS FOR MAIZE STARCH , WAS INCOMPATIBLE WITH THE PRINCIPLE OF EQUALITY , THE FIRST PROBLEM WHICH ARISES IN THESE CASES IS WHETHER THE UNLAWFULNESS THUS ESTABLISHED IS OF SUCH A NATURE AS TO RENDER THE COMMUNITY LIABLE UNDER THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY .
9 THE FINDING THAT A LEGAL SITUATION RESULTING FROM THE LEGISLATIVE MEASURES OF THE COMMUNITY IS UNLAWFUL IS NOT SUFFICIENT IN ITSELF TO GIVE RISE TO SUCH LIABILITY . THE COURT HAS ALREADY EXPRESSED THAT VIEW IN ITS JUDGMENT OF 25 MAY 1978 IN JOINED CASES 83/76 AND OTHERS BAYERISCHE HNL VERMEHRUNGSBETRIEBE AND OTHERS V COUNCIL AND COMMISSION ( 1978 ) ECR 1209 . IN THIS REGARD , THE COURT RECALLED ITS SETTLED CASE-LAW , ACCORDING TO WHICH THE COMMUNITY DOES NOT INCUR LIABILITY ON ACCOUNT OF A LEGISLATIVE MEASURE WHICH INVOLVES CHOICES OF ECONOMIC POLICY UNLESS A SUFFICIENTLY SERIOUS BREACH OF A SUPERIOR RULE OF LAW FOR THE PROTECTION OF THE INDIVIDUAL HAS OCCURRED . TAKING INTO CONSIDERATION THE PRINCIPLES IN THE LEGAL SYSTEMS OF THE MEMBER STATES GOVERNING THE LIABILITY OF PUBLIC AUTHORITIES FOR DAMAGE CAUSED TO INDIVIDUALS BY LEGISLATIVE MEASURES , THE COURT SAID THAT IN THE CONTEXT OF COMMUNITY PROVISIONS IN WHICH ONE OF THE CHIEF FEATURES WAS THE EXERCISE OF A WIDE DISCRETION ESSENTIAL FOR THE IMPLEMENTATION OF THE COMMON AGRICULTURAL POLICY , THE COMMUNITY DID NOT INCUR LIABILITY UNLESS THE INSTITUTION CONCERNED MANIFESTLY AND GRAVELY DISREGARDED THE LIMITS ON THE EXERCISE OF ITS POWERS .
10 IN THE CIRCUMSTANCES OF THESE CASES , THE COURT IS LED TO THE CONCLUSION THAT THERE WAS ON THE PART OF THE COUNCIL SUCH A GRAVE AND MANIFEST DISREGARD OF THE LIMITS ON THE EXERCISE OF ITS DISCRETIONARY POWERS IN MATTERS OF THE COMMON AGRICULTURAL POLICY . IN THIS REGARD THE COURT NOTES THE FOLLOWING FINDINGS IN PARTICULAR .
11 IN THE FIRST PLACE IT IS NECESSARY TO TAKE INTO CONSIDERATION THAT THE PRINCIPLE OF EQUALITY , EMBODIED IN PARTICULAR IN THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE EEC TREATY , WHICH PROHIBITS ANY DISCRIMINATION IN THE COMMON ORGANIZATION OF THE AGRICULTURAL MARKETS , OCCUPIES A PARTICULARLY IMPORTANT PLACE AMONG THE RULES OF COMMUNITY LAW INTENDED TO PROTECT THE INTERESTS OF THE INDIVIDUAL . SECONDLY , THE DISREGARD OF THAT PRINCIPLE IN THIS CASE AFFECTED A LIMITED AND CLEARLY DEFINED GROUP OF COMMERCIAL OPERATORS . IT SEEMS , IN FACT , THAT THE APPLICANTS IN THESE CASES AND IN THE RELATED CASES 64/76 AND OTHERS P . DUMORTIER FRERES S.A . AND OTHERS V COUNCIL COMPRISE THE ENTIRE MAIZE GRITZ INDUSTRY OF THE COMMUNITY . FURTHER , THE DAMAGE ALLEGED BY THE APPLICANTS GOES BEYOND THE BOUNDS OF THE ECONOMIC RISKS INHERENT IN THE ACTIVITIES IN THE SECTOR CONCERNED . FINALLY , EQUALITY OF TREATMENT WITH THE PRODUCERS OF MAIZE STARCH , WHICH HAD BEEN OBSERVED FROM THE BEGINNING OF THE COMMON ORGANIZATION OF THE MARKET IN CEREALS , WAS ENDED BY THE COUNCIL IN 1975 WITHOUT SUFFICIENT JUSTIFICATION .
