JUDGMENT OF 8. 6. 1977 — CASE 97/76 MERKUR v COMMISSION
In Case 97/76
THE COURT composed of: H. Kutscher, President, A. M. Donner and P. Pescatore, Presidents of Chambers, J. Mertens de Wilmars, M. Sørensen, Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco and A. Touffait, Judges, Advocate-General: H. Mayras Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and issues
I — Facts and procedure
II — Conclusions of the parties
III — Submissions and arguments of the parties
— As regards the first condition the transactions in question must be irrevocably undertaken.
— As regards the second condition: the alteration to the particular legal situation by the injurious action must be unforeseeable.
— As regards the third condition: the loss must be inevitable.
— As regards the fourth condition: absence of an overriding matter of public interest which justifies the adoption of the measure in dispute.
— As regards the fifth and sixth conditions: the action which causes the loss must have been taken without warning and with immediate effect and without providing for any transitional measure which would permit prudent traders either to avoid the loss or to be compensated for it
— As regards the first condition:
— As regards the second condition:
— As regards the third condition:
— As regards the fourth condition:
— As regards the fifth and sixth conditions:
— As regards the first condition:
— As regards the second and third conditions:
— As regards the fourth condition:
— As regards the fifth and sixth conditions:
IV — Oral procedure
Decision
Costs
I —. Facts and procedure
1. Merkur Außenhandel GmbH (hereinafter referred to as Merkur concluded contracts with Korn- og Foderstof Kompagniet A.S., Aarhus (hereinafter referred to as KFK), on 18 and 27 February 1976 and with Spurnen Ltd., London, (hereinafter referred to as Spurnen) on 25 February and 12 April 1976, for the sale to those companies of a compound made up of 90 % of tapioca and 10 % of molasses (application, page 11). Contracts of sale concerning the same product were concluded with the Dansk Landbrougs Grovvareselskab, Axelborg (hereinafter referred to as DLG) on 9 March and 20 May 1976.
2. By a letter dated 12 March 1976 (application, Annex 8), Merkur applied for a notice of tariff classification in respect of the compounds referred to in the aforementioned contracts. By letter of 28 April 1976 the Oberfinanzdirektion (Chief Finance Office) Hamburg issued such a notice, showing that the goods in question fell within subheading 23.07 B I (c) 1 of the Common Customs Tariff (application, Annexes 8 and 9).
3. At the time in question the products falling within subheading 23.07 B I (c) 1 were subject to a system of monetary and accession compensatory amounts.
4. By Regulation No 1497/76 of 23 June 1976 (OJ 1976, No L 167 p. 27), the Commission provided in particular (in Article 1) that for products falling within subheading 23.07 B I (c) 1, containing more than 50 % by weight of products falling within heading No 07.06 of the Common Customs Tariff, the accession compensatory amounts or monetary compensatory amounts shall be those applicable to products falling within subheading 07.06 A of the Common Customs Tariff. Heading No 07.06 refers to nutritious roots and tubers with a high starch content, the majority of which are listed under subheading 07.06 A.
5. Having learnt from the journal Ernährungsdienst (application, Annex 10) of 19 June 1976 that the Commission was intending to adopt a regulation placing products containing more than 50 % by weight of tapioca under the same tariff classification as that applying to tapioca, Merkur requested the Federal Minister of Food, Agriculture and Forestry (application, Annex 11) to take steps to postpone the date of entry into force of the proposed regulation. As, however, the regulation had been adopted and published in the Official Journal of the European Communities on 26 June 1976 Merkur requested the Commission in a telex message sent on 5 July 1976 to postpone for at least ten days the date of its entry into force, which had been fixed (by Article 3) at the fifteenth day following its publication in the Official Journal. As that request was rejected (by a telex message of 8 July 1976) Merkur requested the Commission by letter of 2 September 1976 (application, Annex 26) to acknowledge that it was entitled to receive compensation until 30 September 1976 in respect of the considerable loss which it suffered as a result of being prevented by the entry into force of Regulation No 1497/76 from performing in full the aforementioned contracts of sale concluded between February and May 1976 for the export to the United Kingdom and Denmark of products falling within subheading 23.07 B I (c) 1.
6. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without holding any preparatory inquiry. Furthermore, it decided, as a first step, to hear the submissions of the parties on the questions concerning the existence of possible liability on the part of the Commission and to reserve, if necessary, to a later stage of the oral procedure consideration of the questions concerning the extent of the damage.
II —. Conclusions of the parties
1. Order the defendant to pay the applicant DM 168185.20, together with interest at 8 % as from the date on which the application was lodged;
2. Order the defendant to pay the costs.
III —. Submissions and arguments of the parties
—. As regards the first condition the transactions in question must be irrevocably undertaken.
—. As regards the second condition: the alteration to the particular legal situation by the injurious action must be unforeseeable.
—. As regards the third condition: the loss must be inevitable.
—. As regards the fourth condition: absence of an overriding matter of public interest which justifies the adoption of the measure in dispute.
—. As regards the fifth and sixth conditions: the action which causes the loss must have been taken without warning and with immediate effect and without providing for any transitional measure which would permit prudent traders either to avoid the loss or to be compensated for it
—. As regards the first condition:
—. As regards the second condition:
—. As regards the third condition:
—. As regards the fourth condition:
—. As regards the fifth and sixth conditions:
—. As regards the first condition:
—. As regards the second and third conditions:
—. As regards the fourth condition:
—. As regards the fifth and sixth conditions:
IV —. Oral procedure
1. The application, which was lodged on 8 October 1976, seeks an order for the payment of damages by the European Economic Community in compensation for the injury which the applicant claims to have suffered as a result of Commission Regulation No 1497/76 of 23 June 1976, which came into force on 11 July 1976 (OJ 1976, No L 167, p. 27), the effect of which was to modify certain compensatory amounts.
2. In support of the application the applicant maintains that as a result of the modification it was prevented from performing in full contracts of sale, entered into before the entry into force of the regulation, for the delivery to two Danish companies and to one English company of products under tariff subheading 23.07 B I (c) 1 containing more than 50 % by weight of tapioca.
3. Article 1 of Regulation No 1497/76 provides that for products falling within subheading 23.07 B I (c) 1 … of the Common Customs Tariff, containing more than 50 % by weight of products falling within heading No 07.06 … thereof the accession compensatory amounts or monetary compensatory amounts shall be those applicable to products falling within subheading 07.06 A thereof.
4. As regards in particular the accession compensatory amounts applicable to trade with the United Kingdom, a system of advance-fixing had been introduced by the Community rules in force at that time for the products falling within subheading 23.07 B I (c) 1.
5. The system of compensatory amounts introduced by Regulation No 974/71 of the Council of 12 May 1971 (OJ, English Special Edition 1971 (I), p. 257) is intended principally to safeguard the level of prices in the Member States concerned against the disturbances which might be caused by monetary instability and might jeopardize a normal trend of business in agriculture.
6. It is clear that in this instance the regulation at issue did not take effect immediately and without warning, since its entry into force had been fixed for the fifteenth day after its publication in the Official Journal of the European Communities.
7. In the light of those circumstances the Commission cannot be said to have adopted the measure in dispute with immediate effect and without warning in violation of the principle of the protection of the legitimate expectation of the parties concerned.
8. In the present case the respect for existing contracts referred to by the applicant would amount to granting to the contracts concluded a guarantee equivalent to that which they normally obtain from fixing the compensatory amount in advance.
9. At all events, the adoption of transitional measures on the basis of the principle referred to by the applicant could only have been envisaged by the Commission if it appeared that the modification of the monetary compensatory amounts in question could not have been foreseen by a prudent trader.
10. In fact, as the product in dispute contains 90 % of tapioca and 10 % of molasses it could, even before the entry into force of Regulation No 1497/76, have been defined as having a high starch content and therefore have been classified under subheading 07.06 A, which refers to precisely that type of product.
11. The result of all the foregoing is that the conditions fixed for the entry into force of Regulation No 1497/76 do not amount to a flagrant violation of a superior rule of law for the protection of the individual sufficient to incur the liability of the Community under the second paragraph of Article 215 of the Treaty.
12. 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 pay the costs.