JUDGMENT OF 27. 4. 1978 — CASE 90/77 STIMMING v COMMISSION

In Case 90/77

THE COURT composed of: H. Kutscher, President, M. Sørensen and G. Bosco (Presidents of Chambers), A. M. Donner, J. Mertens de Wilmars, P. Pecatore, Lord Mackenzie Stuart, A. O'Keeffe and A. Touffait, Judges, Advocate General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and issues

I — Facts and written procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

Admissibility

Substance of the case

IV — Oral procedure

Decision

Costs

I —. Facts and written procedure

II —. Conclusions of the parties

1. Declare that the defendant is required to guarantee performance of the contract concluded by the applicant on 15 February 1977 by way of compensation for the damage which it has caused;

2. Alternatively, declare that the defendant is required to compensate the applicant for the damage arising out of the failure to perform the contract of 15 February 1977;

3. Order the defendant to pay the costs.

1. Declare that the defendant is required, in order to compensate for the damage which it has caused, to authorize the importation free of the levy, of the quantity of marinated meat specified in the contract of 15 February 1977, by adopting a decision ordering the Federal Republic of Germany to admit the quantity of marinated meat at issue into free circulation free of the levy.

2. Alternatively,

1. Dismiss the primary claim as inadmissible;

2. Dismiss the claim in the alternative as inadmissible as to part and unfounded as to the whole;

3. Order the applicant to pay the costs.

III —. Submissions and arguments of the parties

IV —. Oral procedure

1. By an application lodged at the Court Registry on 21 July 1977, the applicant brought before the Court an action against the Commission for compensation on the basis of Articles 178 and 215 of the Treaty.

2. Since they fell within the new tariff heading 16.02 B III (b) 1 (aa), the products forming the subject-matter of the aforesaid contract of 15 February 1977 became liable to the amended system of levies.

3. The Commission, the defendant to the action, contends that the primary claim should be dismissed as inadmissible and that the claim in the alternative should be dismissed as inadmissible as to part and unfounded as to the whole.

4. As the legal basis of the primary claim and of the alternative claims is the same, the question whether the action is well founded should be considered first.

5. The first point to be considered in relation to the question whether the action is well founded is whether there is a causal nexus between the damage alleged and the conduct of the Commission.

6. Although the wording of Article 7 of Regulation No 425/77 expressly refers not to difficulties which the implementation of the new system might cause for those concerned but rather to difficulties of an administrative nature which might be encountered by the authorities responsible for such implementation, the wording is couched in terms broad enough to enable the Commission if necessary to adopt measures designed to protect the legitimate expectation of traders inasmuch as the amendment introduced is such as to jeopardize it.

7. Moreover the Commission was entitled to take the view that both the division of the old tariff subheading 16.02 B III(b)1 into two new subheadings and the application of the levy system to products falling within the first of those subheadings would not be detrimental to the legitimate expectation of traders.

8. The applicant has also mentioned an official ruling as to classification which was issued in 1975 under German legislation by the competent German authority to the effect that the goods in question did fall within the old subheading 16.02 B III (b) 1 and has alleged that it acted in reliance on that official ruling.

9. However it emerges from the applicant's statements at the hearing that it was able to obtain that clearance into free circulation only owing to an amendment of the ruling concerned dated 13 October 1976 stating that the goods came under the above-mentioned exceptions laid down in Regulation No 76/76.

10. It follows from the foregoing that the Commission was entitled to take the view that because of the prior adoption of Article 5 of Regulation No 3117/76, it was not necessary when Regulation No 425/77 entered into force to adopt any further transitional measures under Article 7 thereof in order to protect the legitimate expectation of traders.

11. The applicant also criticizes the Commission for having acted illegally and for having failed to fulfil its obligations inasmuch as (a) the charging of levies and corresponding monetary compensatory amounts on uncooked prepared beef and veal goes against the rate of customs duty bound at 26 % under the General Agreement on Tariffs and Trade (GATT), and (b) the levy and the monetary compensatory amount are so excessive that they infringe the principles of Articles 39 and 110 of the Treaty as well as the principles of proportionality and of non-discrimination.

12. The defendant considers this criticism to be misdirected, as the breaches alleged are the result of Regulation No 425/77, which is an aa of the Council and thus of another Community institution.

13. As regards the allegedly excessive amount of the levies, the point of reference is the basic levy applicable to cattle, determined by reference to the difference between the guide price and the free-at-frontier offer price.

14. The defendant's arguments have not been refuted by the applicant to the extent required by law.

15. Accordingly the application must be dismissed in its entirety, and it is not necessary to consider whether every head of claim is admissible.

16. Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs if they have been asked for in the successful party's pleading.

On those grounds, THE COURT hereby:

1 Dismisses the application.

2 Orders the applicant to pay the costs.