Opinion of Mr advocate-general Gand

Mr President,

Members of the Court,

The fourteen applications which have been made to you by the Kampffmeyer company and by other German cereal importers are the sequel to your judgment of 1 July 1965 which, on the application of the Toepfer company, annulled the decision of the Commission of the EEC dated 3 October 1963, authorizing the Federal Republic to keep in force the protective measures taken by it on the previous 1 October for the importation of maize originating in France.

Drawing the conclusions which that judgment appears to them to involve, the applicants, who all had the applications for import licences which they had requested on 1 October refused by the competent German agency, ask you to order the Commission to make good the injury caused to them by the illegal decision, which according to their conclusions amounts to almost four million DM.

The importance of the judgment which you are called upon to give is not confined solely to the amount of the sums in dispute. It applies above all to a question of principle in respect of which for the first time — if one excepts your judgment in the Plaumann case (15 July 1963, Rec. 1963, p. 197)—you have to deal with the interpretation of the ambiguous provisions — no doubt intentionally ambiguous — of the second paragraph of Article 215 of the Treaty of Rome concerning the non-contractual liability of the Community. The question comes before you in circumstances even more delicate since the conduct of the Commission complained of overlaps closely the conduct of the Federal Republic which alone has benefited financially from the disputed transactions and whose liability the applicants are seeking to establish before the courts of that country. Although it is for you under the combined provisions of Article 178 and the second paragraph of Article 215 of the Treaty to rule on the liability of the Community and although your jurisdiction stops there, you can hardly exercise it without putting the actions of the Federal Government more or less in question.

Your judgment in the Toepfer case ana the report of the hearing relieves me from labouring the circumstances of law and of fact in which the present proceedings were initiated. We should merely recall that the whole machinery for the common organization of the market in cereals, established by Regulation No 19 of the Council, is based upon a levy system which co-ordinates prices in trade between the Member States and takes into account the difference between the free-at-frontier price of the exporting country and the threshold price of the importing country.

The threshold price is fixed annually by the importing State and the free-at-frontier price is in principle fixed every week by the Commission, on the basis of information provided by the exporting State. There is, however, no fixing of prices except when at the date in question this latter price, being lower than the threshold price, must lead to a levy.

The levy is calculated by the importing State, which collects it and keeps the proceeds. You know that in the Federal Republic it is the Einfuhr- und Vorratsstelle für Getreide und Futtermittel which is entrusted with putting the rules into operation, and especially with displaying posters showing the rates of levy and with the issue of import certificates — commonly called licences — which are valid for four months.

The levy collected is that which is applicable on the day of importation. Nevertheless, since Regulation No 31/63 (Official Journal No 59, p. 1225), importers of maize originating in Member States may ask to have the rate of levy applied which relates to the day on which the licence was applied for, subject to certain adjustments. But, since the market price, as the statement of reasons shows, does not generally alter in the same manner at the end of one marketing year and at the beginning of the following marketing year, this option is not open, in respect of maize for which the marketing year commences on 1 October, for imports made during the months of October, November and December.

The levy machinery replaces all the systems by which the Member States could previously take action on their market; if imports cause or threaten to cause serious disturbances to that market which might endanger the objectives laid down in Article 39 of the Treaty, Article 22 of Regulation No 19 empowers the State concerned to take the necessary protective measures which it does not otherwise describe but which may go as far as closing the frontier.

We know what happened. At the time of its decision of 27 September 1963, which was valid as from 1 October, the Commission did not fix a price, relying on information provided by the O.N.I.C., the competent French organization, showing a free-at-frontier price higher than the German threshold price. Consequently on 1 October the Einfuhr- und Vorratsstelle posted a rate of levy of 0.00 DM. On the same day it received requests for import licences for January 1964 at this previously determined rate of 0.00 DM for an amount of 126000 metric tons and certain of the applicants immediately made contracts for the purchase of French maize. Being concerned at this influx of applications, the German administration started by withdrawing the table concerning the rates of levy, and then suspended as from 1 October the grant of import licences for maize originating in Member States and third countries. That decision, taken on the basis of Article 22 of Regulation No 19, was immediately notified to the Commission.

