JUDGMENT OF 1. 4. 1982 — CASE 11/81 DÜRBECK v COMMISSION

In Case 11/81

THE COURT (First Chamber) composed of: G. Bosco, President of Chamber, A. O'Keeffe and T. Koopmans, Judges, Advocate General: G. Reischl Registrar: J. A. Pompe, Deputy Registrar

gives the following.

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

IV — Oral Procedure

Decision

Breach of the principle of nondiscrimination

Breach of the principle of the protection of legitimate expectation

Possible liability of the Commission as a result of the adoption of lawful measures

Costs

I —. Facts and written procedure

II —. Conclusions of the parties

1. Order the défendent to pay the applicant 506850 US dollars, with interest at 6% from the commencement of the proceedings;

2. Declare that the defendant is obliged to compensate the applicant for all further damage (not yet ascertainable) which it will suffer as a result of the introduction of the disputed protective measures;

3. Order the defendant to pay the costs.

1 (b). Find that the defendant is bound to pay the amount of damages referred to in 1 (a) when the applicant accepts such liability or is the subject of a court order to that affect.

1. Dismiss the action as inadmissible and in any event unfounded;

2. Order the applicant to pay the costs.

III —. Submissions and arguments of the parties

1. Lack of legal basis for the conclusion of agreements on voluntary restraint;

2. Breach of the provisions of Article 29 of Regulation (EEC) No 1035/72 in conjunction with Articles 1, 2 and 3 of Regulation (EEC) No 2707/72;

3. Breach of the principle of the protection of legitimate expectation;

4. Breach of the provisions of Article 37 of Regulation (EEC) No 1035/72 in conjunction with Articles 39 and 110 of the EEC Treaty;

5. Breach of the special principle of nondiscrimination contained in Article 40 (3) and the general principle of nondiscrimination laid down in the EEC Treaty.

(a). Supplier countries of the southern hemisphere other than Chile to which the Commission had proposed in 1979 voluntary restrictions on exports of dessert apples to the Community had forecast higher quantities than they could in fact supply in order to be able to claim those quantities in future;

(b). The Commission assessed the situation on the market in dessert apples according to criteria which did not comply with the provisions on the adoption of protective measures inasmuch as it took into account produce not qualifying for intervention and thus not marketable (in Dürbeck's view some 70 % of the 1978 production) and produce qualifying for intervention but not marketable as dessert apples and thus not competing with fresh apples from the southern hemisphere;

(c). The Commission wrongly assessed the quantity of marketable dessert apples still in storage when the protective measure was adopted, that is to say on 5 April 1979, since for technical reasons the stocking of apples in ordinary or cold storage could not be extended (save in the case of controlled atmosphere warehouses) beyond the end of February and beginning of March in each year;

(d). The wholesale price of European dessen apples tended to rise continually as from January 1979;

(e). In 1980, when Community production was over seven million tonnes, Chile alone exported some 80600 tonnes of dessert apples to the Community, which did not constitute a threat to the Common Market.

IV —. Oral Procedure

1. By application lodged at the Court Registry on 21 January 1981 the undertaking Anton Dürbeck (hereinafter referred to as Dürbeck), whose registered office is in Frankfurt am Main, brought an action under the second paragraph of Article 215 of the EEC Treaty for compensation for damage which it considered it had suffered or would suffer as a result of protective measures applicable to the importation of dessert apples originating from Chile adopted by Commission Regulation No 687/79 of 5 April 1979 (Official Journal, L 86, p. 18) as amended by Commission Regulations Nos 797/79 of 23 April 1979 (Official Journal, L 101, p. 7) and 1152/79 of 12 June 1979 (Official Journal, L 144, p. 13).

2. In support of its action Dürbeck submits that Regulation No 687/79, by which the protective measures were adopted, and Regulations Nos 797/79 and 1152/79, in so far as they did not contain transitional provisions of which the applicant in particular might have taken advantage, were unlawful for the following reasons :

3. On 5 May 1981 in Case 112/80 the Court ruled, in reply to a preliminary question put to it by the Hessisches Finanzgericht [Finance Court, Hesse] on the validity of the regulations, that: Consideration of the question raised has disclosed no factor of such a kind as to affect the validity of Commission Regulations Nos 687/79, 797/79 and 1152/79.

4. At the hearing on 19 November 1981 Dürbeck stated that in view of the judgment given by the Court in Case 112/80 it was abandoning its submission in Case 11/81 that Regulations Nos 687/79, 797/79 and 1152/79 were invalid. It nevertheless maintained its claim for compensation, arguing that some of the submissions pleaded in its application, in particular the submissions based on breach of the principles of nondiscrimination and the protection of legitimate expectation, could be relied upon even without challenging the validity of the aforementioned regulations. It also put forward a fresh submission relating to the possibility of holding the Community liable even for lawful measures.