12 THE COUNCIL ' S DISREGARD OF THE LIMITS IMPOSED UPON ITS DISCRETIONARY POWER IS RENDERED ALL THE MORE MANIFEST BY THE FACT THAT , AS THE COURT POINTED OUT IN ITS JUDGMENT OF 19 OCTOBER 1977 , THE COUNCIL HAS NOT ACTED UPON A PROPOSAL MADE BY THE COMMISSION IN JUNE 1975 TO RE-INTRODUCE THE REFUNDS FOR MAIZE GRITZ ON THE GROUND THAT THE ABSENCE OF SUCH REFUNDS COULD FORESEEABLY UPSET THE BALANCE BETWEEN THE BREWERIES ' RAW MATERIALS COSTS IN MAIZE GRITZ AND MAIZE STARCH .
13 FOR THOSE REASONS THE COURT ARRIVES AT THE CONCLUSION THAT THE COMMUNITY INCURS LIABILITY FOR THE ABOLITION OF THE REFUNDS FOR MAIZE GRITZ UNDER REGULATION NO 665/75 OF THE COUNCIL .
14 THIS SAID , IT IS NECESSARY TO GO ON TO EXAMINE THE DAMAGE RESULTING FROM THE DISCRIMINATION TO WHICH THE GRITZ PRODUCERS WERE SUBJECTED . THE ORIGIN OF THE DAMAGE COMPLAINED OF BY THE APPLICANTS LIES IN THE ABOLITION BY THE COUNCIL OF THE REFUNDS WHICH WOULD HAVE BEEN PAID TO THE GRITZ PRODUCERS IF EQUALITY OF TREATMENT WITH THE PRODUCERS OF MAIZE STARCH HAD BEEN OBSERVED . HENCE , THE AMOUNT OF THOSE REFUNDS MUST PROVIDE A YARDSTICK FOR THE ASSESSMENT OF THE DAMAGE SUFFERED .
15 THE COUNCIL AND THE COMMISSION OBJECTED TO THAT METHOD OF CALCULATING THE DAMAGE ON THE GROUND THAT THE GRITZ PRODUCERS ELIMINATED , OR COULD HAVE ELIMINATED , THE DAMAGE BY PASSING ON THE LOSS RESULTING FROM THE ABOLITION OF THE REFUNDS IN THEIR SELLING PRICES . IN PRINCIPLE , IN THE CONTEXT OF AN ACTION FOR DAMAGES , SUCH AN OBJECTION MAY NOT BE DISMISSED AS UNFOUNDED . IN FACT , IT MUST BE ADMITTED THAT IF THE LOSS FROM THE ABOLITION OF THE REFUNDS HAS ACTUALLY BEEN PASSED ON IN THE PRICES THE DAMAGE MAY NOT BE MEASURED BY REFERENCE TO THE REFUNDS NOT PAID . IN THAT CASE THE PRICE INCREASE WOULD TAKE THE PLACE OF THE REFUNDS , THUS COMPENSATING THE PRODUCER .
16 FOR THEIR PART , THE APPLICANTS DISPUTE THAT THE LOSS WAS PASSED ON IN THE WAY ALLEGED . THEY STATE THAT , FACED WITH THE COMPETITION FROM THE STARCH PRODUCERS BENEFITING FROM REFUNDS , THEY CHOSE , AS A MATTER OF COMMERCIAL POLICY , TO SELL GRITZ AT A LOSS IN ORDER TO RETAIN THEIR MARKETS , RATHER THAN RAISE THE PRICES AT THE RISK OF LOSING THOSE MARKETS . THE PRICE INCREASES REFERRED TO BY THE COUNCIL AND THE COMMISSION ARE , IN THE APPLICANTS ' SUBMISSION , DUE TO THE RISE IN THE THRESHOLD PRICE OF MAIZE AND TO THE INCREASE IN PRODUCTION COSTS .
17 THE PARTIES HAVE PUT FORWARD STATISTICS AND OTHER DATA IN SUPPORT OF THEIR RESPECTIVE SUBMISSIONS . THOSE DATA DO NOT PERMIT THE CONCLUSION ADVANCED BY THE COUNCIL AND THE COMMISSION TO BE ACCEPTED . THE CONCLUSION WHICH EMERGES IS RATHER THAT DURING THE PERIOD IN DISPUTE THE PRICES FOR GRITZ CHARGED BY THE APPLICANTS AND THE PRICE OF STARCH DEVELOPED ALONG SIMILAR LINES WITHOUT REFLECTING THE ABSENCE OF REFUNDS FOR GRITZ .
18 IT FOLLOWS THAT THE LOSS FOR WHICH THE APPLICANTS MUST BE COMPENSATED HAS TO BE CALCULATED ON THE BASIS OF ITS BEING EQUIVALENT TO THE REFUNDS WHICH WOULD HAVE BEEN PAID TO THEM IF DURING THE PERIOD FROM 1 AUGUST 1975 TO 19 OCTOBER 1977 THE USE OF MAIZE FOR THE MANUFACTURE OF GRITZ USED BY THE BREWING INDUSTRY HAD CONFERRED A RIGHT TO THE SAME REFUNDS AS THE USE OF MAIZE FOR THE MANUFACTURE OF STARCH .
