61974J0074(01)

1 . EEC - NON-CONTRACTUAL LIABILITY - MONETARY MEASURES - COMPENSATORY AMOUNTS - REVOCATION - COMPENSATION - DAMAGE TO PARTY CONCERNED - MAKING GOOD - CONDITIONS - RE-EXPOSURE TO AND MATERIALIZATION OF AN EXCHANGE RISK - ABSENCE

( EEC TREATY , ARTICLE 215 ; REGULATION NO 189/72 )

2 . EEC - NON-CONTRACTUAL LIABILITY - COMPENSATION - DAMAGE TO PARTY CONCERNED - MAKING GOOD - BURDEN OF PROOF

1 . AN APPLICANT CANNOT BE REGARDED AS HAVING SUFFERED LOSS IF HE WAS NOT RE-EXPOSED TO ANY EXCHANGE RISK OR IF , ALTHOUGH IT EXISTED , SUCH A RISK DID NOT MATERIALIZE . IN CONSEQUENCE , WHERE THE APPLICANT HAS NOT PROVED THAT HE SUFFERED A LOSS WHICH THE COMMISSION IS OBLIGED TO MAKE GOOD , THE APPLICATION MUST BE DISMISSED .

2 . IT IS INCUMBENT UPON THE APPLICANT TO PROVE THAT IT WAS THE WAIVER OF INTEREST ON ARREARS WHICH IN FACT ENABLED HIM TO OBTAIN PAYMENT IN FRENCH FRANCS .

IN CASE 74/74

COMPTOIR NATIONAL TECHNIQUE AGRICOLE ( CNTA ) SA , PARIS , REPRESENTED BY JEAN-FRANCOIS PERICAUD , OF THE PARIS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J . WOLTER , 2 RUE GOETHE ,

APPLICANT ,

V COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , J . H . J . BOURGEOIS , ACTING AS AGENT , ASSISTED BY J . DELMOLY , OF THE LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , M . CERVINO , BATIMENT C . F . L ., PLACE DE LA GARE ,

DEFENDANT ,

APPLICATION FOR DAMAGES UNDER THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY

1 BY APPLICATION MADE ON 1 OCTOBER 1974 , THE APPLICANT SOUGHT AN ORDER THAT THE EUROPEAN ECONOMIC COMMUNITY MAKE GOOD THE DAMAGE WHICH IT CLAIMS TO HAVE SUFFERED AS A RESULT OF THE ABOLITION , BY REGULATION NO 189/72 OF THE COMMISSION OF 26 JANUARY 1972 ( JO L 24 OF 28 . 1 . 1972 , P . 25 ), OF THE COMPENSATORY AMOUNTS APPLICABLE TO COLZA AND RAPE SEED AND TO OILS EXTRACTED FROM THIS SEED .

2 BY INTERLOCUTORY JUDGMENT OF 14 MAY 1975 (( 1975 ) ECR 533 ), THE COURT RULED THAT THE COMMISSION MUST COMPENSATE THE APPLICANT FOR THE LOSS SUFFERED , BY REASON OF REGULATION NO 189/72 , IN THE EXECUTION OF EXPORT TRANSACTIONS FOR WHICH THE REFUNDS HAD BEEN FIXED BY THE CERTIFICATES OF 6 JANUARY 1972 .

3 THE COURT GAVE THE PARTIES A TIME-LIMIT WITHIN WHICH TO REACH AGREEMENT ON THE AMOUNT OF THE COMPENSATION .

4 AS THE PARTIES DID NOT REACH AGREEMENT , THE APPLICANT FORMULATED ITS CLAIM , WITH DETAILED FIGURES , IN A STATEMENT TO THE COURT ON 11 DECEMBER 1975 .

5 IN A SUPPLEMENTARY STATEMENT OF 15 DECEMBER 1975 , THE COMMISSION CONTENDED THAT THE DOCUMENTS PRODUCED BY THE APPLICANT SHOWED THAT THE LATTER HAD SUFFERED NO LOSS WITHIN THE MEANING OF THE INTERLOCUTORY JUDGMENT OF 14 MAY .

6 IT IS CLEAR FROM THAT JUDGMENT THAT THE LOSS TO BE COMPENSATED IS THAT WHICH THE UNFORESEEABLE ABOLITION OF COMPENSATORY AMOUNTS CAUSED TO THE APPLICANT , OWING TO THE FACT THAT , IN THE PERFORMANCE OF TRANSACTIONS IRREVOCABLY UNDERTAKEN BY IT IT WAS RE-EXPOSED TO THE EXCHANGE RISK AGAINST WHICH IT WAS ENTITLED TO CONSIDER ITSELF COVERED BY THE SYSTEM OF THESE AMOUNTS .

7 IT FOLLOWS THAT THE APPLICANT CANNOT BE REGARDED AS HAVING SUFFERED LOSS IF IT WAS NOT RE-EXPOSED TO ANY EXCHANGE RISK OR IF , ALTHOUGH IT EXISTED , SUCH A RISK DID NOT MATERIALIZE .

8 IT IS IN THE LIGHT OF THESE CONSIDERATIONS THAT IT IS NECESSARY TO EXAMINE THE PERFORMANCE OF THE CONTRACT OF 15 JUNE 1971 BETWEEN THE APPPLICANT AND ONACO AS REGARDS THE DELIVERIES IN RESPECT OF WHICH THE APPLICANT CAUSED THE EXPORT REFUND TO BE FIXED IN ADVANCE .