The Commission for its own part adopted two measures. By a decision of 1 October 1963 it fixed, as from the following day, a free-at-frontier price of 422 francs being thus considerably less than the threshold prices for October 1963 and January 1964 which varied from 420 to 434 DM. Then, by a decision of 3 October 1963 addressed to the Federal Government it authorized the latter to maintain the suspension of the issue of import licences for maize up to and including 4 October.

As to the licences requested by the applicants, they were refused on 3 October by the Einfuhr- und Vorratsstelle.

From this sprang twofold litigation which is continuing side by side at both Community and national levels and which has dealt successively with the legality of the measures taken by the various authorities and the liability incurred by them in respect of those measures. In fact, although the Toepfer company obtained from you the annulment of the decision of the Commission of 3 October on the ground that the basic conditions laid down in Article 22 were not fulfilled, that company and the other applicants obtained a judgment from the German administrative court that the refusal on the same day of their requests for licences was illegal, because the formalities to which the legislation of the Federal Republic subjects the taking of protective measures were not observed.

And, as well as asking you to order the Community to make good the damage caused by the validation by the Commission of the protective measures, the German civil court has an action pending before it for damages against both the Federal Republic and the Einfuhr- und Vorratsstelle. As you know, the Landgericht of Bonn is waiting until you have decided upon the liability of the Community before it gives judgment.

I

Before embarking upon the substance of the case, you must decide upon the question of admissibility from the point of view of the periods of limitation for certain applications — more precisely Applications 5/66, 7/66 and 14 to 21/66. Prior to the institution of proceedings before you, the underakings concerned made applications for compensation to the Commission, which were received by the latter on various dates between 1 and 14 October 1965. After sending an interim reply on 28 October the Commission rejected these applications as unfounded on 2 March 1966, namely more than four months after having had the matter referred to it. As to the applications to the Court, they were lodged either before the reception of this rejection (19 February in Case 5/66, 28 February in Case 7/66), or thereafter (29 April in Cases 14 to 21/66), but in any case more than four months — increased by an extension of time-limits on account of distance — after the lodging of the administrative complaint.

Here we are confronted with Article 43 of the Statute of the Court of Justice, which reproduces mutatis mutandis Article 40 of the Statute of the Court of Justice of the ECSC. This article provides that proceedings in matters arising from non-contractual liability shall be barred after a period of five years from the occurrence of the event giving rise thereto; its admissibility does not depend on any prior complaint to the institution. But it continues as follows: The period of limitation shall be interrupted if proceedings are instituted before the Court or if prior to such proceedings an application is made by the aggrieved party to the relevant institution of the Community. In the latter event [that is to say, when there is a prior application] the proceedings must be instituted within the period of two months provided for in Article 173; the provisions of the second paragraph of Article 175 shall apply where appropriate.

If the provision which I have just quoted has general scope and in fact lays down periods of limitation, then the disputed applications are out of time. In fact, in the absence of any response within two months after the making of the complaints, time began to run in respect of the period of two months provided for in the second paragraph of Article 175 and it was only after the expiration of that period that the applications were lodged. This is so, even if the extension of the period by six days by reason of distance is taken into account, as this adds only to the period of limitation properly so-called and cannot increase the period within which the institution concerned is obliged to define its position.

Ihe applicants maintain, it is true, that they do not consider themselves to be in the situation provided for in Article 43 for the following reason. Whilst the French version of this article mentions the demande préalable (if prior to … proceedings an application is made) the German version refers to the victim who seinen Anspruch geltend macht; this expression implies that not only are the reasons for the claim for damages to be given but also the exact figure of those damages, which has not been done except by the applicant in Case 5/66. That argument is not very convincing. You accept that applications to the Court do not show from the outset the amount of the damages claimed (Plaumann, 15 July 1963, Rec. 1963, p. 224); and it is not possible to see how one should be stricter in respect of a prior application to an institution. Furthermore, it happens — and such is the case in the present instance — that the dispute might bear not upon the amount but upon the principle of compensation; a complaint, even without figures and even if it is directed towards obtaining an amicable solution, therefore constitutes a prior application within the meaning of Article 43.

