JUDGMENT OF 14. 7. 1967 — JOINED CASES 5, 7 AND 13 TO 24/66 KAMPFFMEYER v COMMISSION

In Joined Cases

THE COURT composed of: Ch. L. Hammes, President, A. Trabucchi and R. Monaco, Presidents of Chambers, L. Delvaux, R. Lecourt, A. M. Donner (Rapporteur) and W. Strauß, Judges, Advocate-General: J. Gand Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of the facts

II — Conclusions of the parties

III — Submissions of the parties

A — Admissibility

B — The substance of the case

(a) The alleged unlawful act or omission

The nature of the rule infringed

The wrongful act (das Verschulden)

(b) The causal link

(c) The concurrence of obligations to make reparation

(d) The amount of the damage

IV — Procedure

Grounds of judgment

Admissibility

The substance of the case

Costs

I —. Summary of the facts

II —. Conclusions of the parties

1. Order the defendant to pay:

2. Order the defendant to pay the costs of the proceedings.

III —. Submissions of the parties

A —. Admissibility

B —. The substance of the case

(a). The alleged unlawful act or omission

(b). The causal link

(c). The concurrence of obligations to make reparation

(d). The amount of the damage

I —. the alleged losses suffered in carrying out the said contracts of purchase (damnum emergens);

II —. the penalty paid on the repudiation of certain contracts.

I —. In respect of the losses suffered by the applicants, the losses resulting from the contracts of purchase concluded on 1 October 1963 were due to the improper conduct of the applicants themselves; the excessive quantity for which the import licences were requested on 1 October shows without any possible doubt that the importers knew on that day that a large gap had been opened in the levy system. The applicants acted without due consideration both in making contracts of purchase, in spite of this circumstance, before having received a favourable reply to their requests and in not providing for the possibility of cancellation should the licences, which had not yet been issued, be refused. They should have known that a situation such as that obtaining on 1 October 1963 was capable of giving rise to protective measures and they themselves should therefore bear the losses resulting from the cancellation and repudiation of the contracts of purchase made on 1 October.

II —. In respect of the alleged failure to make a profit, the defendant relies upon the principle claimed to be common to the laws of the Member States according to which no reparation can be claimed for the loss of benefits which are contrary to public policy. As the object of Regulation No 19 is to compensate for the difference between prices ruling in importing countries (see Articles 2, 3 and 10 as well as the fifth and ninth recitals in the preamble), the fact of importing with a zero levy cereals which could be purchased in the exporting country at a price considerably lower than the threshold price of the importing country is incompatible with the principles of the said regulation. It is even less in accordance with the said principles that the importers should obtain from this situation benefits of 11 or 15 DM per metric ton, because these benefits far exceed the margin which Regulation No 19 regards as normal, namely the margin which should be taken into account at the time of fixing of the threshold price in accordance with Article 4 and which amounts in Germany to 3 DM per metric ton.

IV —. Procedure

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to Article 215 of the Treaty establishing the European Economic Community; Having regard to Regulation No 19 of the Council of the said Community dated 4 April 1962, especially Article 22; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT hereby:

I By way of interlocutory judgment:

1 Orders the applicants in Cases 5/66, 7/66, 13/66, 14/66, 15/66, 16/66, 19/66 and 21/66 to send to the Court the decisions given by the relevant courts of the Federal Republic of Germany concerning their actions for damages against the Federal Republic;

2 Orders the said applicants to send to the Court evidence in writing that they have exhausted all methods of recourse, both administrative and judicial, for obtaining reimbursement of the sums improperly paid to the Treasury of the Federal Republic of Germany by way of levy;

3 Orders the said applicants to produce before 31 December 1967 proof that on 1 October 1963 they made contracts for the purchase of maize on the French market;

4 In respect of the production of proof required under paragraph 3 of this judgment, orders the said cases to be disjoined;

5 Orders that the costs be reserved;

II By way of final judgment:

6 Dismisses Applications 17/66, 18/66, 20/66, 22/66, 23/66 and 24/66;

7 Orders the parties to bear their own costs.