61974J0099

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1 . ACTION FOR DAMAGES - NATURE - INDEPENDENT FORM OF ACTION

( EEC TREATY, ARTICLES 178 AND 215 )

2 . NON-CONTRACTUAL LIABILITY OF THE COMMUNITY - SCOPE - DEBT OWED BY A MEMBER STATE

3 . ACTION FOR DAMAGES - ADMISSIBILITY - INJURY CAUSED BY THE COMMUNITY - ALLEGATION - CONDITION

( EEC TREATY, ARTICLES 178 AND 215 )

1 . THE ACTION FOR DAMAGES PROVIDED FOR IN ARTICLES 178 AND 215 OF THE TREATY WAS INCLUDED AS AN INDEPENDENT FORM OF ACTION WITH A PARTICULAR PURPOSE TO FULFIL WITHIN THE SYSTEM OF LEGAL REMEDIES AND SUBJECT TO CONDITIONS ON ITS USE ARISING OUT OF ITS SPECIFIC AIM .

2 . A REFUSAL BY A COMMUNITY INSTITUTION TO PAY A DEBT OWED BY A MEMBER STATE TO AN EXPORTER UNDER COMMUNITY LAW IS NOT A MATTER INVOLVING THE NON-CONTRACTUAL LIABILITY OF THE COMMUNITY .

3 . FOR AN ACTION INVOLVING NON-CONTRACTUAL LIABILITY TO LIE IT IS NECESSARY THAT AN INJURY ARISING FROM AN ACT OR OMISSION OF THE COMMUNITY BE CAPABLE OF ADVERSELY AFFECTING THE APPLICANT BE ALLEGED .

IN CASE 99/74

SOCIETE DES GRANDS MOULINS DES ANTILLES, ACTING THROUGH ITS CHAIRMAN AND MANAGING DIRECTOR, REPRESENTED BY JEAN-DENIS BREDIN, ADVOCATE AT THE COUR DE PARIS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES MARGUES, 20 RUE PHILIPPE II, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, J . H . J . BOURGEOIS, ACTING AS AGENT, ASSISTED BY G . ZUR HAUSEN, A MEMBER OF ITS LEGAL DEPARTMENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO, LEGAL ADVISER, BATIMENT CFL, PLACE DE LA GARE, DEFENDANT,

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

1 IN THE APPLICATION INITIATING PROCEEDINGS THE APPLICANT COMPANY ASKS THAT THE COMMUNITY BE ORDERED TO PAY THE SUM OF FF 501 428.15,

'AS COMPENSATION FOR THE DAMAGE OCCASIONED IT BY THE ILLEGAL IMPLIED REFUSAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES TO PAY THE FOLLOWING SUMS :

1 . THE REFUNDS PAYABLE TO IT IN RESPECT OF EXPORTS OF CEREALS FROM THE FRENCH OVERSEAS DEPARTMENT ... TO THIRD COUNTRIES;

2 . THE CARRY-OVER PAYMENT IN RESPECT OF STOCKS REMAINING AT THE END OF THE 1972/73 MARKETING YEAR : FF 278 452.18 '.

2 THE APPLICANT COMPANY, WHICH IS ESTABLISHED IN ONE OF THE FRENCH OVERSEAS DEPARTMENTS, REQUESTED A CERTAIN NUMBER OF EXPORT CERTIFICATES FOR CEREALS FIXING IN ADVANCE THE AMOUNT OF THE EXPORT REFUND .

3 IN ADDITION, IT MAINTAINS THAT IT FULFILLED ALL THE CONDITIONS ENTITLING IT TO THE REFUNDS FIXED IN ADVANCE UNDER ARTICLE 16 OF REGULATION NO 120/67 ( OJ 1967, P . 2269 ) AND THE REGULATIONS IN IMPLEMENTATION THEREOF .

4 WITH REGARD TO THE TONNAGES OF CEREALS WHICH IT CONTINUED TO HOLD IN STOCK AT THE END OF THE 1972/73 MARKETING YEAR, THE APPLICANT MAINTAINS THAT IT COMPLETED THE NECESSARY FORMALITIES ENTITLING IT TO OBTAIN THE CARRY-OVER PAYMENTS PROVIDED FOR IN ARTICLE 9 OF REGULATION NO 120/67 AND THE REGULATIONS IN IMPLEMENTATION THEREOF .

5 UNDER ARTICLE 10 OF REGULATION NO 1041/67/EEC OF THE COMMISSION ( OJ NO 314, P . 9 ) THE REFUND IS TO BE PAID BY THE MEMBER STATE IN WHOSE TERRITORY THE CUSTOMS EXPORT FORMALITIES WERE CONCLUDED .

6 UNDER ARTICLE 3 ( 1 ) OF REGULATION NO 1554/73 ( OJ L 156, P . 13 ) THE CARRY-OVER PAYMENT IS TO BE 'GRANTED BY THE COMPETENT AUTHORITY OF THE MEMBER STATE IN WHOSE TERRITORY THE STOCKS ARE SITUATED '.

7 THE PROVISIONS OF REGULATION NO 120/67 PROVIDING FOR THE GRANT OF AN EXPORT REFUND AND FOR A CARRY-OVER PAYMENT ON STOCKS, TOGETHER WITH THE IMPLEMENTING REGULATIONS OF THE COMMISSION PRESCRIBING THE AMOUNT OF AND THE RULES FOR PAYMENT, ARE DIRECTLY APPLICABLE TO THE ENTIRE TERRITORY OF THE FRENCH REPUBLIC .

8 IN ORDER TO CLAIM PAYMENT OF THE SUMS DUE TO IT UNDER DIRECTLY APPLICABLE COMMUNITY LAW THE APPLICANT APPLIED UNSUCCESSFULLY TO THE COMPETENT AUTHORITY IN THE FRENCH REPUBLIC, WITHOUT HOWEVER BRINGING THE MATTER BEFORE THE COURTS OF THAT STATE .

9 THE APPLICANT COMPANY THEN APPROACHED THE COMMISSION IN ORDER TO OBTAIN PAYMENT, BY A CLAIM DATED 27 AUGUST 1974 .

10 THE COMMISSION BY IMPLICATION REJECTED THIS CLAIM AND THE APPLICANT INITIATED THE PRESENT PROCEEDINGS UNDER ARTICLE 215 OF THE EEC TREATY .

11 THE COMMISSION PUTS FORWARD THREE OBJECTIONS OF INADMISSIBILITY WITH REGARD TO THE APPLICATION .

12 FIRST, IT MAINTAINS THAT THE 'WRONGFUL ACT' ALLEGED BY THE APPLICANT CONSISTS IN THE REFUSAL OF THE COMMISSION TO MAKE THE PAYMENT, WHILST RECOURSE TO AN ACTION FOR DAMAGES IMPLIES THAT AN INJURY DISTINCT FROM THE FAILURE TO PAY IS ALLEGED .

13 SECONDLY, IT CONTENDS THAT THE APPLICATION IS MISDIRECTED SINCE ONLY THE MEMBER STATES, AND NOT THE COMMUNITY, HAVE AUTHORITY TO PAY THE SUMS IN QUESTION .

14 THIRDLY, IT CLAIMS THAT THE APPLICATION IS INADMISSIBLE AT THIS STAGE SINCE THE NATIONAL COURT HAS NOT YET HAD AN OPPORTUNITY TO RULE AS TO WHETHER THE APPLICANT HAS ANY RIGHTS AGAINST THE COMPETENT NATIONAL ADMINISTRATION .

15 THE ACTION FOR DAMAGES PROVIDED FOR IN ARTICLES 178 AND 215 OF THE TREATY WAS INCLUDED AS AN INDEPENDENT FORM OF ACTION, WITH A PARTICULAR PURPOSE TO FULFIL WITHIN THE SYSTEM OF LEGAL REMEDIES, AND SUBJECT TO CONDITIONS ON ITS USE ARISING OUT OF ITS SPECIFIC NATURE .

