JUDGMENT OF 2. 3. 1977 - CASE 44/76 EIER-KONTOR v COUNCIL AND COMMISSION
In Case 44/76
THE COURT composed of: H. Kutscher, President, P. Pescatore, President of Chamber, J. Mertens de Wilmars, M. Sørensen, Lord Mackenzie Stuart, A. O'Keeffe and G. Bosco, Judges, Advocate-General: G. Reischl Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
I — Facts and written procedure
II — Conclusions of the parties
III — Submissions and arguments of the parties
(a) Facts
(b) Admissibility
(c) Substance
(a) The event giving rise to the damage
(b) The causal connexion between the behaviour of the institution and the loss claimed
(c) Unlawfulness
(d) Damage
Law
Admissibility and the objection that the application is out of time
Substance
Costs
I —. Facts and written procedure
II —. Conclusions of the parties
1. (a) order the defendants to pay the applicant the sum of DM 1355900 together with interest from 1 May 1971 at the rate mentioned in Annex 2 for the respective periods therein mentioned; (b) order the defendants to discharge the applicant from the claims for repayment of a sum of DM 823417.75 made by the Hauptzollamt (Principal Customs Office) Hamburg-Jonas together with interest at 2 % over the appropriate discount rate of the German Federal Bank from 5 February 1971, and to pay those sums to the said Hauptzollamt Hamburg-Jonas on behalf of the applicant; (c) (aa) order the defendants to pay the applicant the sum of DM 72922.96 together with 4 % interest from the date of commencement of these proceedings; (bb) order the defendants to discharge the applicant from claims against it by the Free Hanseatic City of Hamburg, the cashier of the court, in the sum of DM 28145.60 in respect of court fees and by paying this sum on behalf of the applicant to the said cashier upon demand being made by the Finanzgericht Hamburg; (cc) order the defendants to discharge the applicant from claims by the Hauptzollamt Hamburg-Jonas for legal fees amounting to DM 551.50 by paying this sum on behalf of the applicant to the Hauptzollamt Hamburg-Jonas upon its demanding the payment thereof.
2. (a) declare declare that the defendants are obliged to compensate the applicant for all damage which the applicant has suffered or will suffer because from August 1970 to March 1971 it relied on the fact that payment of the full refunds, which were fixed for exports to Morocco, in accordance with Section II (a) of the Annex to Regulation No 1420/70 of the Commission, depends solely upon fulfilment of the condition that the butter has in fact arrived in Morocco and that this be proved by a control copy (as proof of the exportation) together with a copy of a transport document (a duplicate of the bill of lading) or by a certificate of unloading (both as proof of arrival in Morocco); (b) alternatively, order the defendants to compensate the applicant for all the damage which it has suffered through relying upon the fact that payment of the full refunds, which were fixed for exports to Morocco, in accordance with Section II (a) of the Annex to Regulation No 1420/70 of the Commission depends solely upon fulfilment of the conditions that the butter has in fact arrived in Morocco and that this be proved by a control copy (as proof of the exportation) together with a copy of a transport document (a duplicate of the bill of lading) or by a certificate of unloading (both as proof of arrival in Morocco); (c) order the defendants to bear the costs.
1. Dismiss the application;
2. Order the applicant to bear the costs.
1. Dismiss the application;
2. Order the applicant to bear the costs.
III —. Submissions and arguments of the parties
(a). Facts
(b). Admissibility
(c). Substance
(a). The event giving rise to the damage
(b). The causal connexion between the behaviour of the institution and the loss claimed
(c). Unlawfulness
(d). Damage
1. The present application for compensation, which was lodged on 12 May 1976, must be regarded as directed against the European Economic Community represented by the Council and the Commission pursuant to the second paragraph of Article 215 of the EEC Treaty.
2. On 2 September 1970 the applicant obtained export certificates for Morocco, Algeria or Tunisia fixing in advance refunds for certain quantities of butter obtained from the German intervention agency, for the marketing of which it had entered into a pooling agreement (the butter pool).
3. The competent customs office initially paid the amount of the refund fixed in advance for part of the said exportation but subsequently rejected the claims for payment of the refunds for the remainder and demanded proof of marketing in Morocco.
4. These events have given rise to a number of cases before the Finanzgericht Hamburg, one of which led to a request for a preliminary ruling (judgment of 2 June 1976 in Case 125/75 [1976] ECR 771).
5. In this application the applicant claims damages for the injury occasioned it by the behaviour of the Commission which, through its communications from 1967 onwards, led the defendant to assume that payment of the refunds fixed in advance depended solely upon the condition of the goods' having actually arrived in the territory of Morocco.
6. The main claim is for:
7. The Commission disputes the admissibility of the requests for a declaration on the grounds that the nature of any damage suffered, relating exclusively to the 2000'tonnes of butter in dispute, must be known with certainty and that if the requests relate to other exports the application is lacking in precision.
8. Article 215 of the Treaty does not prevent the Court from being asked to declare the Community liable for imminent damage foreseeable with sufficient certainty even if the damage cannot yet be precisely assessed.
9. The Council and the Commission maintain that pursuant to Article 43 of the Protocol on the Statute of the Court of Justice of the EEC claims for compensation arising out of any acts whatever from the years 1967 to 1970 were out of time at the latest by the end of 1975.
10. Before considering whether this objection is well founded it is appropriate to examine whether the Community is liable.
11. The main complaint which the applicant puts forward against the defendants amounts to claiming that Regulation No 876/68 of the Council of 28 June 1968 laying down general rules for granting export refunds on milk and milk products and criteria for fixing the amount of such refunds (OJ, English Special Edition, 1968, (I), L 155, p. 234) and Regulation No 1041/67 of the Commission of 21 December 1967 on detailed rules for the application of export refunds on products subject to a single price-system (OJ, English Special Edition, 1967, L 314, p. 323) make payment of the variable refund depend solely on the requirement of proof of arrival in the territory of destination.
12. The reason why the refund varies according to the destination of the products is, according to the fourth recital of the preamble to Regulation No 876/68 that markets in the countries of destination are at [varying] distances from Community markets and special conditions apply to imports in certain countries of destination.
13. In the abovementioned judgment of 2 June 1976 the Court ruled that if it sufficed for the goods simply to be unloaded to qualify for payment of the refund at a higher rate, the raison d'être of the system of varying the refund would be disregarded and abuse would be made possible to the detriment of Community interests and it is therefore necessary for the goods to have been cleared through customs and put into free circulation at the destination.
14. Accordingly it cannot be alleged that the Council failed to establish clearly the legal situation regarding variable refunds in Regulation No 876/68 of the Council and this fact alone means that the proceedings against the Council are unfounded.
15. Pursuant to Article 4 of Regulation No 1041/67 of the Commission Member States may require, as a condition for payment of the refund, proof not only that the product has left the geographical territory of the Community, but also that the product in question has been imported into a third country ….
16. It is clear from the file that, even before 1971, the competent German customs office had often required proof of marketing in the country of destination — a requirement which was justified in particular by the need to avoid fraudulent practices in connexion with the refunds.
17. In those circumstances the proceedings against the Commission are also unfounded.
18. It is consequently unnecessary to consider further the objection put forward by the Council and the Commission to the effect that the application is out of time.
19. Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
On those grounds, THE COURT hereby:
1 Dismisses the application;
2 Orders the applicant to bear all the costs.