9 UNDER THE TERMS OF THE CONTRACT , THE PURCHASER HAD THE CHOICE BETWEEN PAYING IN DOLLARS AND PAYING IN FRENCH FRANCS WHICH , AFTER THE FALL OF THE DOLLAR WHICH OCCURRED AFTER THE CONTRACT HAD BEEN SIGNED , INVOLVED A RISK FOR THE APPLICANT .

10 AS REGARDS THE CONSIGNMENTS IN QUESTION , WHICH WERE DELIVERED BETWEEN 25 APRIL AND 4 JULY 1972 , THE PURCHASER ' S OPTION LASTED UNTIL PAYMENT OF THE AMOUNTS SHOWN ON THE PROVISIONAL INVOICES , WHICH TOOK PLACE SOME MONTHS AFTER DELIVERY AND EVEN LATER IN THE CASE OF THE AMOUNTS REMAINING TO BE SETTLED AFTER FINAL INVOICING .

11 AS ALL THE PAYMENTS WERE EVENTUALLY MADE IN FRENCH FRANCS , THE EXCHANGE RISK , ALTHOUGH IT EXISTED FOR A CERTAIN TIME , DID NOT MATERIALIZE .

12 IT REMAINS TO BE CONSIDERED WHETHER , AS THE APPLICANT CLAIMS , PAYMENT IN FRENCH FRANCS COULD ONLY HAVE BEEN OBTAINED IN CONSIDERATION FOR THE WAIVER OF INTEREST ON ARREARS WHICH , AS PREVIOUS EXPERIENCE SHOWED , WAS FORESEEABLE AS REGARDS THE CONSIGNMENTS IN QUESTION AND DID , IN FACT , BECOME DUE .

13 ALTHOUGH IT IS NOT , IN PRINCIPLE , INCONCEIVABLE THAT A CONSIDERATION OF THIS KIND MIGHT POSSIBLY CONSTITUTE A LOSS SUFFERED BY THE APPLICANT WITHIN THE MEANING OF THE INTERLOCUTORY JUDGMENT , IT IS INCUMBENT UPON THE LATTER , HOWEVER , TO PROVE THAT IT WAS THE WAIVER OF INTEREST ON ARREARS WHICH IN FACT ENABLED IT TO OBTAIN PAYMENT IN FRENCH FRANCS .

14 IN THIS CONNEXION THE APPLICANT REFERS , FIRST , TO THE NEGOTIATIONS WHICH IT HAD WITH THE PURCHASER DURING MARCH 1972 AND , SECOND , TO THE GENERAL AGREEMENT REACHED BETWEEN THE TWO PARTIES TO THE CONTRACT BY THE EXCHANGE OF LETTERS OF 11 AND 20 JUNE 1974 .

15 AS REGARDS THE NEGOTIATIONS OF MARCH 1972 , THE APPLICANT HAS NOT CONCLUSIVELY PROVED THAT IT IRREVOCABLY UNDERTOOK TO WAIVE INTEREST ON ARREARS IN CONSIDERATION FOR A WAIVER BY THE PURCHASER OF ITS OPTION REGARDING PAYMENT , OR THAT THE PURCHASER WAS INDUCED TO OPT FOR PAYMENT IN FRENCH FRANCS BY REASON OF THE FACT THAT THE APPLICANT STATED THAT IT WAS PREPARED TO WAIVE THE SAID INTEREST .

16 AS REGARDS THE AGREEMENT OF JUNE 1974 IT IS CLEAR FROM ITS TERMS THAT IT REPRESENTED A COMPREHENSIVE SETTLEMENT CONCERNING SEVERAL POINTS OF DISAGREEMENT BETWEEN THE PARTIES ON THE SUBJECT NOT ONLY OF INTEREST ON ARREARS AND OF THE 1971 CONTRACT BUT ALSO ON THE SUBJECT OF OTHER POINTS CONCERNING OTHER CONTRACTS , WITH THE RESULT THAT IT CANNOT BE CONSIDERED AS CONCLUSIVE PROOF OF A CONNEXION BETWEEN THE WAIVER OF INTEREST ON THE PAYMENT FOR THE FOUR CONSIGNMENTS IN DISPUTE AND THE CHOICE MADE BY THE PURCHASER CONCERNING THE CURRENCY OF PAYMENT , NO SUCH CHOICE HAVING EVER BEEN MENTIONED IN THE LETTERS ESTABLISHING THE AGREEMENT .

17 SINCE , IN CONSEQUENCE , THE APPLICANT HAS NOT PROVED THAT IT SUFFERED A LOSS WHICH THE COMMISSION IS OBLIGED TO MAKE GOOD , THE APPLICATION MUST BE DISMISSED .

COSTS

18 THE APPLICANT HAS FAILED IN ITS APPLICATION .

19 UNDER ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE THE COURT MAY , WHERE THE CIRCUMSTANCES ARE EXCEPTIONAL , ORDER THE PARTIES TO BEAR THEIR OWN COSTS .

20 IN THE PRESENT CASE , THE COURT HAS FOUND THAT THE CONDUCT OF THE COMMISSION WAS CALCULATED TO RENDER THE COMMUNITY LIABLE .

21 IN THESE CIRCUMSTANCES THE PARTIES MUST BEAR THEIR OWN COSTS .

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .