JUDGMENT OF 27. 1. 1982 — JOINED CASES 256, 257, 265 AND 267/80 AND 5/81 BIRRA TTÜHRER v COUNCIL AND COMMISSION

In Joined Cases 256, 257, 265 and 267/80 and 5/81

THE COURT composed of: J. Menens de Wilmars, President, G. Bosco, A. Touffait and O. Due (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, T. Koopmans, U. Everling, A. Chloros and F. Grévisse, Judges, Advocate General: F. Capotorti 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

The commencement of the five-year period of limitation provided for by Article 43 of the Statute of the Court

Interruption of the five-year period of limitation

IV — Oral procedure

Decision

I —. Facts and written procedure

(a). Between 1 August 1975 and 18 October 1977 the first applicant, Birra Wahrer SpA, used for the manufacture of beer maize groats and broken rice bought directly from the producers who, by express agreement, assigned to it the right to receive the production refunds.

(b). The second applicant, Mangimi Niccolai SpA, produced maize groats intended for the brewing industry from 16 March 1976. Pursuant to Article 3 of Regulation No 665/75 of 4 March 1975, it received no refunds in respect of its production during the period to 18 October 1977.

(c). The third applicant, De Franceschi Marino & Figli SpA, produced maize groats intended for the brewing industry from 1 August 1975 of 18 October 1977. Pursuant to Article 3 of Regulation No 665/75 of 4 March 1975, it received no refunds in respect of its production in the period to 19 October 1977. On 8 November 1979, following the judgments of the Court of Justice of 19 October 1977 and 4 October 1977, in the abovementioned cases, it applied for payment of the refunds to the Italian Ministries of Finance and Agriculture and, by telex message of 27 March 1980 and also by registered letter of 8 May 1980, submitted a similar application to the Commission of the European Communities.

(d). During the period from 1 September 1975 to 18 October 1977, the fourth applicant, Riseria Modenese Sri produced and sold to various breweries broken rice intended for the production of beer.

(e). The fifth applicant, Riserie Angelo and Giacomo Roncaia, produced broken rice intended for the manufacture of beer during the period from 1 September 1975 to 18 October 1977. Until 19 October 1977 it was refused the refunds which it should have received in respect of its production on the basis of Article 1 of Regulation No 668/75 of 4 March 1975.

II —. Conclusions of the parties

1. The applicants claim that the Court should:

2. The Council and the Commission, raising the objection pursuant to Article 91 of the Rules of Procedure of the Court of Justice that the applicants' actions are time-barred under Article 43 of the Statute of the Court, contend that the Court should:

III —. Submissions and arguments of the parties

(a). the limitation period of five years applies to proceedings brought against the Community in relation to non-contractual liability, and

(b). the dies a quo is expressly defined as that of the occurrence of the event giving rise to such proceedings.

(a). In the case of maize meal intended for the manufacture of beer as the result of:

(b). In the case of broken rice used by the brewing industry:

(a). Birra Wührer SpA was not entitled to claim the refunds until it had purchased the maize meal and broken rice and had obtained from the producers of the products an assignment of the refunds themselves. In that regard the applicant in Case 256/80 observes that although it is not a producer but merely a user of gritz and broken rice, it is entitled to take the place of the producers of the products which it has bought by obtaining an assignment of right to the refund by express agreement. The company states that this practice is governed under Iulian law by Article 1201 of the Italian Codice Civile (and with virtually identical provisions by Article 1250 of the French and Belgian Codes Civils) and maintains that the question is dealt with at least in a similar manner in the legal systems of the other Member States. Its application could not therefore have been submitted until after 1 August and 1 September 1975. Before that date Birra Wührer SpA, had no right to take action, even in respect of foreseeable damage, because everything was dependent on the conduct of a third party (sale of products and assignment of the right to the refunds). Birra Wührer SpA in fact claims in respect of the year 1975 the refund for a single purchase of 297.50 quintals of broken rice invoiced on 4 September 1975.

(b). Mangimi Niccolai SpA did not start to produce maize meal intended for the manufacture of beer until 16 March 1976. It attributes the damage which it suffered to the fact that it did not receive the refunds to which it was entitled, but only in respect of the period from 16 March 1976, the date on which it started to produce maize groats intended for the brewing industry. It was therefore not until that date that the period of limitation could begin to run because it was only then (and not before) that the applicant was unlawfully deprived of a right which ought not to have been denied to it. It was only then that the applicant was able to demand the refund, for which it applied well before the expiry of the five-year period of limitation.

(e). De Franceschi Marino & Figli SpA claims payment of the refunds to which it was entitled as from December 1975 for the production of maize meal sold to the company Dreher, a beer manufacturer, on the basis of invoices dated 1. 12 and 15 December 1975. It attributes the damage which it suffered to the fact that it did not receive the refunds to which it was entitled, but only in respect of its actual production of maize groats intended for the brewing industry during the period from 1 August 1975 to 4 October 1979. It was therefore not until that date that the period of limitation could begin to run because it was only then that the applicant was unlawfully deprived of a right which ought not to have been denied to it.

