JUDGMENT OF 25.10.1972 — CASE 96/71 HAEGEMAN v COMMISSION
In Case 96/71
THE COURT, composed of: R. Lecourt, President, R. Monaco and P. Pescatore, Presidents of Chambers, A. M. Donner, A. Trabucchi (Rapporteur), J. Mertens de Wilmars and H. Kutscher, Judges, Advocate-General: H. Mayras Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts and Procedure
II — Conclusions of the parties
III — Submissions and arguments of the parties
1. Application for annulment
A — Admissibility
B — Substance of the case
First submission
Second submission
Arguments common to the two submissions
2. The claim for damages
A — Admissibility
B — The substance of the case
(a) First submission
(b) Second submission
The assessment of the damage
Grounds of judgment
Costs
I —. Facts and Procedure
II —. Conclusions of the parties
1. declare the application admissible in respect of both the claim for annulment and for damages;
2. rule that Regulations (EEC) No 1019/70 and No 2320/70 of the Commission and all other regulations of like effect are inapplicable to imports of Greek wines into the territory of the Belgo-Luxembourg Economic Union;
3. annul in consequence the decision of 15 October 1971 refusing to exempt the applicant from the countervailing charge; and order the refund of the countervailing charges wrongly exacted;
4. rule that by reason of the acts and omissions of the defendant the applicant has suffered exceptional damage the amount of which will be determined by the Court;
5. in any event order the defendant to bear the costs.
(1). dismiss the application for annulment as inadmissible;
(2). dismiss the claim for damages as inadmissible or in any event as unfounded;
(3). order the applicant to bear the costs.
III —. Submissions and arguments of the parties
1. Application for annulment
A —. Admissibility
(a). The letter of 15 October 1971 does not amount to a decision for it is without any legal effect. In this letter the Director-General for Agriculture merely justifies the existence and the scope of a regulation which the Commission had adopted.
(b). The application for annulment is in any case out of time for the letter of 15 October is only a confirmation of the letter of 27 September which in turn confirmed that of 9 August.
(c). If the application had to be regarded as being in fact directed against Regulation No 2700/70 of the Commission of 30 December 1970 fixing the counter vailing charges to be levied in the wine sector it would likewise be inadmissible, for the second paragraph of Article 173 of the Treaty does not permit individuals to contest the form and substance of a regulation such as the abovementioned regulation. Moreover, since the latter was published on 31 December 1970, the applicant's action is out of time in so far as it is directed against the regulation.
B —. Substance of the case
2. The claim for damages
A —. Admissibility
1. The application based on the noncontractual liability of the Commission by reason of the unlawful nature of the contested measure: from this point of view, the claim for damages is directed against the right person for the Commission is the author of this illegal measure and the author of the unlawful levy and the regulations determining the amount and particulars thereof.
2. The claim for damages is admissible whatever the outcome of the request for annulment, for the applicant claims not only a right to reimbursement of the charges levied but also that it has suffered damages justifying the award of compensation independently of the refund of these charges.
B —. The substance of the case
(a). First submission
(b). Second submission
1. The Haegeman undertaking is asking the Court to declare Regulation No 1019/70 (OJ, English Special Edition 1970(I), p. 294) and Regulation No 2320/70 (JO L 250) of the Commission and all other regulations of similar effect inapplicable to imports of Greek wine into the territory of the Belgo-Luxembourg Economic Union and thereby to annul the decision of 15 October 1971 refusing to exempt the applicant from the countervailing charge and to order the refund of the countervailing charges wrongly levied.
2. By letters dated 9 August, 27 September and 15 October 1971 the Commission refused to accede to the applicant's request for a refund of the levies which it claimed to have paid wrongly on its imports of Greek wine.
3. The application essentially seeks the annulment of this refusal and thereby the refund of the contested charges.
4. According to the applicant, the application of the countervailing charge introduced by Regulation No 816/70 of the Council (OJ English Special Edition 1970(I), p. 234) to Greek wines imported into the Belgo-Luxembourg Economic Union is incompatible with the Agreement of Association between the Community and Greece of 9 July 1961.
5. Under Article 6 of the Council Decision of 21 April 1970 on the replacement of financial contributions from Member States by the Communities' own resources (OJ, English Special Edition 1970(I), p. 224), adopted pursuant to Article 201 of the EEC Treaty, the Community's own resources shall be collected by Member States on behalf of the Community in accordance with national provisions imposed by law, regulation or administrative action and made available to the Commission.
6. Under Articles 1, 2 and 13 of Regulation No 2/71 of the Council of 2 January 1971 implementing the Decision of 21 April 1970 (OJ, English Special Edition 1971 (I), p. 3) the establishment of these resources and the control of their collection is primarily the responsibility of the competent departments or agencies of the Member States.
7. Disputes concerning the levying on individuals of the charges and levies referred to by this provision must be resolved, applying Community law, by the national authorities and following the practices laid down by the law of the Member States.
8. Issues, therefore, which are raised during such a procedure as to the interpretation and validity of regulations establishing the Communities' own resources must be brought before the national courts which have at their disposal the procedure under Article 177 of the Treaty in order to ensure the uniform application of Community law.
9. The countervailing charge in question is part of the own resources referred to in Article 6 of the Council Decision of 21 April 1970.
10. It is therefore for the competent national authorities to rule on claims for the refund of that charge.
11. The applicant's claim for a refund should therefore have been made to those authorities.
12. In these circumstances the Commission ’s refusal of the applicant's request is not an act capable of being the subject of an application for annulment within the meaning of Article 173 of the Treaty.
13. The application for annulment is therefore inadmissible.
14. The applicant maintains further that by reason of the defendant's behaviour it has suffered exceptional damage as a result of loss of profit, unforeseen financial outlay and losses on existing contracts.
15. The question of the possible liability of the Community is in the first place linked with that of the legality of the levying of the charge in question.
16. It has just been found that, in the context of the relationship between individuals and the taxation authority which has levied the charge in dispute, the latter question comes under the jurisdiction of the national courts.
17. Accordingly, at the present stage the claim for compensation for possible damage must be dismissed.
18. Under Article 69(2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
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 the Treaty establishing the European Economic Community, especially Article 173 and the second paragraph of Article 215; Having regard to Article 6 of the Council Decision of 21 April 1970 on the replacement of financial contributions from Member States by the Communities' own resources; Having regard to Regulation No 816/70 of the Council; Having regard to Regulation (EEC) Nos 1019/70 and 2320/70 of the Commission; 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:
1 Dismisses the application for annulment and the claim for damages;
2 Orders the applicant to bear the costs.