JUDGMENT OF 5. 12. 1979 — JOINED CASES 116 AND 124/77 AMYLUM v COUNCIL AND COMMISSION

In Joined Cases 116/77 and 124/77,

THE COURT, composed of: H. Kutscher, President, A. O'Keeffe and A. Touffait (Presidents of Chambers), J. Menens de Wilmars, Lord Mackenzie Stuart, G. Bosco and T. Koopmans, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

1. The product at issue

2. Community legislation

3. The applications

(a) In Cases 116/77 and 143/77

(b) In Case 124/77

II — Conclusions of the parties

1. In Case 116/77

2. In Case 124/77

III — Submissions and arguments of the parties

A — In Case 116/77

1. Violation of the principle of non-discrimination

2. The discrimination against isoglucose producers as compared with sugar producers is contrary to the objectives set out in Article 39 of the Treaty

3. Infringement of the right to the free exercise of an industrial activity

4. Violation of the principle of proportionality

— Assessment of the damage

— Causal connexion between the wrongful legislation and the damage suffered

Facts

Economic context of the dispute

The legislative context

Law

The admissibility of the application

1. Lack of certainty of the damage alleged

2. Lack of directness of the damage

The substance of the question

1. Disregard of the objectives laid down in Article 39 (1) of the Treaty

2. Violation of the fundamental right of freedom to pursue an economic activity

3. Violation of the principle of nondiscrimination embodied in the second subparagraph of Article 40 (3) of the Treaty

4. Violation of the principle of proportionality

B — In Case 124/77

C — Defence of the Council in both cases

D — The replies in both Cases

— Case 116/77

Admissibility of the application

(a) Certainty of the damage alleged

(b) Directness of damage alleged

(c) Special character of the damage alleged

The merits of the application

1. Disregard of the objectives laid down in Article 39 (1) of the Treaty

2. Violation of the right of freedom to pursue a business activity

3. Violation of the principle of non-discrimination

4. Violation of the principle of proportionality

— Case 124/77

Facts

1. Isoglucose

(a) The role of isoglucose and the potential market for the product

(b) Production costs of isoglucose

2. Sugar

3. Alleged justification for the levy on the production of isoglucose

Law

1. The principle of proportionality

2. Objectives of the common agricultural policy

3. Damages

E — The Council's rejoinder relating to Joined Cases 116/77, 124/77 and 143/77

— Causal nexus

— Serious breach of a superior rule of law

1. Potential production of isoglucose and the extent to which that product may he substituted for sugar

2. The question of acquired rights to continuance of regulations

3. Infringement of Article 39 of the Treaty

4. The complaints of discrimination, disproportionality and misuse of powers

6. Violation of legal certainty by the absence of transitional measures

F — The Commission's rejoinder relating to the three cases

— Facts

1. Extent to which isoglucose may be substituted for sugar

2. Production costs

3. Raw materials

— Law

1. Violation of the principle of nondiscrimination

2. Violation of the principle of proportionality

IV — Questions put by the Court

First question (to the Council and the Commission):

The Council's answer

The Commission's answer

Second question (to the Council and the Commission):

The Council's answer

The Commission's answer

Third question (to the Council):

The Council's answer

Request for additional information addressed to the Commission

The Commission's answers

Points 1 and 3

Point 2

Point 4

Supplementary question put to the Commission

The Commission's answer

V — Further procedure and related events

A — Oral procedure

B — Requests submitted after the closure of the oral procedure

C — The Court's judgment of 25 October 1978 in Joined Cases 103 and 145/77

D — Resumption of the written procedure in Joined Cases 116, 124 and 143/77 and disjoinder of Case 143/77

E — Re-opening of the oral procedure

VI — Conclusions of the parties in Case 116/77

VII — Summary of the observations of the parties

A — In Case 116/77

1. The damage

2. The illegality of the act giving rise to the damage

(1) The breach of a superior rule of law for the protection of the individual

(2) The sufficiently serious nature of the breach of the superior rule of law

3. Abnormal damage

4. The causal connexion

5. The damage suffered by the applicant (Annex I to its observations)

(1) Loss of direct profit margin by reason of the replacement of sales of isoglucose by sales of alternative products

(2) Loss of margin owing to the reduction in grinding

— Commission's observations

1. Act giving rise to the damage

(a) The behaviour of the Community legislature

(b) Nature of the damage

2. The damage and the causal connexion

B — In Case 124/77

— Applicant's observations

1. The losses

(a) Lost factory production

(b) Lower alternative return

(c) Starch stockholding costs

(d) Higher unit cost owing to reduced isoglucose production

(e) Subsequent alternative investments

(f) Additional bank interest

(g) Loss of goodwill

(h) Improved purchasing terms

— Summary

2. The causal connexion between those losses and the actions of the Community

3. Liability of the Community

(a) Character of the infringement

(b) Effects of the infringement

4. Conclusion

— Observations of the Commission

1. Liability

2. Causal connexion

3. Losses

C — Observations of the Council relating to both cases

1. Introduction

2. Manifest and grave disregard of the limits on the exercise of powers.

As to Point (i)

As to Point (ii)

Economic impact of the levy of 5 units of account

3. Causal connexion

4. Alleged damage

VIII — Request from the Court for information from the applicant Tunnel Refineries Ltd. and the latter's reply

Answer

Answer

Answer

Answer

Answer

IX — Oral procedure

Decision

Costs

1 Since the investment was planned, the withdrawal of production restitution has reduced expected profit by £ 13.75 per tonne

3 Since the investment was planned, the withdrawal of production restitution has reduced expected profit by £13.75 per tonne.