5. In these circumstances it is necessary first of all to determine whether the submissions which the applicant states it is pursuing in fact correspond to the submissions made in its application or whether they are indeed fresh submissions raised in the course of the proceedings, which, to be accepted, must satisfy the conditions laid down by Article 42 (2) of the Rules of Procedure. It is also necessary to emphasize that any submission which amounts to challenging the validity of Regulations Nos 687/79, 797/79 and 1152/79 for reasons identical to those which the Court has already considered and dismissed in its judgment of 5 May 1981 must be rejected.

6. The applicant claims that the finding in paragraphs 52 to 54 of the judgment of 5 May 1981 that Regulations Nos 797/79 and 1152/79 were designed solely to adjust the application of the protective measures to goods already in transit to the Community within the meaning of Article 3(3) of Regulation No 2707/72 is based partly on a factual error because it is in fact well known that the goods allowed to be imported pursuant to Regulation No 1152/79 were not in transit to the Community until after 12 April 1979, by which date, according to Regulation No 797/79, the dessen apples ought to have left Chile.

7. In this respect, Dürbeck stresses that by telex message of 10 April 1979 it asked the Commission for authorization to import before 10 or 15 May 1979 some 2000 tonnes of Chilean dessert apples which were ready to be shipped and the Commission, the same day, refused, saying that the goods referred to in the applicant's telex message could not be regarded as goods in transit to the Community.

8. The abovementioned submission was included in the application and is therefore admissible. Moreover, although it amounts in substance to challenging Regulation No 1152/79 as discriminatory, it is based on a factor which was not taken into account in Case 112/80. It is right therefore to consider the submission in the present action.

9. The Commission has rightly observed that the treatment of Diirbeck is not discriminatory. It explained at the hearing that the Chilean apples shipped after 12 April 1979 had first of all been held up in the customs warehouses of a Member State and their importation was subsequently authorized only on objective grounds not connected with the identity of the undertakings concerned after it had been found that part of the apples already imported would be re-exported outside the Community. The small additional quantity of apples which it thus became possible to import could not reasonably have been shared among a large number of firms and it accordingly appeared reasonable to give preference to goods which had already reached a Community port.

10. The solution adopted by the Commission does not exceed the limits of the discretion which it enjoys in the performance of the tasks entrusted to it by Regulation No 1035/72 of the Council on the common organization of the market in fruit and vegetables.

11. In those circumstances Regulation No 1152/79 cannot be regarded as discriminatory and the submission must accordingly be rejected.

12. Diirbeck submits that the Commission was in breach of the principle of the protection of legitimate expectation by neglecting to inform it that a certain quantity of apples might still be imported in the event of its subsequently being found that quantities of apples already imported were not intended for the Community market.

13. That claim does not correspond to that put forward in the application, which sought to show that the legitimate expectation of the applicant was disregarded by the Commission by the very adoption of the protective measures; it must therefore be regarded as a fresh submission.

14. Article 42(2) of the Rules of Procedure of the Court provides that: No fresh issue may be raised in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the written procedure. In the present case the applicant has put forward no fresh matter of law or fact within the meaning of the aforementioned provision. The submission is therefore not admissible.

15. It must be observed that this issue was raised only during the oral procedure and is therefore also a fresh submission based on the judgment of the Court of 5 May 1981.

16. The judgment given by the Court in Case 112/80 cannot however be regarded as a factor allowing a fresh issue to be raised pursuant to the aforesaid Article 42(2).

17. For a new fact to be able to justify the raising of a fresh issue during the proceedings the fact must not have existed or must not have been known to the applicant when the action was commenced. Since measures adopted by the Community institutions are presumed to be valid until such time as the Court may declare them incompatible with the treaties establishing the Communities, the judgment given by the Court in Case 112/80 merely confirmed the law which was known to the applicant when it brought its action.

18. In those circumstances Dürbeck could have safeguarded its position only by pleading in the application claims in the alternative which it considered it would still be able to argue if the contested measures were declared lawful.

19. This submission must therefore also be declared inadmissible.

20. Article 69(2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party's pleadings. In the present case the applicant has failed in its submissions and must be ordered to pay the costs.

On those grounds, THE COURT (First Chamber), hereby:

1 Dismisses the action as unfounded, so far as the submission relating to the breach of the principle of nondiscrimination is concerned;

2 Dismisses the action as inadmissible, so far as the applicant's other submissions are concerned;

3 Orders the applicant to pay the costs.