Opinion of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. The cases which form the subject of this opinion arise from actions seeking compensation for damage brought against the Council and the Commission under Article 178 of the EEC Treaty by a number of Italian undertakings which are producers of maize groats or broken rice intended for the brewing industry (also one of the applicants is a company which manufactures beer and acts as an assignee of the right to the production refund due to its supplier of maize groats and broken rice). The applicants claim that damage was sustained as a result of the abolition of production refunds for these two agricultural products during the period from August or September 1975 to 19 October 1977, It should be recalled in that regard that the refunds were abolished by Regulations (EEC) Nos 665 and 668/75 of the Council of 4 March 1975 — with effect from 1 August 1975 in the case of maize groats and 1 September 1975 in the case of broken rice — and that the Court by a judgment of 19 October 1977 in Joined Cases 124/76 and 20/77 Moulins et Huileries de Pont-à-Mousson and Société Coopérative Providence Agricole de la Champagne [1977] ECR 1795 held that the provision contained in Regulation No 665/75 which abolished the refund was incompatible with the principle of equality and that it left to the institutions the task of putting an end to the discrimination. Consequently, the Council, by Regulations (EEC) Nos 1125, 1126 and 1127/78 of 22 May 1978 (Official Journal 1978, L 142, p. 21 et seq.), provided for the reintroduction of the refunds in question but only with effect from the date of the judgment. The applicants claim compensation for the loss suffered during the period which elapsed between the adoption of the measures abolishing the refunds (or in three cases from a subsequent date) and the date on which Community aid was restored.

2. The provision which the Commission and the Council rely upon in support of their case is Article 43 of the Protocol on the Statute of the Court of Justice annexed to the EEC Treaty. The first sentence of that article provides as follows: Proceedings against the Community in matters arising from noncontractual liability shall be barred after a period of five years from the occurrence of the event giving rise thereto. Consequently, it is a question in this case of determining which event gave rise to the applications by the undertakings or more precisely which event gave rise to the non-contractual liability of the Community and enabled the injured parties to bring proceedings under Article 178 of the EEC Treaty. The defendant institutions take the view that that event was the publication of the two regulations which abolished the production refunds for maize groats and broken rice. The date on which the period of limitation started to run was therefore 20 March 1975. Since it is established that all the applications were lodged after 20 March 1980, they are time-barred. The applicants claim, however, that since non-contractual liability presupposes that damage has occurred, the date from which the limitation period started to run must be taken to be that on which the damage was sustained, that is to say, the date of failure to pay the refunds due to undertakings which had produced maize groats or broken rice.

3. I would observe first that in my opinion no argument to support the defendants' view can be deduced from the wording of Article 43 cited above. The defendants have sought to assign particular importance to the fact that the provision in question refers to the event which gives rise to the liability and not to the infliction of financial loss on the injured party. The event envisaged by Article 43 is therefore the occurrence which is the cause of the damage.

4. The Court's decisions on this point have not followed a consistent line. In a passage in the judgment of 14 December 1962 in Joined Cases 46 and 47/59 Meroni [1962] ECR 411 (see in particular p. 420) the view was accepted that the period of limitation laid down by Article 40 of the Statute of the Court of Justice of the ECSC could not start to run unless there was damage which was certain and finally quantifiable. That article corresponds exactly to Article 43 of the Protocol of the Statute of the Court of Justice of the EEC. However, in its judgment of 2 June 1976 in Joined Cases 56 and 60/74 Kampffmeyer [1976] ECR 711 the Court stated that 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 (paragraph 6 of the decision). In that case by applications lodged in July 1974 a number of German milling undertakings had sought a declaration that the Community was bound to make good the damage which they had suffered during the 1974/75 cereal marketing year — and therefore future damage — by reason of the rules on prices and aid relating to durum wheat contained in a group of regulations published between May and June 1974. The defendant institutions had objected that Community law recognized only an action to establish liability to make good damage which had actually been sustained. The Court rejected that objection and held that as soon as the Community rules in question were published and before they were put into effect the applicants were justified in bringing before the Court the question whether and to what extent these rules were such as to put them at a disadvantage in relation to their French competitors and if so whether these rules were for this reason contrary to the principle of equal treatment (paragraph 8 of the decision). Finally the judgment of 2 March 1977 in Case 44/76 Milch-, Fett- und Eier-Kontor GmbH [1977] ECR 393 confirmed that it was possible to apply for a declaration that the Community was non-contractually liable even for future damage provided that it was imminent and foreseeable with sufficient certainty even if the damage cannot yet be precisely assessed.

5. The point which it is essential to clarify in order to come to a decision on the question at issue concerns the identification of the wrongful act which in the applicants' view gives rise to the Community's liability. Is that act in fact merely the adoption of the measures abolishing the production refunds for maize groats and broken rice, that is to say, the adoption of the measures as distinct from their entry into force? The reply must be in the negative: if for any reason the measures had not entered into force, there would have been no wrongful act.

