Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. The Court has been asked to give a ruling on an application for damages against the Council and the Commission brought by an undertaking which processes cereals and complains that it has not received refunds for the production of maize gritz for approximately three months in 1977. The action is one of a series of cases all of which have the same subject-matter. In that context, this Court has already affirmed the non-contractual liability of the Community and defined certain aspects thereof in several judgments (see, in general, the judgments, of like content, of 4 October 1979 in Case 238/78 Ireks-Arkadyv Council and Commission [1979] ECR 2955; Joined Cases 241, 242 and 245 to 250/78 DGV and Others 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 on the particular points to which I have referred, see, for example, the judgment of 27 January 1982 in Joined Cases 256, 257, 265 and 268/80 and 5/81 Birra Wührer and Others v Council and Commission [1982] ECR 85, concerning the period of limitation; the judgment of 19 May 1982 in Joined Cases 64 and 113, 167 and 239/78, 27, 28 and 45/79 Dumortier and Others v Council, [1982] ECR 1733, on the point in time to be taken for the purpose of quantifying the damage).

2. The facts may be summarized as follows. Pauls Agriculture Limited is a company incorporated under English law and has its registered office in Ipswich, in the United Kingdom. Since the turn of the century, it has produced maize gritz for use in the brewing industry. By letter of 3 July 1981, the company claimed from the Council of the European Communities payment of production refunds in respect of 6857 tonnes of gritz, which were produced in the period from 1 August to 18 October 1977. The sum claimed amounted to 59039 units of account, approximately equivalent to UKL 32874 (cf. the table attached to that letter, which appears in an annex to the application). However, the Council rejected the claim by letter of 17 July 1981, considering that it had been submitted out of time, namely five years after the publication in the Official Journal of the regulation which abolished refunds for gritz. At the same time, the Council noted that the production in respect of which the refunds were claimed had been commenced after the abolition of such refunds, which occurred in March 1975. On that ground, too, therefore, the applicant could not establish any claim.

3. Through its Counsel the applicant expressly abandoned the first of those claims — which, I repeat, was its primary one — in the course of the oral proceedings. The thema decidendi of the present case may therefore be confined to the alternative claim which is for compensation, for the applicant's losses arising from the failure to pay the refunds.

4. I refer in particular to the argument which is based on the period of limitation for obtaining damages. I would recall in that respect that according to the first sentence of Article 43 of the Protocol on the Statute of the Court of Justice of the European Economic Community, proceedings against the Community in matters arising from non-contractual liability shall be barred after a period of five years from the occurrence of the event giving rise thereto.

5. I turn now to the objections of substance raised by the defendants in their written pleadings. The first is founded on the so-called passing on to customers of the higher costs with which the undertakings were faced when the Community refunds to which they were entitled were abolished. The Council and the Commission rely primarily on a general principle of liability which cannot be disputed, namely the rule according to which compensation is only payable in respect of losses actually sustained. On the basis of that premise the defendants maintain that, in the present case, the applicant must establish that it did not pass on the losses resulting from the nonpayment of the refunds in the prices charged to its own customers. If such a transfer had in fact taken place, the loss would have been borne by the customers and not by the producer. In other words, only by furnishing documentary evidence that there was no passing on can it be proved that there is actual damage and therefore entitlement to appropriate compensation.

6. But the defendant institutions rely on a second argument based on the interpretation of Regulation (EEC) No 2727/75 of the Council of 29 October 1575 (Official Journal 1975, L 281, p. 1) and Commission Regulation (EEC) No 1570/78 of 4 July 1978 (Official Journal 1978, L 185, p. 22). The first concerns the common organization of the market in cereals; the second lays down detailed rules for the implementation of Regulation (EEC) No 2742/75 which relates to production refunds for starch products.

7. I now turn to the date to which reference must be made for the purpose of determining the rate of conversion from units of account to pounds sterling. It is well known that refunds are currently expressed in European units of account; on the other hand, as the applicant is based in the United Kingdom, the payments — and therefore the compensation for damage as well — are to be made in the national currency.

8. I now turn to the question of the default interest. In its reply of 25 May 1982, the applicant maintains that the defendant institutions should be ordered to pay it the interest on the sum awarded as damages as from the time when it should have received the refunds. Pauls Agriculture Limited adds that such interest should be paid at the commercial rates normally applied in the place where it carried out its activities during the months in which the refunds were not paid.

9. In view of all the foregoing considerations, I propose that the Court give an interlocutory judgment on the application which was submitted on 21 September 1981 by Pauls Agriculture Limited against the Commission and the Council and that it should:

1 Translated from the Italian.