61980J0197

1 . ACTION FOR DAMAGES - AUTONOMOUS FORM OF ACTION - DIFFERENCE FROM ACTION FOR ANNULMENT

( EEC TREATY , ART . 178 AND SECOND PARAGRAPH OF ART . 215 )

2 . ACTION FOR DAMAGES - OBJECTION OF INADMISSIBILITY ON THE GROUND THAT NO ACTION WAS BROUGHT BEFORE THE NATIONAL COURTS

3 . NON-CONTRACTUAL LIABILITY - CONDITIONS - LEGISLATIVE MEASURE - SUFFICIENTLY SERIOUS BREACH OF A SUPERIOR RULE OF LAW

( EEC TREATY , SECOND PARAGRAPH OF ART . 215 )

4 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - FIXING OF AGRICULTURAL PRICES - DISCRETIONARY POWERS OF THE COMMUNITY INSTITUTIONS

( EEC TREATY , THIRD SUBPARAGRAPH OF ART . 40 ( 3 ))

5 . AGRICULTURE - COMMON AGRICULTURAL POLICY - OBJECTIVES - RECONCILIATION THEREOF - OBLIGATIONS OF THE COMMUNITY INSTITUTIONS

( EEC TREATY , ART . 39 )

1 . THE ACTION FOR DAMAGES UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY WAS ESTABLISHED AS AN AUTONOMOUS FORM OF ACTION WITH A PARTICULAR PURPOSE TO FULFIL WITHIN THE SYSTEM OF ACTIONS AND THE EXERCISE OF IT IS SUBJECT TO CONDITIONS IMPOSED IN VIEW OF THE SPECIFIC OBJECTIVE THEREOF . THAT FORM OF ACTION IS DIFFERENT FROM AN ACTION FOR ANNULMENT IN THAT IT DOES NOT SEEK THE CANCELLATION OF A SPECIFIED MEASURE BUT COMPENSATION FOR DAMAGE CAUSED BY THE INSTITUTIONS IN THE EXERCISE OF THEIR FUNCTIONS ; THE CONDITIONS FOR ACTIONS FOR DAMAGES ARE LAID DOWN WITH THAT OBJECTIVE IN MIND AND ACCORDINGLY ARE DIFFERENT FROM THOSE FOR AN ACTION FOR ANNULMENT .

IT FOLLOWS FROM THE FOREGOING THAT , IN ORDER TO BE SUCCESSFUL , ANY PARTY WHO CHOOSES TO PURSUE AN ACTION FOR DAMAGES IS OBLIGED TO ESTABLISH FULFILMENT OF ALL THE CONDITIONS WHICH MUST BE FULFILLED , PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY , IF THE LIABILITY OF THE COMMUNITY IS TO BE INCURRED . THE FACT THAT SOME OF THOSE CONDITIONS MAY COINCIDE WITH THOSE APPLICABLE TO AN ACTION FOR ANNULMENT IS NOT THEREFORE A SUFFICIENT REASON TO DESCRIBE AN ACTION BY A PARTY IN RELIANCE UPON ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 AS A MISUSE OF PROCEDURE .

2 . NO OBJECTION OF INADMISSIBILITY MAY BE BASED ON THE APPLICANTS ' FAILURE TO AVAIL THEMSELVES OF A FORM OF ACTION IN THE NATIONAL COURTS WHICH WAS NOT IN FACT OPEN TO THEM .

3 . UNDER THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY AND THE GENERAL PRINCIPLES TO WHICH THAT PROVISION REFERS , COMMUNITY LIABILITY DEPENDS ON THE COINCIDENCE OF A SET OF CONDITIONS AS REGARDS THE UNLAWFULNESS OF THE ACTS ALLEGED AGAINST THE INSTITUTIONS , THE FACT OF DAMAGE AND THE EXISTENCE OF A DIRECT LINK IN THE CHAIN OF CAUSALITY BETWEEN THE WRONGFUL ACT AND THE DAMAGE COMPLAINED OF .

SINCE THE MEASURES CONCERNED ARE LEGISLATIVE MEASURES , THE COMMUNITY DOES NOT INCUR LIABILITY UNLESS A SUFFICIENTLY SERIOUS BREACH OF A SUPERIOR RULE OF LAW FOR THE PROTECTION OF THE INDIVIDUAL HAS OCCURRED .

4 . IN DETERMINING THEIR POLICY WITH RESPECT TO THE FIXING OF AGRICULTURAL PRICES , THE COMPETENT COMMUNITY INSTITUTIONS ENJOY WIDE DISCRETIONARY POWERS REGARDING NOT ONLY ESTABLISHMENT OF THE FACTUAL BASIS OF THEIR ACTION BUT ALSO DEFINITION OF THE OBJECTIVES TO BE PURSUED , WITHIN THE FRAMEWORK OF THE PROVISIONS OF THE TREATY , AND THE CHOICE OF THE APPROPRIATE MEANS OF ACTION .

THE FACT THAT THE COMMUNITY INSTITUTIONS ADOPTED A POLICY ON AGRICULTURAL PRICE LEVELS FOR A LONG PERIOD DOES NOT CONFER UPON THE TRADERS INVOLVED ANY ENTITLEMENT TO PRESERVATION OF SUCH ADVANTAGES AS THE ESTABLISHED POLICY MAY HAVE ALLOWED THEM ; NOR DOES THAT FACT IMPOSE ANY LIMITATION ON THE FREEDOM OF THE COMMISSION AND THE COUNCIL TO ADJUST THEIR POLICY IN STEP WITH DATA REFLECTING THE EVOLUTION OF THE MARKET AND WITH THE OBJECTIVES PURSUED .

5 . THE COMMUNITY INSTITUTIONS MUST RECONCILE THE VARIOUS OBJECTIVES LAID DOWN BY ARTICLE 39 OF THE EEC TREATY , A FACT WHICH PRECLUDES THE ISOLATION OF ANY ONE OF THOSE OBJECTIVES , SUCH AS THE STABILIZATION OF CERTAIN SITUATIONS WHICH HAVE BECOME ESTABLISHED , IN SUCH A WAY AS TO RENDER IMPOSSIBLE THE REALIZATION OF OTHER OBJECTIVES SUCH AS THE RATIONAL DEVELOPMENT OF AGRICULTURAL PRODUCTION AND SECURITY OF SUPPLIES , ABOVE ALL WHERE THERE IS A SHORTFALL OF THE PRODUCT CONCERNED .

