Opinion of Mr Advocate General Mancini
Mr President,
Members of the Court,
1. The Court is asked to rule upon a claim for compensation for damage brought against the European Economic Community by an undertaking which processes and deals in cereals and which complains that it has not received the export refunds applicable to the production of maize gritz in 1976 and 1977. This case forms part of a series of proceedings on the same subject-matter, in the context of which the Court has already delivered several judgments affirming the non-contractual liability of the Community (see the judgments, of like content, given on 4 October 1979 in Joined Cases 238/78 Ireks-Arkady v Council and Commission [1979] ECR 2955; Joined Cases 241, 242 and 245 to 250/78, DGV and Others (including the present applicant) v. Council and Commission [1979] ECR 3017; Joined Cases.261. and 262/78 Interquell Stärke-Chemie v Council and Commission [1979] ECR 3045; Joined Cases 64 and 113/76, 167 and 239/78, 27, 28 and 45/79, Dumortier and Others v Council [1979] ECR 3091), and defining several aspects of that liability (see for example the judgment of 27 January 1982 in Joined Cases 256, 257, 265, 267/80 and 5/81, Birra Wahrer and Others v Council and Commission [1982] ECR 85, dealing with limitation periods; and the judgment of 19 May 1982 in Joined Cases 64 and 113/76, 167 and 239/78, 27, 28 and 45/79 Dumortier and Others v Council [1982] ECR 1733 on the date to which reference must be made for the quantification of damages).
2. I will first examine the procedural aspects of the case. The Commission objects to the admissibility of the application and states that when it made its originating application, Contifex was not entitled to the claim against the Community. I repeat that in March 1978 that debt, which was at that stage merely speculative, was assigned by Contifex to Curavest. Well then, says the Commission, the action relates back to 10 November 1978 at which time, therefore, the applicant was seeking the enforcement of the right of a third party. Hence its lack of capacity to bring proceedings.
3. A second procedural problem arises from Contifex's pleading of 17 November 1981. In it the applicant company asks that the Community be ordered to compensate Curavest, the assignee of the claim, directly, and in response to that the Commission puts forward three different submissions in defence. In the first place it points out that according to the first sentence of Article 42 (2) of the Rules of Procedure No fresh issue may be raised in the course of proceedings unless it is based on matters of law or fact which come to light in the course of the written procedure, and the conclusion which it draws from this is logical. It observes that if the claim for the Community to be ordered to compensate a person other than the one in whose name the action has been brought were considered to be a fresh issue, that issue would be prohibited and thus inadmissible. In the present case the amendment of the application is based upon a state of affairs which existed from the commencement of the proceedings so the exception provided for by Article 42 is not applicable.
4. I now turn to the substance of the case. As we know, the Court is asked to decide whether the claim for compensation upheld in the interlocutory judgment of 4 October 1979 must be considered extinguished by way of setoff against the other and greater claim which the Commission makes against Contifex.
5. On the first question the Commission maintains that the abuse of the mechanism of the assignment to the detriment of one's own creditors falls within the scope óf non-contractual liability and thus within the ambit of Article 215 of the EEC Treaty. That proposition contains a grain of truth, but it must be more closely defined by reference to the features of the particular case. It is worth recalling that in this case the claim which is relevant to the determination of the law applicable to the validity (or to the effectiveness) of the assignment is that raised by way of set-off by the defendant and not that raised against it by-the applicant. We must ask ourselves (a) whether the assignment of the claim for compensation has jeopardized the recoverability of the debt relating to the recovery of the refunds which was assigned to the Commission by the German customs authorities and (b) whether, and if so under what conditions, this has a bearing upon the fate of the contract by which the claim for compensation was transferred. Now, in order to determine the law, Community or national, under which the validity (or effectiveness) of the contract is to be ascertained, it is necessary to establish whether the claim for the recovery of the refund which was paid wrongly or irregularly is subject to the Community system. I think that it has a Community basis and, consequently, that the grounds which invalidate an assignment are to be sought in the principles of the Community system. The Commission's argument must therefore be rectified in the light of these considerations.
6. It now remains to establish, bearing in mind, of course, the particular facts of this case, what are the common principles which, for the purpose of protecting creditors, limit recourse to disposals of assets and in particular to the assignment of claims.
7. Let us apply these principles to this case. As we shall see, an examination of the documents leads to the conclusion that, in assigning its own claim for compensation to Curavest, Contifex knew that it was compromising the interests of its creditors and in particular those of the German revenue authorities (later replaced by the Commission). Similar, if not identical, knowledge can be attributed to the assignee company.
8. All the facts and circumstances which I have so far described demonstrate beyond all possible doubt the scientia damni if not also the animus nocendi of Contifex. In assigning its own claim for compensation to Curavest it was knowingly compromising the interests of the German revenue authorities which, having discovered that it had been the victim of a fraud, would sooner or later have claimed back what it had unduly paid. Although both the validity and the amount of the claim were still uncertain, it still constituted the only significant asset owned by Contifex, if the sums paid to the 77 creditors who accepted the out-of-court arrangement are excluded (and it may be noted, as was pointed out by the representative of the Commission at the hearing, that it is likely that those sums consisted of the fraudulently obtained export refunds). Divesting itself of that claim — and thus, I repeat, of the only substantial asset on which it could count — therefore considerably reduced the solvency of Contifex. The revenue authorities could not fail to be adversely affected by this conduct.
9. I will now examine the position of Curavest, beginning with the loan which the assignment was intended to discharge. As I have already said, it was granted in August 1976 and amounted to HFL 900000. That is shown by an extract from the relevant contract, an extract which moreover — and this is the first shadow cast on the genuineness of the transaction — raises a number of questions. As the Council and Commission have pointed out, it is incomprehensible (and it has not been explained) why the contract was not produced in its entirety. Furthermore the date it was entered into has not been stated unequivocally: 25 August 1976 in the auditor's report on the accounts for 1977 and 24 September 1977 in the pleading lodged by the applicant on 28 October 1982.
10. Once this point is reached, it seems to me that the conclusion is inevitable. When it acquired the claim for compensation Curavest knew that the Community would have to pay the compensation without being able to raise the other claim by way of setoff. It was therefore an abusive assignment because it was carried out to defraud creditors; and in accordance with a general principle common to the Member States, stated in apicibus by the Court in the Ireks-Arkady judgment, that means that it is ineffective at least vis-à-vis the European Economic Community as the debtor under the transferred claim. From this it follows, inter alia, in so far as it still matters, that the request made by Contifex to amend the application by its reference to Curavest as the party entitled to the compensation (see paragraph 3 above) is redundant.
11. On the basis of the foregoing considerations, I propose that the Court, in giving judgment on the application lodged on 10 November 1978 by Contifex Getreideprodukte GmbH & Co. KG (i. L.), called DEKA since 13 January 1979, against the Council of the European Communities and the Commission of the European Communities, should declare that the compensation claimed by the applicant is extinguished by setoff and therefore dismiss the application.
1 Translated from the Italian.