OPINION OF MR REISCHL — CASE 44/76 EIER-KONTOR v COUNCIL AND COMMISSION
Mr President,
Members of the Court,
There is not much to say about the facts of the case with which we are concerned today. They are largely known from the reference for a preliminary ruling in Case 125/75.
From that we know that the applicant in August and September 1970 entered into a pooling agreement with three other undertakings (whilst retaining its legal and economic independence) for the sale outside the Community of butter held by the German intervention agency. In August and September 1970 the applicant obtained the necessary export certificates fixing the refunds in advance as provided for in Regulation No 1100/68 of the Commission (JO L 184, p. 14). The certificates covered exports amounting to a total of 10000 tonnes for the North African countries of Algeria, Morocco and Tunisia in respect of which special refunds applied.
At the beginning of January 1971 the applicant entered into an agreement with the Belgian undertaking Corman, which was a member of the pool, for the sale of 2000 tonnes of butter with the condition that the goods were to be sent to Morocco. This was done in two shipments after the contract had been amended from fob to cif loaded on quay and the applicant had entered into the appropriate charter parties. The ships left the Community at the end of January and middle of February 1971 and arrived in Morocco on 1 and 21 February.
As regards the handling of the claims to refund by the Hauptzollamt Hamburg-Jonas, which dealt with the case, the applicant's claims to payment of the refund fixed in advance in respect of Morocco were at first allowed in respect of part of the goods at the beginning of February 1971. On the other hand difficulties immediately arose with regard to other claims to payments which in the applicant's view ought to have been made at the end of April at the latest. The Hauptzollamt was not satisfied with the documents produced by the applicant, from which it appeared only that the goods had reached the country to which they had been dispatched but sought proof that the goods had been marketed in Morocco. Since this proof was not forthcoming three notices of rejection were issued on 15 June 1972 refusing amounts of refund to a total of DM 1335900. About the same time the Hauptzollamt raised the question of the refund already paid out. Since the proof demanded by it was likewise not forthcoming it issued on 17 July 1972 and 10 October 1972 demands for repayment amounting to DM 823417.75.
Since the applicant took the view that for entitlement to the refund proof of the arrival of goods in the relevant country of destination was sufficient, and that the applicant had given such proof by means of certificates of unloading it brought proceedings in the Finanzgericht Hamburg (Hamburg Finance Court) with regard to the said five notices. One of these actions resulted in the reference for a preliminary ruling in Case 125/75, with which we are well acquainted. The Court of Justice decided that the attitude of the Hauptzollamt was correct. Granting of the refund depended on the actual import into the relevant country of destination; unloading was not sufficient and there had to be customs clearance into free circulation.
At the beginning of January 1976, that is, before the said reference for a preliminary ruling had been concluded, the applicant was concerned as to what would happen in the event of the proceedings going against it. It came to the conclusion that in that case the Community should compensate it because the Council and the Commission by the wording of the relevant texts and other statements had given the impression for a long time that proof of arrival in the relevant country of destination was sufficient basis for the claim to the refund differentiated according to country of destination. Since it feared that it would otherwise be out of time under Article 43 of the Statute of the Court of Justice of the EEC the applicant took the precaution of making known its claims to the Commission by a telex message sent on 16 January 1976.
Since it received no answer it brought an action before the Court of Justice on 17 May 1976.
To substantiate its case (I shall deal with the details later) it repeated the view already mentioned in relation to the attitude of the defendant institutions of the Community, the Council and Commission. If the institutions of the Community had clearly expressed in time what was contained in a 1974 regulation and was also declared to be correct in the preliminary ruling in Case 125/75, namely that the condition for payment of a refund differentiated according to countries of destination was customs clearance into free circulation, the applicant could have arranged the transactions in question so that the conditions of claim would have been fulfilled.
Accordingly it makes the claim first that the defendant should be ordered to pay it DM 1335900, that is, the amount of the refund which was refused it in the notices of 15 June 1972 together with interest from 1 May 1971 since the refund would have been paid out to it at the latest on 30 April 1971. In addition, since it has not yet satisfied the said demands for repayment, it claims that the defendant should be ordered to pay the relevant amount of DM 823417.75 to the Hauptzollamt Hamburg together with interest from 5 February 1971 since the Hauptzollamt can require such interest under the German regulation Ausfuhrerstattung EWG (Export Refund EEC) of 16 December 1974 (Bundesgesetzblatt Part I, p. 3555).