19 HOWEVER , ONE OF THE APPLICANTS , NAMELY S.A . MAISERIES BENELUX N.V . ( CASE 245/78 ), IS IN A SPECIAL SITUATION . IT APPEARS FROM THE FILE IN THE CASE THAT THE UNDERTAKING WAS FOUNDED AND COMMENCED PRODUCTION OF MAIZE GRITZ ONLY IN FEBRUARY 1976 , THAT IS TO SAY SOME TIME AFTER THE COUNCIL ' S DECISION IN MAY 1975 TO ABOLISH THE REFUNDS FOR GRITZ . ACCORDING TO THE EXPLANATIONS GIVEN BY THE APPLICANT , ITS FORMATION AS AN INDEPENDENT LEGAL PERSON WAS PART OF A REORGANIZATION CARRIED OUT BY THE GERMAN FIRM DGV ( THE APPLICANT IN CASE 241/78 ) WITH A VIEW TO MANUFACTURING MAIZE GRITZ FOR THE PRODUCTION OF ISOGLUCOSE . PENDING THE IMPLEMENTATION OF THAT PLAN , AND AFTER ITS SUBSEQUENT ABANDONMENT OWING TO THE INTRODUCTION OF A LEVY ON THE PRODUCTION OF ISOGLUCOSE , THE MAIZE GRITZ PRODUCED BY THE APPLICANT WAS SOLD TO THE BREWING INDUSTRY . IN THAT WAY THE APPLICANT WISHED TO REDUCE ITS LOSSES TO A LOWER LEVEL THAN THAT WHICH WOULD HAVE ARISEN FROM THE CLOSURE OF ITS PLANT . IN SUCH CIRCUMSTANCES THE DAMAGE ALLEGED BY THAT APPLICANT CANNOT BE SAID TO HAVE BEEN CAUSED BY THE ABOLITION OF THE REFUNDS FOR GRITZ AND THE COMMUNITY CANNOT BE REQUIRED TO MAKE GOOD THAT DAMAGE . THEREFORE ITS APPLICATION MUST BE DISMISSED AND THE APPLICANT MUST BE ORDERED TO PAY THE COSTS IN ACCORDANCE WITH ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE .
20 THE OTHER APPLICANTS SUBMITTED A NUMBER OF DOCUMENTS TO THE COURT AS PROOF OF THE QUANTITIES OF GRITZ FOR WHICH THEY CLAIM TO BE ENTITLED TO COMPENSATION AND OF THE AMOUNTS OF THE REFUNDS NOT PAID RESPECT OF THOSE QUANTITIES . HOWEVER , THE COURT IS NOT IN A POSITION AT THIS STAGE OF THE PROCEDURE TO GIVE A DECISION ON THE ACCURACY OF THOSE DATA . THEREFORE , IT IS NECESSARY TO LAY DOWN BY INTERLOCUTORY JUDGMENT THE CRITERIA WHEREBY THE COURT CONSIDERS THAT THE APPLICANTS MUST BE COMPENSATED , LEAVING THE AMOUNT OF THE COMPENSATION TO BE DETERMINED EITHER BY AGREEMENT BETWEEN THE PARTIES OR BY THE COURT IN THE ABSENCE OF SUCH AGREEMENT . THE CLAIM FOR INTEREST
21 THE APPLICANTS FURTHER CLAIM THAT THE COMMUNITY SHOULD BE ORDERED TO PAY INTEREST AT A RATE OF 6 % FROM DATES WHICH ARE SLIGHTLY EARLIER THAN THE DATES ON WHICH THE ACTIONS WERE BROUGHT , IT BEING ALLEGED THAT THE COMMUNITY ' S LIABILITY FOR THE UNPAID REFUNDS AROSE AT THOSE EARLIER DATES .
22 AS IT IS A QUESTION OF A CLAIM MADE IN RELATION TO THE NON-CONTRACTUAL LIABILITY OF THE COMMUNITY , PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 215 , IT MUST BE CONSIDERED IN THE LIGHT OF THE PRINCIPLES COMMON TO THE LEGAL SYSTEMS OF THE MEMBER STATES , TO WHICH THAT PROVISION REFERS . IT FOLLOWS THAT A CLAIM FOR INTEREST IS IN GENERAL ADMISSIBLE . TAKING INTO ACCOUNT THE CRITERIA FOR THE ASSESSMENT OF DAMAGES LAID DOWN BY THE COURT , THE OBLIGATION TO PAY INTEREST ARISES ON THE DATE OF THIS JUDGMENT , IN THAT IT ESTABLISHES THE OBLIGATION TO MAKE GOOD THE DAMAGE . THE RATE OF INTEREST WHICH IT IS PROPER TO APPLY IS 6 % .