16 THE REFUSAL BY A COMMUNITY INSTITUTION TO PAY A DEBT WHICH MAY BE OWED BY A MEMBER STATE UNDER COMMUNITY LAW IS NOT A MATTER INVOLVING THE NON-CONTRACTUAL LIABILITY OF THE COMMUNITY .

17 FOR AN ACTION INVOLVING NON-CONTRACTUAL LIABILITY TO LIE IT IS NECESSARY THAT AN INJURY ARISING FROM AN ACT OR OMISSION OF THE COMMUNITY BE ALLEGED .

18 IN ITS REPLY THE APPLICANT HAS REDEFINED ITS APPLICATION IN AN ENDEAVOUR TO BRING IT WITHIN THE FRAMEWORK OF THE ACTION TO ESTABLISH NON-CONTRACTUAL LIABILITY .

19 IT MAINTAINS THAT IT IS THE UNLAWFUL REFUSAL OF THE COMMISSION TO FINANCE THE EXPENSES ARISING FROM THE AGRICULTURAL REGULATIONS FOR WHICH THE FRENCH REPUBLIC IS LIABLE IN RELATION TO THE OVERSEAS DEPARTMENTS WHICH HAS LED THE COMPETENT FRENCH AUTHORITIES TO REFUSE THE APPLICANT THE SUMS PAYABLE TO IT, AND THAT SUCH UNLAWFUL REFUSAL ON THE PART OF THE COMMISSION INVOLVES THE NON-CONTRACTUAL LIABILITY OF THE COMMUNITY .

20 THE APPLICANT AGAIN INVOKES THE RIGHT TO RECEIVE PAYMENT EITHER FROM THE COMMISSION OR FROM THE FRENCH AUTHORITY PURSUANT TO REGULATION NO . 120/67 AND THE REGULATIONS ADOPTED IN IMPLEMENTATION THEREOF .

21 ITS APPLICATION IS IN FACT FOR PAYMENT BY THE COMMUNITY INSTEAD OF BY THE COMPETENT AUTHORITY OF THE STATE IN QUESTION OF THE SUMS WHICH IT CLAIMS ARE PAYABLE TO IT UNDER COMMUNITY LAW .

22 THE PROVISIONS OF COMMUNITY LAW, ESPECIALLY ARTICLE 10 OF REGULATION NO 1041/67 AND ARTICLE 3 OF REGULATION NO 1554/73, LEAVE NO DOUBT THAT PAYMENT OR REFUSAL OF PAYMENT ARE MEASURES APPROPRIATE TO THE NATIONAL AUTHORITIES .

23 IT IS THUS FOR THE NATIONAL COURTS HAVING JURISDICTION IN THE MATTER TO GIVE A RULING ON THE LEGALITY OF SUCH MEASURES, IN PURSUANCE OF COMMUNITY LAW, WITHIN THE FORMS LAID DOWN BY NATIONAL LAW, FOLLOWING RECOURSE, WHERE NECESSARY, TO ARTICLE 177 OF THE TREATY .

24 CONSEQUENTLY, IT IS IMPOSSIBLE TO ACCEPT THE APPLICANT'S ATTEMPT TO DISREGARD THE PRECISE WORDING OF THE IMPLEMENTING REGULATIONS, PROVIDING THAT THE NATIONAL AUTHORITIES HAVE THE REQUISITE POWERS, THE MORE SO SINCE ANY RIGHTS WHICH IT MAY HAVE AGAINST THOSE AUTHORITIES CANNOT DEPEND UPON A PRIOR FINANCIAL AUTHORIZATION BY THE COMMUNITY .

25 SINCE THE APPLICANT HAS FAILED TO ALLEGE AN INJURY ARISING FROM AN ACT OR OMISSION OF THE COMMUNITY CAPABLE OF AFFECTING IT ADVERSELY, ITS APPLICATION IS INADMISSIBLE UNDER ARTICLE 178 OF THE TREATY .

26 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

27 IN THIS CASE THE APPLICANT HAS FAILED IN ITS APPLICATION .

28 IT MUST THEREFORE BE ORDERED TO BEAR THE COSTS OF THE PROCEEDINGS .

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE .

2 . ORDERS THE APPLICANT TO BEAR THE COSTS .