Further, on the basis that if the questions in issue here had been clearly resolved in time there would have been no dispute with the Hauptzollamt and in consequence the lawyers' fees, court and procedural costs would not have arisen, the applicant further claims that the defendant should be ordered to pay the said fees of DM 72922.96 together with interest at 4 % from the bringing of the action and the as yet unpaid court costs owed by the applicant of DM 28145.60 to the Gerichtskasse Hamburg and the likewise still unpaid procedural costs of DM 551.50 to the Hauptzollamt Hamburg-Jonas.
Having regard to the fact that it will not be possible to calculate the damage exactly before the national proceedings are concluded, the applicant claims a declaration that the defendants are obliged to compensate the applicant for all damage which the applicant has suffered or may yet suffer because from August 1970 to March 1971 it relied on the belief that payment of the full refunds fixed for exports to Morocco depended solely upon fulfilment of the condition that the butter had in fact arrived in Morocco and that proof of arrival was all that was needed. Alternatively the applicant claims a finding against the defendants on the question of liability.
In my opinion these claims should be considered as follows:
I —. First the objections to admissibility should be considered and, since it would also make consideration of the main claim unnecessary, the objection that the action is out of time.
1. In the first place objection was made to the fact that the claim was made against the European Communities, that is also against the European Atomic Energy Community and the European Coal and Steel Community.
2. Furthermore the Commission has doubts whether the application for a declaration as formulated in the statement of claim is admissible. It refers to the fact that the problem concerns two actual export transactions which have been completed long ago. Accordingly calculation of the damage must be possible and since an action for damages is involved there is no room for an action for a declaration.
3. Finally with regard to the claim by the two defendant institutions that the action is barred by lapse of time, Article 43 of the Statute of the Court of Justice of the EEC provides that proceedings against the Community 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. Moreover, Article 43 states, and this is important having regard to the telex message of 16 January 1976 sent by the applicant to the Commission, that the period of limitation shall be interrupted if an application is made by the aggrieved party to the relevant institution of the Community. In this event 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 apply where appropriate.
II — Substance
The claims which the applicant makes against the Council and the Commission are based, as already mentioned, mainly on the complaint that the defendants' statements between 1967 and 1971 have given the wrong impression, as shown by the reference for a preliminary ruling in Case 125/75, that it was sufficient to give entitlement to a differentiated refund if the goods physically reached the country of destination. The applicant made its arrangements accordingly. If the defendants had taken the trouble to specify the conditions for entitlement to the refund with sufficient clarity at the proper time, the applicant would have arranged its transactions so that it would have been entitled to a refund. In this case there would also have been no dispute with the Hauptzollamt Hamburg-Jonas and the lawyers' fees, court and procedural costs connected therewith would not have arisen. In addition the applicant complains that the Commission did not make known which undertakings came into consideration as the control and surveillance companies within the meaning of Article 8 of Regulation No 1041/67 (OJ, English Special Edition, 1967, p. 323) and it did not see to it that the competent German authorities published such a list, assuming it to have been their responsibility. Accordingly the applicant used a firm in Tangier whose certificate of unloading was not accepted by the Hauptzollamt Hamburg-Jonas as sufficient evidence.
1. In considering this statement we must first inquire whether it can be regarded as proven that if the transactions had been arranged differently, namely subject to a condition that there should be marketing in Morocco, the applicant would have been entitled to receive the refund applicable for Morocco.
2. The decisive point on which the claims are founded is, as we have seen, the allegation that the applicant was convinced, as a result of statements of the defendant institutions of the Community, that proof of arrival was sufficient for entitlement to a refund, that is, that it acted bona fide.
3. I shall not however leave it there, but consider whether statements of the defendants, as the applicant maintains, were capable of misleading exporters into thinking that they had only to adduce proof of arrival under the refund rules.
4. In conclusion there remain however two observations. One relates to the complaint that the Commission neglected to publish a list of recognized control and surveillance companies within the meaning of Article 8 of Regulation No 1041/67 or to insist on its publication by the responsible German authorities. The other relates to a procedural issue raised by the applicant under Article 91 of the Rules of Procedure.
III —. In view of all the foregoing I propose that the action brought by Milch-, Fett- und Eier-Kontor GmbH against the European Economic Community represented by the Council and the Commission should be rejected as unfounded. The applicant should be ordered to bear the costs of the action with the exception of the costs of the procedural issue which the Commission should bear.
1 Translated from the German.