6. I may usefully make a number of other remarks appertaining to the nature of the wrongful act, in the form in which I believe that I have been able to identify it. A discriminatory state of affairs is not a momentary but a continuing wrong which endures and gradually produces harmful effects which become increasingly conspicuous. If my view is shared that the wrongful state of affairs in this case arose at the date on which Regulations Nos 665 and 668/75 entered into force, the result — as far as the date on which the period of limitation started to run is concerned — is the same as that arrived at by the applicants on the basis of the fact that the damage began to occur from the date on which the refunds could have been claimed under the system abolished by the measures. However, even accepting that assertion that the wrongful state of affairs first arose on the date on which the abovementioned regulations were adopted, that does not alter the fact that the situation remained wrongful until 19 October 1977, the date from which the refunds again became payable. The preclusion of actions for damages therefore took place progressively as in any case involving a continuing wrong, and only claims for any damage occasioned, as a result of the discriminatory state of affairs, in the period prior to the five years preceding the bringing of the action must be considered as time-barred.

7. Counsel for the Commission, in support of the thesis that the wrongful act in this case is of an isolated and not a continuing nature, put forward the view during the hearing that the damage consisted in the fall in value of the undertakings which occurred immediately following the publication of the measures abolishing the refunds. However, it seems to me that the nature of the wrongful act cannot be inferred from the alleged nature of the damage sustained by the undertakings: the reserve approach would be the more logical one. Even if it were considered that the wrongful act in question took the form of discrimination which arose as soon as the measures abolishing the refunds were adopted, it would in theory still be possible that the harmful effects of the undertakings (which could, moreover, be measured by calculating the effect which the failure to receive the expected refunds had on the value of the undertaking's assets. However, the point at issue is the admissibility of particular actions and it must not be forgotten, first that those actions were brought after the non-receipt of the refunds, owing to their abolition, had become an established fact, and secondly that the damage for which the applicants claim compensation is that occasioned by the abolition of and failure to restore the refunds for maize groats and broken rice during a specific period which has already elapsed. Consequently, I do not find the Commission's view at all convincing and remain persuaded that the original wrong consists in the discriminatory state of affairs which extended from the date on which the measures abolishing the refunds were applied until 19 October 1977, and the injurious effects of which were gradually felt as payment of the refunds continued to be refused.

8. In support of that thesis I would point to the anomalous consequences which have followed from the development of the opposite view. The applicant undertaking in Case 257/80 (Mangimi Niccolai) did not start producing groats and meal intended for the brewing industry until March 1976, that is to say, in a period subsequent both to the adoption and to the entry into force of the measures which abolished the refunds for that category of products. Nevertheless, the defendant institutions consider that even in that case the period of limitation began to run from the date on which Regulations Nos 665 and 668/75 were published. That amounts to a submission that the period from March 1975 to March 1976, during which the undertaking clearly had no right to claim compensation for damage connected with the discrimination against the producers of groats for the brewing industry, must also be included in the five-year period of limitation just as if it were merely a case of a person failing to exercise his right of action (unless it is held that the underuking concerned could bring an action for damages even before it began producing the goods which were subject to discrimination). In order to overcome that difficulty the Council relied on the judgment of this Court of 4 October 1979 in Joined Cases 241, 242 and 245 to 250/78 DGV, Deutsche Getreideverivertung und Rheinische Krafißitterwerke GmbH and Others [1979] ECR 3017; in paragraph 19 of the decision, the Court considers the case of an undertaking which, was founded and commenced production of gritz in February 1976, that is to say some months after the adoption of the measure abolishing the refunds for gritz. The Court held in that case that the damage suffered by the undertaking was not indemnifiable and it appears that the Council proposes the same solution in this case. However, in the abovementioned case the Court was concerned not with the ending of the period for bringing an action for damages — which is the only matter to be considered at this stage — but with a quite different point of substantive law, namely the existence of liability on the part of the Community. It seems to me, therefore, that the reference to that case is inapposite.

9. Let us now turn to the facts of the individual cases with which the Court is concerned to determine whether, and if so within what limits, the individual actions were brought within the period required and are therefore admissible. I would observe that for that purpose account must be taken of the dates on which the claims seeking compensation for damage were submitted to the Commission. Indeed, Article 43 of the Protocol on the Statute of the Court of Justice of the EEC, after laying down the five-year period of limitation considered above provides that the period of limitation shall be interrupted if proceedings are instituted before the Court or if prior to such proceedings an application is made by the aggrieved party to the relevant institution of the Community. In the latter event the proceedings must be instituted within the period of two months provided for in Article 173 .... However, if that provision is applied literally, only claims for compensation under Article 215 of the EEC Treaty duly made against the Community authorities can have an interruptive effect. I do not in fact believe to be well-founded the view put forward by Counsel for the applicants that claims addressed to the national authorities also had interruptive effect because those authorities were bound to forward them (or did in fact forward them) to the Community authorities. In my view the national authorities, by transmitting claims for damages addressed to them in error to the Community authorities, are probably merely fulfilling an informative function (and not an obligatory one) within the scope of the cooperation established between the national and Community authorities in administrative matters. This is therefore something quite different from the rules governing the limitation of actions.

10. In conclusion I propose that the Court should:

1 Translated from the Italian