IN JOINED CASES 197 TO 200 , 243 , 245 AND 247/80 ,

LUDWIGSHAFENER WALZMUHLE ERLING KG , HAVING ITS REGISTERED OFFICE AT BREMEN AND OPERATING A DURUM WHEAT MILL AT LUDWIGSHAFEN AM RHEIN ( CASE 197/80 ),

PARK-MUHLEN GMBH , HAVING ITS REGISTERED OFFICE AT MANNHEIM , WHERE IT OPERATES A DURUM WHEAT MILL ( CASE 198/80 ),

MUHLE RUNINGEN AG , HAVING ITS REGISTERED OFFICE AT RUNINGEN-BRAUNSCHWEIG , WHERE IT OPERATES A DURUM WHEAT MILL ( CASE 199/80 ),

PFALZISCHE MUHLENWERKE GMBH , HAVING ITS REGISTERED OFFICE AT MANNHEIM , WHERE IT OPERATES A DURUM WHEAT MILL ( CASE 200/80 ),

KURT KAMPFFMEYER MUHLENVEREINIGUNG KG , HAVING ITS REGISTERED OFFICE AT HAMBURG AND BRANCHES OPERATING DURUM WHEAT MILLS AT MANNHEIM AND BERLIN ( CASE 243/80 ),

WILHELM WERHAHN KG , HAVING ITS REGISTERED OFFICE AT NEUSS AM RHEIN , WHERE IT OPERATES A DURUM WHEAT MILL ( CASE 245/80 ),

SCHWABEN-NUDEL-WERKE B . BIRKEL SOHNE GMBH & CO ., HAVING ITS REGISTERED OFFICE AT ENDERSBACH , AND SEVERAL FACTORIES PRODUCING PASTA PRODUCTS , THE PRINCIPAL ONE OF WHICH IS SITUATED IN WEINSTADT-ENDERSBACH ( CASE 247/80 ),

ALL REPRESENTED BY FRITZ MODEST AND JURGEN GUNDISCH , OF THE HAMBURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF JEANNE JANSEN-HOUSSE , HUISSIER DE JUSTICE , 21 RUE ALDRINGEN ,

APPLICANTS ,

SCHWABEN-NUDEL-WERKE B . BIRKEL SOHNE GMBH & CO . ( CASE 247/80 ) BEING SUPPORTED BY

ETABLISSEMENTS JOSEPH SOUBRY SA HAVING ITS REGISTERED OFFICE AT ROESELARE , WHERE IT OPERATES A DURUM WHEAT MILL ,

AND

N.V . BLOEMMOLENS ANT . COPPENS , HAVING ITS REGISTERED OFFICE AT TURNHOUT , WHERE IT OPERATES A DURUM WHEAT MILL ,

BOTH REPRESENTED BY A . F . DE SAVORNIN LOHMAN , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF LAMBERT H . DUPONG , 14A RUE DES BAINS ,

INTERVENERS ,

V

COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY BERNHARD SCHLOH , AN ADVISER IN ITS LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY ARTHUR BRAUTIGAM , AN ADMINISTRATOR IN THE LEGAL DEPARTMENT , ACTING AS JOINT AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF D . J . FONTEIN , DIRECTOR OF THE LEGAL DEPARTMENT OF THE EUROPEAN INVESTMENT BANK , KIRCHBERG ,

AND

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JORN SACK , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY ALBRECHT STOCKBURGER , OF THE FRANKFURT AM MAIN BAR , WITH AN ADDRESS FOR SERVICE AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANTS ,

SUPPORTED BY

GOVERNMENT OF THE ITALIAN REPUBLIC , REPRESENTED BY ARNALDO SQUILLANTE , HEAD OF THE LITIGATION DEPARTMENT FOR DIPLOMATIC , TREATY AND LEGISLATIVE MATTERS , ACTING AS AGENT , ASSISTED BY GUIDO FIENGA , STATE ADVOCATE , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE ITALIAN EMBASSY ,

COMITE FRANCAIS DE LA SEMOULERIE INDUSTRIELLE , A TRADE ASSOCIATION ESTABLISHED IN PARIS ,

SYNDICAT DES INDUSTRIELS FABRICANTS DE PATES ALIMENTAIRES DE FRANCE , A TRADE ASSOCIATION ESTABLISHED IN PARIS ,

ASSOCIATION GENERALE DES PRODUCTEURS DE BLE ET AUTRES CEREALES , A LEGAL PERSON ESTABLISHED IN PARIS ,

ALL THREE REPRESENTED BY LISE FUNCK-BRENTANO , OF THE PARIS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF JOSEPH HANSEN AND MARLYSE NEUEN-KAUFFMANN , 21 , RUE PHILIPPE II ,

INTERVENERS ,

APPLICATIONS SEEKING DAMAGES PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY ,

1 BY APPLICATIONS RECEIVED AT THE COURT REGISTRY ON 7 OCTOBER 1980 , 30 OCTOBER 1980 , 5 NOVEMBER 1980 AND 6 NOVEMBER 1980 RESPECTIVELY , THE COMPANIES LUDWIGSHAFENER WALZMUHLE ERLING KG , PARK-MUHLEN GMBH , MUHLE RUNINGEN AG , PFALZISCHE MUHLENWERKE GMBH , KURT KAMPFFMEYER MUHLENVEREINIGUNG KG AND WILHELM WERHAHN KG , DURUM WHEAT MILLERS , AND ALSO THE COMPANY SCHWABEN-NUDEL-WERKE B . BIRKEL SOHNE GMBH & CO ., A MANUFACTURER OF PASTA PRODUCTS IN THE FEDERAL REPUBLIC OF GERMANY , BROUGHT ACTIONS PURSUANT TO ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY SEEKING THE AWARD OF THE SUMS HEREINAFTER SPECIFIED AS COMPENSATION FOR THE DAMAGE CAUSED THEM BY THE COUNCIL AND THE COMMISSION AS A RESULT OF THE FIXING OF THE THRESHOLD PRICE FOR DURUM WHEAT IMPORTED FROM NON-MEMBER COUNTRIES DURING 1979 BY COMPARISON WITH THE PRICE FIXED FOR COMMON WHEAT .