(d). Riseria Modenese Sri claims payment of the refunds for broken rice sold to the company Dreher and to the company Peroni, beer manufacturers, in November and December 1975 on the basis of invoices dated 25 November, and 5, 12 and 24 December 1975.

(e). Riserie Angelo e Giacomo Roncata produced broken rice intended for the manufacture of beer from 1 September 1977.

IV —. Oral procedure

1. By application lodged at the Court Registry on 24 November 1980, 28 November 1980, 1 December 1980 and 12 February 1981, the applicants brought actions under Article 178 and the second paragraph of Article 215 of the EEC Treaty for compensation for damage caused to them by Regulations (EEC) Nos 665 and 668/75 of the Council of 4 March 1975 abolishing the production refunds in respect of maize groats and meal and broken rice and as a result of the failure to restore the refunds in respect of the period from 1 August or 1 September 1975 to 19 October 1977, the last-mentioned date being the retroactive date of the application of Council Regulations (EEC) Nos 1125 and 1127/78 of 22 May 1978, which reintroduced the abovementioned system of production refunds.

2. The Council and the Commission have raised a preliminary objection under Article 91 of the Rules of Procedure founded on the five-year period of limitation under Article 43 of the Protocol on the Statute of the Court (EEC) (hereinafter referred to as the Statute of the Court) according to which 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 and 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. The Court has decided to give judgment on the preliminary objection without considering the substance of the cases.

3. The defendants plead that the actions are inadmissible because the applicants were out of time in submitting to the Commission their applications for payment of the refunds in respect of the period from 1 August or 1 September 1975 to 19 October 1977. Those applications were submitted to the Commission on 18 August 1980 by Birra Wührer SpA (Case 256/80), on 15 March 1980 by Mangimi Niccolai SpA (Case 257/80), on 27 March 1980 by De Franceschi Marino & Figli SpA (Case 265/80), on 8 August 1980 by Riseria Modenese Srl (Case 267/80) and on 2 September 1980 by Riserie Angelo e Giacomo Roncaia (Case 5/81).

4. The defendants contend that the commencement of the period of limitation laid down by Article 43 of the Statute of the Court must be taken as being the moment when it becomes possible to institute proceedings in matters arising from liability and that, moreover, according to the case-law of the Court such proceedings may be instituted when the damage may be considered to be imminent and foreseeable with sufficient certainty even though it cannot be precisely quantified except as the result of assessment at a later stage.

5. According to the defendants the commencement of the five-year period of limitation must be 20 March 1975, the date of publication of Regulations Nos 665 and 668/75 of 4 March 1975, which the Court in its judgments of 19 October 1977 in Joined Cases 124/76 and 20/77 held to be invalid.

6. It follows, in the defendants' view, that the applicants could have brought their actions as from 20 March 1975 since the publication of the unlawful regulations which were at the origin of the damage sustained by the applicants may be considered as the event giving rise to the Community's liability and should therefore constitute the commencement of the five-year period of limitation laid down by Article 43 of the Statute of the Court.

7. According to the defendants the applications sent to the Commission could not interrupt the five-year period of limitation because they were submitted after the expiry of that period, whilst those sent to the Italian national authorities on 8 and 19 November 1979 did not interrupt the period because they were made to authorities which were not relevant within the meaning of Article 43 of the Statute of the Court and were not followed by proceedings instituted by the applicants in conformity with the conditions laid down in the second paragraph of Article 175 of the EEC Treaty.

8. The applicants' argument is essentially to the effect that the commencement of the five-year period of limitation in relation to matters arising from the non-contractual liability of the Community can only be the moment when, in cases such as the present, the damage has in fact become apparent, that is to say, the date on which the refunds, became payable as the result of transactions creating an entitlement to them.

9. As is apparent from Article 215 of the EEC Treaty and Article 43 of the Statute of the Court, the involvement of the non-contractual liability of the Community and the assertion of the right to compensation for damage suffered depend on the satisfaction of a number of requirements relating to the existence of an unlawful measure adopted by the Community institutions, actual damage and a causal relationship between them.

10. The period of limitation which applies to proceedings in matters arising from the non-contractual liability of the Community therefore cannot begin before all the requirements governing an obligation to provide compensation for damage are satisfied and in particular before the damage to be made good has materialized. Accordingly, since the situations concerned are those in which the liability of the Community has its origin in a legislative measure, the period of limitation cannot begin before the injurious effects of that measure have been produced, and consequently, in the circumstances of these cases, before the time at which the applicants after completing the transactions entitling them to the refunds, were bound to incur damage which was certain in character.

11. Accordingly, it may not be claimed, as against the applicants, that the period of limitation began before the date on which the injurious effects of the unlawful measures adopted by the Community were produced.

12. It follows from this, moreover, that the commencement of the period of limitation cannot be the date on which the unlawful measures adopted by the Community entered into force or, a fortiori, the date of their publication.

13. The preliminary objection raised by the Council and the Commission must therefore be dismissed.

On those grounds, THE COURT, by way of interlocutory decision, hereby:

1 Dismisses the objections;

2 Reserves the costs.