The fact remains that the disputed provision may appear as being drafted in unusual terms and its strict interpretation as being unfortunate. It penalizes those who apply to the institution concerned as soon as damage occurs, thus depriving them of a part of the time which the beginning of Article 43 grants them for claiming their rights. It is unusual, moreover, to describe that which has the effect of shortening and not of prolonging the period of limitation as an interruption. Lastly there is not to my knowledge any analogous provision in the law of any Member States. Since the Agent of the Commission referred to French law in his pleadings, I must state specifically that that law includes no such provisions. Under that law an application for compensation is subject to a prior application to the administration and its failure to reply for four months is equivalent to an implied decision of rejection and allows the matter to be brought before the court; but, as opposed to applications in respect of ultra vires acts, the person concerned is not barred from instituting proceedings until two months after he has been notified of an express decision of rejection (Law of 7 June 1956, fifth paragraph of Article 1).

And the Commission, which raises no objection to the applications, itself interprets the final provision of Article 43 as governing the length of an interruption which prolongs the period of limitatation of five years which is laid down in the first sentence of the article, and which may in no event be shortened. In other words, it refers to the case where, just before the period of limitation expires, the applicant makes a prior application to the administration: the periods provided for in Articles 173 and 175 are added to the normal period of five years in order to prolong the duration of the period of limitation. I fully realize that such a construction amounts to quite a bold interpretation; its expedient nature and the fact that it is maintained by the defendant itself enables me to suggest it to you and to regard the applications as admissible.

In the event of your not accepting this proposal, it remains to be considered whether the letter of 2 March 1966, which expressly but belatedly rejected the administrative applications, can start time to run afresh in respect of a new period of limitation. For my part I strongly doubt it because it is limited simply to confirming a refusal already given.

II

1. The applications which have been made to you are based on the second paragraph of Article 215 of the Treaty which provides that in the case of non-contractual liability the Community shall, in accordance with the general principles common to the law of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties. This wording is clearly less explicit than that of Article 40 of the ECSC Treaty, which links the concept of reparation to that of a wrongful act or omission. It is particularly so to the extent to which it refers to common general principles, whilst the laws of the Member States in respect of the liability of public authorities are far from being identical. It is sufficient to recall that, depending on the country, this liability is distinguished by the application or the transposition in the case of public authorities of the rules of private law, and is brought into play before the courts; in France on the contrary different rules of jurisdiction and of substantive law are applied, because it is the administrative courts which have developed an independent and subtle concept of administrative liability, based in general upon a wrongful act or omission of the public service and, exceptionally, on risk. In truth the differences bear perhaps more on the legal technique employed than on the results which follow in practice. The principle of the liability of the administration is recognized in all the States — it is at least a general common principle — and in different ways the sphere of this liability tends to increase everywhere.

2. First, the fact complained of, which is the decision of 3 October 1963 by which the Commission authorized the German Government to maintain up to and including 4 October the protective measures taken as from 1 October. You have held it to be illegal because no serious disturbance of the market such as is envisaged in Article 22 was to be feared.

3. In order that the Community should be liable it is not sufficient that the action of the Commission was wrongful, it is necessary that it should have been the cause of the damage; that is the intention of Article 215 which speaks of damage caused by the institutions. More exactly, it is necessary that there should have been a direct causal link between the action or decision in dispute and the alleged injury; that is what is required by the judgment in the Aciéries du Temple case (Rec. 1963, p. 603) within the framework of Article 40 of the ECSC Treaty, and the solution at which it arrives must be extended to the sphere with which we are concerned.

4. I come thus to the last question: the amount of damages for which compensation may be made. Let me say first of all that the diversity of the situations involved and the complexity of the files will not allow you to decide it immediately. It will be necessary for you to give an interlocutory decision and to appoint an expert. My observations thus have the purpose of dealing with the questions of principle which appear and to indicate the framework of his task.

1 Translated from the French.