2 IT APPEARS FROM THE FILE ON THE CASE THAT THE MEASURES WHICH , ACCORDING TO THE APPLICANTS , HAVE GIVEN RISE TO THE ALLEGED DAMAGE ARE FOUR REGULATIONS FIXING THE PRICE OF CEREALS FOR THE 1978/79 AND 1979/80 MARKETING YEARS , NAMELY :

- COUNCIL REGULATION ( EEC ) NO 1255/78 OF 12 JUNE 1978 ( OFFICIAL JOURNAL 1978 , L 156 , P . 2 ),

- COMMISSION REGULATION ( EEC ) NO 1408/78 OF 26 JUNE 1978 ( OFFICIAL JOURNAL 1978 , L 170 , P . 28 ),

- COUNCIL REGULATION ( EEC ) NO 1548/79 OF 24 JULY 1979 ( OFFICIAL JOURNAL 1979 , L 188 , P . 2 ),

- COMMISSION REGULATION ( EEC ) NO 1594/79 OF 26 JULY 1979 ( OFFICIAL JOURNAL 1979 , L 189 , P . 44 ).

ADMISSIBILITY

3 THE COUNCIL AND THE COMMISSION , SUPPORTED BY THE ITALIAN GOVERNMENT , CONTEST THE ADMISSIBILITY OF THE ACTIONS ON VARIOUS GROUNDS . IN SUBSTANCE , THEY ACCUSE THE APPLICANTS OF A MISUSE OF PROCEDURE BY REASON OF THE FACT THAT , ON THE ONE HAND , THEY SEEK TO EVADE , BY MEANS OF ACTIONS FOR DAMAGES , THE RESTRICTIVE CONDITIONS APPLICABLE TO ACTIONS BY THE INDIVIDUAL IN CONNECTION WITH THE REVIEW , IMPOSED BY THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY , OF THE LEGALITY OF REGULATIONS AND THAT , ON THE OTHER HAND , BY BRINGING THE MATTER BEFORE THE COURT BY DIRECT ACTION THEY HAVE FAILED TO AVAIL THEMSELVES OF THE RIGHTS OF RECOURSE OPEN TO THEM BEFORE THEIR NATIONAL COURTS .

OBJECTION AS TO THE MISUSE OF THE PROCEDURE UNDER THE SECOND PARAGRAPH OF ARTICLE 73

4 AS TO THIS OBJECTION , IT IS SUFFICIENT TO NOTE THAT , IN A CONSISTENT LINE OF DECISIONS , THE COURT HAS HELD THAT THE ACTION FOR DAMAGES UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY WAS ESTABLISHED AS AN AUTONOMOUS FORM OF ACTION WITH A PARTICULAR PURPOSE TO FULFIL WITHIN THE SYSTEM OF ACTIONS AND THE EXERCISE OF IT IS SUBJECT TO CONDITIONS IMPOSED IN VIEW OF THE SPECIFIC OBJECTIVE THEREOF . THAT FORM OF ACTION IS DIFFERENT FROM AN ACTION FOR ANNULMENT IN THAT IT DOES NOT SEEK THE CANCELLATION OF A SPECIFIED MEASURE BUT COMPENSATION FOR DAMAGE CAUSED BY THE INSTITUTIONS IN THE EXERCISE OF THEIR FUNCTIONS ; THE CONDITIONS FOR ACTIONS FOR DAMAGES ARE LAID DOWN WITH THAT OBJECTIVE IN MIND AND ACCORDINGLY ARE DIFFERENT FORM THOSE FOR AN ACTION FOR ANNULMENT ( SEE JUDGMENT OF 2 JULY 1974 IN CASE 153/73 HOLTZ & WILLEMSEN ( 1974 ) ECR 675 , PARAGRAPHS 2 TO 5 OF THE DECISION ).

5 IT FOLLOWS FROM THE FOREGOING THAT , IN ORDER TO BE SUCCESSFUL , ANY PARTY WHO CHOOSES TO PURSUE AN ACTION FOR DAMAGES IS OBLIGED TO ESTABLISH FULFILMENT OF ALL THE CONDITIONS WHICH MUST BE FULFILLED , PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY , IF THE LIABILITY OF THE COMMUNITY IS TO BE INCURRED . THE FACT THAT SOME OF THOSE CONDITIONS MAY COINCIDE WITH THOSE APPLICABLE TO AN ACTION FOR ANNULMENT IS NOT THEREFORE A SUFFICIENT REASON TO DESCRIBE AN ACTION BY A PARTY IN RELIANCE UPON ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 AS A MISUSE OF PROCEDURE .

6 THAT OBJECTION MUST THEREFORE BE DISMISSED .

OBJECTION AS TO FAILURE TO EXERCISE RIGHTS OF ACTION BEFORE THE NATIONAL COURTS

7 THE DEFENDANT INSTITUTIONS DRAW ATTENTION , IN THE SECOND PLACE , TO THE FACT THAT THE APPLICANTS COULD HAVE DEFENDED THEMSELVES AGAINST THE ALLEGED DAMAGE BY BRINGING AN ACTION BEFORE THE COMPETENT NATIONAL COURTS IN CONNECTION WITH THE LEVIES CHARGED ON DURUM WHEAT IMPORTED BY THEM INTO THE COMMUNITY . IT WAS IN FACT THE COLLECTION OF THOSE LEVIES , ON THE BASIS OF THE THRESHOLD PRICE FIXED BY THE COMMUNITY , WHICH GAVE RISE TO THE FINANCIAL BURDEN IN RESPECT OF WHICH THE APPLICANTS CLAIM DAMAGES . SUCH AN ACTION , BROUGHT BEFORE THE NATIONAL COURTS , COULD HAVE LED TO A PRELIMINARY QUESTION UNDER ARTICLE 177 , THUS ENABLING THE COURT OF JUSTICE TO EXAMINE THE VALIDITY OF THE REGULATIONS CONTESTED BY THE APPLICANTS .

