61980J0256

ACTION FOR DAMAGES - PERIOD OF LIMITATION - DATE OF COMMENCEMENT - LIABILITY ARISING FROM A LEGISLATIVE MEASURE - DATE ON WHICH THE INJURIOUS EFFECTS OF THE MEASURE ARE PRODUCED

( EEC TREATY , ART . 178 AND SECOND PARAGRAPH OF ART . 215 ; PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC , ART . 43 )

AS IS APPARENT FROM ARTICLE 215 OF THE EEC TREATY AND ARTICLE 43 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC , 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 .

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 THE 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 .

IN JOINED CASES 256 , 257 , 265 AND 267/80 AND 5/81

BIRRA WUHRER SPA , WHOSE REGISTERED OFFICE IS AT 62 VIALE BORMATA , BRESCIA , ACTING THROUGH ITS CHAIRMAN AND LEGAL REPRESENTATIVE , FRANCESCO WUHRER ,

MANGIMI NICCOLAI SPA , WHOSE REGISTERED OFFICE IS AT 196 CORSO GARIBALDI , NAPLES , ACTING THROUGH ITS LEGAL REPRESENTATIVE , GIOVANNI NICCOLAI , THE MANAGING DIRECTOR ,

DE FRANCESCHI MARINO & FIGLI SPA , WHOSE REGISTERED OFFICE IS AT 72A VIALE GRIGOLETTI , PORDENONE , ACTING THROUGH ITS LEGAL REPRESENTATIVE , DINO DE FRANCESCHI , THE MANAGING DIRECTOR ,

RISERIA MODENESE SRL , WHOSE REGISTERED OFFICE IS AT 5 VIA MILANO , CARPI ( MODENA ), ACTING THROUGH ITS LEGAL REPRESENTATIVE , NATALINO BAETTA ,

AND

RISERIE ANGELO E GIACOMO RONCAIA , WHOSE REGISTERED OFFICE IS AT CASTELPORTE ( MANTUA ), ACTING THROUGH ITS PROPRIETORS , ANGELO RONCAIA AND GIACOMO RONCAIA ,

REPRESENTED AND ASSISTED BY NICOLA CATALANO OF THE ROME BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , CENTRE LOUVIGNY 34/B/4 , RUE PHILIPPE-II ,

APPLICANTS ,

V

COUNCIL AND COMMISSION OF THE EUROPEAN COMMUNITIES , THE FORMER REPRESENTED BY DANIEL VIGNES , DIRECTOR OF THE LEGAL DEPARTMENT OF THE COUNCIL OF THE EUROPEAN COMMUNITIES , ASSISTED BY ARTHUR BRAUTIGAM , AN ADMINISTRATOR IN THE SAID DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF DOUGLAS FONTEIN , THE DIRECTOR OF THE DIRECTORATE FOR LEGAL QUESTIONS OF THE EUROPEAN INVESTMENT BANK , 100 BOULEVARD KONRAD ADENAUER , AND THE LATTER BY ITS LEGAL ADVISER , RICHARD WAINWRIGHT , ACTING AS AGENT , ASSISTED BY GUIDO BERARDIS , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANTS ,

OBJECTION OF INADMISSIBILITY RAISED BY THE COUNCIL AND THE COMMISSION AGAINST ACTIONS SEEKING COMPENSATION FOR DAMAGE SUSTAINED AS A RESULT OF THE ABOLITION , BY REGULATION ( EEC ) NO 665/75 OF 4 MARCH 1975 , REGULATION ( EEC ) NO 668/75 OF 4 MARCH 1975 , OR BOTH , OF PRODUCTION REFUNDS FOR MAIZE GROATS AND MEAL ( GRITZ ) AND FOR BROKEN RICE INTENDED FOR THE BREWING INDUSTRY AND AS A RESULT OF THE FAILURE TO RESTORE THE PRODUCTION REFUNDS IN RESPECT OF SALES EFFECTED DURING THE PERIODS FROM 1 AUGUST 1975 TO 19 OCTOBER 1977 AND FROM 1 SEPTEMBER 1975 TO 19 OCTOBER 1977 ,

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 RE-INTRODUCED THE ABOVE-MENTIONED 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 NON-CONTRACTUAL 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 WUHRER 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 .