JUDGMENT OF 30. 11. 1967 — CASE 30/66 BECHER v COMMISSION

In Case 30/66

THE COURT composed of: R. Lecourt, President, A. M. Donner, President of Chamber, (Rapporteur), A. Trabucchi, R. Monaco and J. Mertens de Wilmars, 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 — The illegal act committed

(a) The nature of the rule infringed

(b) 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

Costs

I —. Summary of the facts

II—. Conclusions of the parties

1. Order the defendant to pay to the applicant the sum of DM 1268567 plus interest at the rate of 4 % from the date of the institution of proceedings;

2. Order the defendant to pay the costs.

1. Order the Commission to pay to the applicant the sum of DM 1265221.01, together with default interest at the rate of 4 % from the date of the application;

2. Order the defendant to pay the costs.

—. dismiss the application as unfounded; and

—. order the applicant to pay the costs.

III —. Submissions of the parties

A —. The illegal act committed

(a). The nature of the rule infringed

(b). The wrongful act (das Verschulden)

B —. The causal link

C —. The concurrence of obligations to make reparation

D —. The amount of the damage

I —. (a) the amount paid by way of penalties on repudiation of certain contracts, (b) the alleged losses suffered in carrying out other contracts (damnum emergens);

II —. the loss of profit resulting from the failure to issue the licences applied for (lucrum cessans).

(a). The first concerns the losses suffered by the applicant. The defendant alleges that the losses resulting from the contracts of purchase concluded on 1 October 1963 were due to the improper conduct of the applicant itself; 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 applicant acted without due consideration in making contracts of purchase, in spite of this knowledge, before having received a favourable reply to his application or in making such contracts without providing for the possibility of cancellation should the licences, which had not yet been issued, be refused. It should have known that a situation such as that obtaining on 1 October 1963 was certain to give rise to protective measures and it should itself therefore bear the losses resulting from the cancellation and repudiation of the contracts of purchase made on 1 October. The defendant refers in this connexion to the judgment in Case 3/65 (Espérance-Longdoz) and the opinions in Joined Cases 9 and 12/60 (Vloeberghs) and in Joined Cases 19 and 20/60 and 2 and 3/61 (Fives — Lille — Cail).

(b). The second point raised by the defendant concerns the alleged failure to make a profit. It relies upon the principle, which it claims to be common to the laws on liability of the Member States, according to which no reparation can foe 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 exporting countries and those Tilling 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 26.33 or 23.41 DM per metric ton, because these benefits far exceed the margin for importers 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 by way of interlocutory judgment, hereby :

I Orders the applicant to send to the Court the decisions given by the relevant courts of the Federal Republic of Germany concerning its action for damages against the Federal Republic;

2 Orders the applicant to send to the Court evidence in writing that it has 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 applicant to produce before 31 March 1968 proof that on 1 October 1963 it made contracts for the purchase of maize on the French market;

4 Orders that the costs be reserved.