8 IT APPEARS FROM THE PRELIMINARY EXAMINATION OF THE CASE THAT SUCH A FORM OF ACTION WAS NOT OPEN TO THE APPLICANTS BEFORE THEIR NATIONAL COURTS . IT SEEMS , IN FACT , FROM THE STATEMENTS OF THE APPLICANTS , WHICH ARE NOT CONTESTED , THAT NONE OF THEM ACTUALLY IMPORTED THE DURUM WHEAT THEMSELVES ; THE APPLICANT COMPANIES OPERATING DURUM WHEAT MILLS MADE USE OF IMPORTERS WHO PAID THE LEVIES ; AS REGARDS BIRKEL , IT IS NOT CONTESTED THAT , AS A MANUFACTURER OF PASTA PRODUCTS , IT OBTAINED ITS RAW MATERIAL FROM THE MILLS .

9 IN THE CIRCUMSTANCES , THE APPLICANTS WERE NOT IN A POSITION TO BRING AN ACTION BEFORE THE NATIONAL COURTS REGARDING THE LEVIES COLLECTED ON THE IMPORTS OF DURUM WHEAT INTENDED FOR THEM . ACCORDINGLY NO OBJECTION OF INADMISSIBILITY MAY BE BASED ON THEIR FAILURE TO AVAIL THEMSELVES OF A FORM OF ACTION IN THE NATIONAL COURTS WHICH WAS NOT IN FACT OPEN TO THEM .

10 THE SECOND OBJECTION OF INADMISSIBILITY MUST THEREFORE ALSO BE DISMISSED .

11 THE COUNCIL ALSO ALLEGES INADMISSIBILITY ON THE GROUND THAT THE APPLICANTS HAVE CLAIMED DAMAGES ONLY FOR 1979 , STATING THAT THE AMOUNTS CLAIMED CONSTITUTE ONLY A FRACTION OF THE DAMAGE ACTUALLY SUFFERED BY THEM . HAVING REGARD TO THE POSSIBILITY THAT THE APPLICANTS WERE THUS PREPARING TO EXTEND THEIR CLAIMS AT A LATER STAGE , PARTICULARLY TO PERIODS BEFORE 1979 , THE COUNCIL TAKES THE VIEW THAT THE APPLICATIONS ARE INADMISSIBLE IN SO FAR AS THEY RELATE ONLY TO POSSIBLE DAMAGES .

12 IT DOES NOT SEEM NECESSARY TO EXAMINE THIS ARGUMENT OF THE COUNCIL REGARDING THE ADMISSIBILITY OF THE ACTIONS . THE COUNCIL ' S OBJECTIONS IN FACT CONCERN ONE OF THE SUBSTANTIVE PRE-CONDITIONS FOR LIABILITY ON THE PART OF THE COMMUNITY , NAMELY THE EXISTENCE OF DAMAGE . THEY WILL THEREFORE BE CONSIDERED WHEN THE SUBSTANCE OF THE CASE IS EXAMINED .

OBJECTION REGARDING A DOCUMENT SUBMITTED BY THE INTERVENING PARTIES SOUBRY AND COPPENS

13 AT THE HEARING , THE COMMISSION OBJECTED TO PRODUCTION BY THE INTERVENING PARTIES SOUBRY AND COPPENS , AS AN ANNEX TO THEIR STATEMENT AS INTERVENING PARTIES , OF A DOCUMENT ENTITLED ' ' REPORT TO THE COUNCIL ON DURUM WHEAT ' ' . ACCORDING TO THE COMMISSION , IT IS AN INTERNAL DOCUMENT WHICH WAS IMPROPERLY OBTAINED AND SHOULD THEREFORE BE REMOVED FROM THE FILE ON THE CASE ; IN FACT , THAT DOCUMENT IS MERELY A DRAFT REPORT PREPARED BY THE OFFICERS OF THE COMMISSION AT THAT TIME AND , ULTIMATELY , THE COMMISSION DID NOT APPROVE IT ; MOREOVER IT WAS NEVER TRANSMITTED TO THE COUNCIL .

14 ACCORDING TO THE INTERVENING PARTIES , THE DOCUMENT WAS DISTRIBUTED AT A MEETING OF THE ' ' ADVISORY COMMITTEE ON CEREALS ' ' SET UP WITHIN THE COMMISSION , WHICH INCLUDES THE REPRESENTATIVES OF THE VARIOUS INDUSTRIAL AND TRADE SECTORS INVOLVED . IT CAME INTO THE POSSESSION OF THE INTERVENERS THROUGH ONE OF THE PARTICIPANTS AT THAT MEETING .

15 THAT EXPLANATION WAS CONTESTED BY THE COMMISSION WHICH STATED THAT , AT THE MEETING IN QUESTION , THE PARTICIPANTS WERE GIVEN AN ORAL REPORT ON THE SUBJECT ; THE CONTESTED DOCUMENT HAD NOT AT THAT TIME EVEN BEEN SUBMITTED TO THE COMMISSION FOR EXAMINATION AND WAS NOT THEREFORE DISTRIBUTED . THE COMMISSION FURTHER NOTED THAT THE COPY PLACED BEFORE THE COURT HAD NO OUTER COVER , WHICH NORMALLY INDICATES THE ORIGIN OF THE DOCUMENT AND THE DATE AND TYPE THEREOF . WHEN QUESTIONED BY THE COURT , THE REPRESENTATIVE OF THE INTERVENING PARTIES WAS UNABLE TO SPECIFY THE PERSON BY WHOM THE DOCUMENT HAD BEEN MADE AVAILABLE OR TO EXPLAIN WHY IT WAS INCOMPLETE .

16 THE COURT FINDS THAT THERE EXISTS THUS A DOUBT BOTH AS TO THE ACTUAL NATURE OF THE CONTESTED DOCUMENT AND AS TO WHETHER THE INTERVENERS OBTAINED IT BY PROPER MEANS . IN THE CIRCUMSTANCES , THE DOCUMENT MUST BE REMOVED FROM THE FILE , TOGETHER WITH THE QUOTATIONS FROM IT INCLUDED IN THE INTERVENING PARTIES ' STATEMENT .

SUBSTANCE

17 BEFORE EXAMINING THE APPLICANTS ' ARGUMENTS , IT IS APPROPRIATE TO INDICATE THE PRINCIPLES WHICH , ACCORDING TO THE CASE-LAW OF THE COURT , GOVERN THE NON-CONTRACTUAL LIABILITY OF THE COMMUNITY .

18 IN ITS JUDGMENT OF 28 APRIL 1971 ( CASE 4/69 LUTTICKE ( 1971 ) ECR 325 ), WHICH HAS SINCE BEEN CONFIRMED ON NUMEROUS OCCASIONS ( SEE IN PARTICULAR THE JUDGMENT OF 2 JULY 1974 , HOLTZ & WILLEMSEN , CITED ABOVE , PARAGRAPH 7 OF THE DECISION ), THE COURT MADE CLEAR THAT UNDER THE SECOND PARAGRAPH OF ARTICLE 215 AND THE GENERAL PRINCIPLES TO WHICH THAT PROVISION REFERS , COMMUNITY LIABILITY DEPENDS ON THE COINCIDENCE OF A SET OF CONDITIONS AS REGARDS THE UNLAWFULNESS OF THE ACTS ALLEGED AGAINST THE INSTITUTIONS , THE FACT OF DAMAGE AND THE EXISTENCE OF A DIRECT LINK IN THE CHAIN OF CAUSALITY BETWEEN THE WRONGFUL ACT AND THE DAMAGE COMPLAINED OF .

19 THE MEASURES WHICH , ACCORDING TO THE APPLICANTS , GAVE RISE TO THE ALLEGED DAMAGE ARE LEGISLATIVE MEASURES . WITH REGARD TO SUCH MEASURES , ACCORDING TO A SIMILARLY CONSISTENT SERIES OF DECISIONS OF THE COURT , THE COMMUNITY DOES NOT INCUR LIABILITY UNLESS A SUFFICIENTLY SERIOUS BREACH OF A SUPERIOR RULE OF LAW FOR THE PROTECTION OF THE INDIVIDUAL HAS OCCURRED ( JUDGMENT OF 2 DECEMBER 1971 , CASE 5/71 ZUCKERFABRIK SCHOPPENSTEDT ( 1971 ) ECR 975 ).

20 REGARD MUST BE HAD TO THESE REQUIREMENTS WHEN THE ACTIONS ARE EXAMINED . ACCORDINGLY , IT IS APPROPRIATE TO EXAMINE SEPARATELY , ON THE ONE HAND , THE QUESTION WHETHER THE FIXING , BY MEASURES ADOPTED BY THE COUNCIL AND THE COMMISSION , OF THE THRESHOLD PRICE FOR DURUM WHEAT FOR THE PERIOD IN QUESTION IS VITIATED BY ILLEGALITY IN THE LIGHT OF THE CRITERIA INDICATED ABOVE , AND ON THE OTHER HAND , WHETHER THE APPLICANTS ARE ABLE TO PROVE DAMAGE CAUSALLY RELATED TO THE CONTESTED MEASURES .

OBJECTIONS REGARDING THE FIXING OF THE THRESHOLD PRICE FOR DURUM WHEAT FOR THE YEAR 1979

21 THE APPLICANTS PUT FORWARD WITH REGARD TO THIS SUBJECT A NUMBER OF ECONOMIC AND LEGAL CONSIDERATIONS INTENDED TO DEMONSTRATE THAT THE COUNCIL AND THE COMMISSION BREACHED THE RULES OF COMMUNITY LAW IN VARIOUS WAYS BY FIXING THE THRESHOLD PRICE FOR DURUM WHEAT AT THE TIME IN QUESTION ON THE BASIS OF A COMPARISON WITH THE PRICE OF COMMON WHEAT .

22 THEY STATE THAT , IN THE PAST , THE IMPORT PRICE FOR DURUM WHEAT WAS CLOSE TO THE PRICE OF COMMON WHEAT UNTIL , IN 1974 , A CONSIDERABLE PRICE RISE ON THE WORLD MARKET LED THE COUNCIL TO RAISE THE THRESHOLD PRICE FOR DURUM WHEAT CONSIDERABLY , THE RATIO BETWEEN THE PRICE OF COMMON WHEAT AND THAT OF DURUM WHEAT BEING AT THAT TIME 100 : 151.2 . DESPITE THE FACT THAT THE PRICES HAVE SINCE DRAWN CLOSER ON THE WORLD MARKET , THE RATIO BETWEEN THEM NOT EXCEEDING APPROXIMATELY 100 : 110 , THE COUNCIL HAS REDUCED ONLY VERY SLOWLY THE GAP BETWEEN THE TWO PRICES WHICH , AT THE TIME IN QUESTION , WAS 100 : 138.5 IN THE COMMUNITY . THIS DISPARITY OF PRICES GAVE RISE , IN THE MANUFACTURE OF PASTA PRODUCTS , TO A TENDENCY TO SUBSTITUTE COMMON WHEAT FOR DURUM WHEAT , LEADING IN CONSEQUENCE TO A CONSIDERABLE REDUCTION IN THE VOLUME OF PRODUCTION OF DURUM WHEAT MILLS AND A DETERIORATION IN THE QUALITY OF PASTA PRODUCTS , RESULTING IN A WEAKENING OF THE COMPETITIVE POSITION OF THE GERMAN MANUFACTURERS IN THE MARKET . THIS TENDENCY WAS ACCENTUATED BY THE FACT THAT THE GERMAN MANUFACTURERS ENCOUNTERED INCREASINGLY STRONG COMPETITION IN THEIR MARKET FROM PASTA MANUFACTURERS OF OTHER MEMBER STATES , AND IN PARTICULAR ITALIAN MANUFACTURERS , WHOSE PRODUCTION CENTRES , BEING NEAR TO THE GROWING AREAS OF DURUM WHEAT IN THE COMMUNITY WERE ABLE TO OBTAIN THE SUPPLIES AT PRICES CLOSE TO THE INTERVENTION PRICE , WHEREAS THE GERMAN MANUFACTURERS OBTAINED SUPPLIES OF DURUM WHEAT MEAL OF EXCLUSIVELY AMERICAN ORIGIN , IMPORTED AT THE THRESHOLD PRICE .

23 FROM THE LEGAL POINT OF VIEW , THE APPLICANTS RELY UPON FOUR GROUNDS , NAMELY DISREGARD OF THE PRICE POLICY EMBODIED IN THE BASIC REGULATION ( EEC ) NO 2727/75 OF THE COUNCIL OF 29 OCTOBER 1975 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OFFICIAL JOURNAL 1975 , L 281 , P . 1 ), BREACH OF THE PRINCIPLE OF NON-DISCRIMINATION EMBODIED IN THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE TREATY , BREACH OF THE PRINCIPLES FOR THE FIXING OF AGRICULTURAL PRICES AS LAID DOWN IN THE THIRD SUBPARAGRAPH OF ARTICLE 40 ( 3 ) AND , FINALLY , BREACH OF THE PRINCIPLE OF PROPORTIONALITY .

24 IN THE FIRST PLACE , THE APPLICANTS DRAW ATTENTION TO THE FACT THAT , IN THE BASIC REGULATION NO 2727/75 THE COUNCIL RECOGNIZED , IN THE EIGHTH RECITAL IN THE PREAMBLE THERETO , THAT IT WAS NECESSARY TO RESPECT SO FAR AS POSSIBLE WITHIN THE COMMUNITY THE RATIO EXISTING NORMALLY ON THE WORLD MARKET BETWEEN DURUM WHEAT AND COMMON WHEAT PRICES , BECAUSE OF THE INTERCHANGEABILITY OF THOSE TWO PRODUCTS . THAT POLICY WAS INDEED FOLLOWED FOR A LONG PERIOD AND IT WAS ONLY AFTER THE 1974 PRICE RISE CAUSED BY SHORT-TERM ECONOMIC FACTORS , WHICH IN THE MEANTIME WAS REABSORBED ON THE WORLD MARKET , THAT THE COUNCIL FOLLOWED A NEW POLICY , CONSISTING IN MAINTAINING AN ABNORMAL VARIANCE BETWEEN THE TWO PRICES IN QUESTION , THUS PROVOKING A SUBSTITUTIONAL EFFECT REGARDED AS ABNORMAL IN THE TERMS OF THE REGULATION . THE APPLICANTS ARE OF THE VIEW THAT THE COUNCIL WAS OBLIGED TO MAKE EVERY EFFORT TO ELIMINATE THAT ABNORMAL VARIANCE .

25 ACCORDING TO THE APPLICANTS , THE COURT RECOGNIZED THE JUSTIFICATION OF THAT REASONING IN ITS JUDGMENT OF 13 NOVEMBER 1973 ( JOINED CASES 63 TO 69/72 , WERHAHN AND OTHERS ( 1973 ) ECR 1229 ), IN WHICH IT STATED :

' ' THERE IS A RELATIONSHIP BETWEEN THE COST PRICE OF DURUM AND OF COMMON WHEAT , THE FORMER BEING GENERALLY APPROXIMATELY 20 % HIGHER THAN THE LATTER .

AT THE RISK OF SEEING AN UNDESIRABLE KIND OF INTERFERENCE MAKING ITS APPEARANCE ON THE MARKET IN THESE CEREALS , THIS RELATIONSHIP MUST BE TAKEN INTO ACCOUNT IN FIXING THEIR RESPECTIVE THRESHOLD PRICES ' ' .

26 WHAT IS REQUIRED IN THIS CASE , IN ACCORDANCE WITH THE ABOVE STATEMENTS OF THE COURT , IS TO DEFINE THE ' ' FAIR ' ' PRICE RATIO BETWEEN DURUM WHEAT AND COMMON WHEAT ; ACCORDING TO THE PRINCIPLES RECOGNIZED IN THE RECITALS IN THE PREAMBLE TO THE BASIC REGULATION NO 2727/75 , THAT RATIO SHOULD , AS FAR AS POSSIBLE , BE SET AT THE LEVEL OF THE RATIO ASCERTAINED ON THE WORLD MARKET .

27 IN THE SECOND PLACE , THE APPLICANTS STATE THAT THE FIXING OF THE THRESHOLD PRICE FOR DURUM WHEAT AT AN EXCESSIVE LEVEL INVOLVES AN INFRINGEMENT OF THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE TREATY , IN THE TERMS OF WHICH THE COMMON ORGANIZATION OF THE MARKET ' ' SHALL EXCLUDE ANY DISCRIMINATION BETWEEN PRODUCERS OR CONSUMERS WITHIN THE COMMUNITY ' ' . BY FIXING THE THRESHOLD PRICE FOR DURUM WHEAT AT AN EXCESSIVELY HIGH LEVEL , THE COUNCIL HAS CREATED SUCH DISCRIMINATION AGAINST MILLERS AND AGAINST MANUFACTURERS OF PASTA-PRODUCTS IN THE MEMBER STATES WHICH DO NOT PRODUCE DURUM WHEAT ; THOSE PRODUCERS HAVE HAD TO IMPORT ALL THEIR DURUM WHEAT REQUIREMENTS FROM NON-MEMBER COUNTRIES , WHEREAS THE MILLERS OF DURUM WHEAT AND THE MANUFACTURERS OF PASTA-PRODUCTS IN THE COUNTRIES WHICH GROW THAT WHEAT , FRANCE AND ITALY , ARE ABLE TO OBTAIN THEIR RAW MATERIAL LOCALLY , AT A CONSIDERABLY LOWER PRICE .

28 IN THE THIRD PLACE , THE APPLICANTS STATE THAT THE FIXING OF THE THRESHOLD PRICE FOR DURUM WHEAT AT AN EXCESSIVELY HIGH LEVEL BREACHES THE PRINCIPLES GOVERNING THE FIXING OF PRICES , AS LAID DOWN IN THE THIRD SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE TREATY , IN THE TERMS OF WHICH IN THE COMMON PRICE POLICY ' ' SHALL BE BASED ON COMMON CRITERIA AND UNIFORM METHODS OF CALCULATION ' ' . THEY ALSO REFER , IN THAT CONTEXT , TO ARTICLE 39 ( 1 ) ( C ), WHICH STATES THAT THE OBJECT OF THE COMMON AGRICULTURAL POLICY IS , INTER ALIA , ' ' TO STABILIZE MARKETS ' ' . THOSE PROVISIONS PLACE AN OBLIGATION ON THE COUNCIL TO FIX THE PRICES IN ACCORDANCE WITH ' ' RATIONAL VIEWS ' ' AND NOT TO DETERMINE THEM IN AN ARBITRARY FASHION ON THE BASIS OF PURELY POLITICAL CONSIDERATIONS WITH THE AIM OF FAVOURING CERTAIN GROUPS OF PRODUCERS WITHIN THE COMMUNITY AT THE EXPENSE OF OTHER GROUPS , SUCH AS THAT WHICH INCLUDES THE APPLICANTS .

29 FINALLY , THE APPLICANTS CONSIDER THAT THE COUNCIL HAS BREACHED THE PRINCIPLE OF PROPORTIONALITY , IN SO FAR AS IT HAD THE OPPORTUNITY , INSTEAD OF FIXING AN ARTIFICIALLY HIGH THRESHOLD PRICE , TO ATTAIN ITS OBJECTIVE BY OTHER MEANS WHICH WERE LESS DISADVANTAGEOUS TO THE APPLICANTS , SUCH AS FOR EXAMPLE REGIONALIZATION OF THRESHOLD PRICES OR INDEED AN EXTENSION OF AID TO PRODUCERS IN THE COMMUNITY , SO AS TO DIMINISH THE EFFECT ON THEM OF A REDUCTION IN THE THRESHOLD PRICE .

30 THE COUNCIL AND THE COMMISSION , SUPPORTED BY THE ITALIAN GOVERNMENT , EMPHASIZE IN GENERAL THE WIDE DISCRETIONARY POWERS VESTED IN THE COMMUNITY INSTITUTIONS IN THE MATTER OF AGRICULTURAL POLICY AND ADAPTATION OF THAT POLICY TO THE CIRCUMSTANCES , IN THE LIGHT OF ALL THE GUIDELINES LAID DOWN IN ARTICLE 39 OF THE TREATY .

31 IN RESPONSE TO THE FIRST SUBMISSION MADE BY THE APPLICANTS , THE DEFENDANT INSTITUTIONS EMPHASIZE THAT THERE IS A FUNDAMENTAL DIFFERENCE BETWEEN THE WORLD MARKET AND THE COMMUNITY MARKET , IN SO FAR AS THE WORLD MARKET IS GOVERNED BY THE UNRESTRICTED INTERACTION OF SUPPLY AND DEMAND , WHEREAS THE COMMUNITY MARKET HAS A COMMON ORGANIZATION WHICH IS INTENDED TO MAINTAIN PRICE LEVELS IN CONFORMITY WITH THE POLICY OBJECTIVES LAID DOWN BY THE COMMUNITY INSTITUTIONS WITHIN THE FRAMEWORK OF THE TREATY . IN THIS CASE , IT IS APPROPRIATE TO HAVE REGARD TO THE FACT THAT THE COMMUNITY MARKET HAS CHRONIC OVER-PRODUCTION OF COMMON WHEAT AND THAT THERE IS A SHORTFALL OF DURUM WHEAT . THE POLICY FOLLOWED BY THE INSTITUTIONS CONSISTS THEREFORE IN FAVOURING DEVELOPMENT OF DURUM WHEAT PRODUCTION , BY AN APPROPRIATE PRICE POLICY , WHILST MAINTAINING THE PRODUCTION OF COMMON WHEAT TO A REASONABLE EXTENT .

32 AS REGARDS THE COMPLAINTS OF DISCRIMINATION AND INFRINGEMENT OF THE RULES RELATING TO THE FIXING OF AGRICULTURAL PRICES , LAID DOWN IN THE SECOND AND THIRD SUBPARAGRAPHS OF ARTICLE 40 ( 3 ), THE DEFENDANT INSTITUTIONS DRAW ATTENTION TO THE FACT THAT THE FIXING OF CEREAL PRICES TAKES PLACE WITHIN THE CONTEXT OF FREE CIRCULATION BOTH OF RAW MATERIALS AND OF SECONDARY PRODUCTS AND THAT THEREFORE , FROM THE COMMUNITY POINT OF VIEW , THERE IS NOTHING TO PREVENT GERMAN PRODUCERS FROM OBTAINING SUPPLIES IN OTHER MEMBER STATES OF THE COMMUNITY . THEY DRAW ATTENTION TO THE FACT THAT NEITHER THE FRENCH MARKET NOR THE ITALIAN MARKET IS SELF-SUFFICIENT AND THAT PRODUCERS IN THOSE STATES MUST ALSO , TO A CONSIDERABLE EXTENT , USE DURUM WHEAT IMPORTED FROM NON-MEMBER COUNTRIES , A CIRCUMSTANCE WHICH HAS GIVEN RISE TO A TENDENCY IN THE PRODUCING STATES FOR THE PRICES OF THE INDIGENOUS PRODUCT TO MOVE TOWARDS THE THRESHOLD PRICE AND NOT , AS ASSERTED BY THE APPLICANTS , TOWARDS THE INTERVENTIONS PRICE .

33 AS REGARDS THE ALLEGED BREACH OF THE PRINCIPLE OF PROPORTIONALITY , THE INSTITUTIONS DRAW ATTENTION TO THE FACT THAT THE OPTIONS PROPOSED BY THE APPLICANTS ARE IMPRACTICABLE ; REGIONALIZATION OF THRESHOLD PRICES WOULD BE IN DIRECT CONFLICT WITH UNITY OF THE COMMON MARKET , WHEREAS EXTENSION OF THE AIDS SYSTEM WOULD IMPOSE NEW AND INTOLERABLE BURDENS UPON THE COMMUNITY BUDGET .

34 FINALLY , THE DEFENDANT INSTITUTIONS EMPHASIZE THAT THE LEGAL RULES RELIED UPON BY THE APPLICANTS ARE NOT IN ANY CASE CLASSIFIABLE AS ' ' SUPERIOR RULES OF LAW FOR THE PROTECTION OF THE INDIVIDUAL ' ' , A CONDITION IMPOSED BY THE CASE-LAW OF THE COURT IN CASES OF ACTIONS FOR DAMAGES IN RESPECT OF LEGISLATIVE MEASURES ADOPTED BY THE COMMUNITY .

35 THE FRENCH ASSOCIATIONS , INTERVENING IN SUPPORT OF THE COUNCIL AND THE COMMISSION , LAY PARTICULAR STRESS ON THE FACT THAT THE STATEMENTS MADE BY THE APPLICANTS REGARDING PRICE RATIOS ON THE WORLD MARKET ARE NOT BASED ON CORRECT INFORMATION ; THE DEVELOPMENT OF THE WORLD MARKET IS IN FACT INFLUENCED BY A MULTIPLICITY OF DIVERSE FACTORS , OF A STRUCTURAL AND CONJUNCTURAL NATURE . IN PARTICULAR , THEY CRITICIZE APPLICANTS FOR CHOOSING REPRESENTATIVE PRICES FOR COMMON WHEAT AND DURUM WHEAT ARBITRARILY WITH A VIEW TO ARRIVING AT THE PRICE RATIO OF 100 : 110 WHICH THEY DESCRIBE AS ' ' JUSTIFIED ' ' .

36 THE COURT IS OF THE OPINION THAT THE ARGUMENTS EXPOUNDED BY THE APPLICANTS ARE NOT OF SUCH A NATURE AS TO RAISE ANY DOUBT AS TO THE LAWFULNESS OF THE MEASURES ADOPTED BY THE COUNCIL AND THE COMMISSION IN RESPECT OF WHICH THE ACTIONS HAVE BEEN BROUGHT .

37 IT SHOULD BE REMEMBERED THAT , IN DETERMINING THEIR POLICY IN THIS AREA , THE COMPETENT COMMUNITY INSTITUTIONS ENJOY WIDE DISCRETIONARY POWERS REGARDING NOT ONLY ESTABLISHMENT OF THE FACTUAL BASIS OF THEIR ACTION BUT ALSO DEFINITION OF THE OBJECTIVES TO BE PURSUED , WITHIN THE FRAMEWORK OF THE PROVISIONS OF THE TREATY , AND THE CHOICE OF THE APPROPRIATE MEANS OF ACTION .

38 AS REGARDS THE APPLICANTS ' FIRST SUBMISSION , IT SHOULD BE NOTED THAT THE DEVELOPMENTS IN THE STATE OF THE WORLD MARKET AND OF THE COMMUNITY MARKET PROVIDE NO GROUNDS FOR INFERRING THAT THERE IS A MANIFEST ERROR IN THE ASSESSMENT MADE BY THE COMMISSION AND THE COUNCIL OF , ON THE ONE HAND , THE RELEVANT WORLD-MARKET DATA AND , ON THE OTHER , THE PRODUCTION CONDITIONS PECULIAR TO THE COMMUNITY MARKET . IN PARTICULAR , THERE ARE NO GROUNDS FOR REGARDING AS A CONSTANT FACTOR THE COURT ' S FINDING IN ITS JUDGMENT OF 13 NOVEMBER 1973 , REGARDING THE COMPARATIVE PRODUCTION COSTS OF COMMON WHEAT AND DURUM WHEAT FOR THE PERIOD UNDER CONSIDERATION .

39 AS REGARDS THE ECONOMIC OBJECTIVE PURSUED BY THE COUNCIL IN FIXING THE VARIANCE BETWEEN THE THRESHOLD PRICE FOR DURUM WHEAT AND THE PRICE FOR COMMON WHEAT , THERE IS LIKEWISE NOTHING TO INDICATE THAT THE INSTITUTIONS HAVE OVERSTEPPED THE LIMITS OF THEIR DISCRETIONARY POWERS IN DETERMINING THAT VARIANCE , IF IT IS BORNE IN MIND THAT THERE IS CHRONIC OVER-PRODUCTION OF COMMON WHEAT AND A NEED TO STIMULATE COMMUNITY PRODUCTION OF DURUM WHEAT . THIS CHOICE HAVING BEEN MADE BY THE COUNCIL , IN THE LEGITIMATE EXERCISE OF ITS POWERS OF DISCRETION , ITS REPERCUSSIONS MUST BE ACCEPTED BY THE MANUFACTURERS OF SECONDARY PRODUCTS , AS THEY MUST BY THE VARIOUS GROUPS OF PRODUCERS CONCERNED .

40 THE FACT THAT BEFORE THE CHANGES IN THE WORLD-MARKET CONDITIONS OCCURRED IN 1974 THE COUNCIL APPLIED A DIFFERENT POLICY FOR A LONG PERIOD DOES NOT CONFER UPON THE PRODUCERS AND PROCESSING UNDERTAKINGS INVOLVED ANY ENTITLEMENT TO PRESERVATION OF SUCH ADVANTAGES AS THE ESTABLISHED POLICY MAY HAVE ALLOWED THEM ; NOR DOES THAT FACT IMPOSE ANY LIMITATION ON THE FREEDOM OF THE COMMISSION AND THE COUNCIL TO ADJUST THEIR POLICY IN STEP WITH DATA REFLECTING THE EVOLUTION OF THE MARKET AND WITH THE OBJECTIVES PURSUED . IN THIS CONNECTION IT IS SUFFICIENT TO REFER TO THE JUDGMENTS OF 13 NOVEMBER 1973 ( CITED ABOVE , PARAGRAPH 12 OF THE DECISION ) AND 2 JUNE 1976 ( JOINED CASES 56 TO 60/74 KAMPFFMEYER AND OTHERS ( 1976 ) ECR 711 , PARAGRAPH 13 OF THE DECISION ). IN PARTICULAR , THE INTENTION EVINCED IN THE EIGHTH RECITAL IN THE PREAMBLE TO REGULATION NO 2727/75 IS NOT TO BE REGARDED AS THE EXPRESSION OF A RULE OF LAW OF WHICH OBSERVANCE IS THEREFORE MANDATORY FOR THE INSTITUTIONS .

41 WITH REGARD TO THE ARGUMENT BASED ON ARTICLE 39 ( 1 ) ( C ) OF THE TREATY , IT SHOULD BE POINTED OUT IN THE FIRST PLACE THAT ACCORDING TO A CONSISTENT LINE OF DECISIONS OF THE COURT , THE INSTITUTIONS MUST RECONCILE THE VARIOUS OBJECTIVES LAID DOWN BY ARTICLE 39 , A FACT WHICH PRECLUDES THE ISOLATION OF ANY ONE OF THOSE OBJECTIVES , SUCH AS THE STABILIZATION OF CERTAIN SITUATIONS WHICH HAVE BECOME ESTABLISHED , IN SUCH A WAY AS TO RENDER IMPOSSIBLE THE REALIZATION OF OTHER OBJECTIVES SUCH AS , IN THIS CASE , THE RATIONAL DEVELOPMENT OF AGRICULTURAL PRODUCTION AND SECURITY OF SUPPLIES , WHERE , AS IN THE CASE OF DURUM WHEAT , THERE IS A SHORTFALL OF THE PRODUCT CONCERNED .

42 AS REGARDS THE SECOND AND THIRD SUBMISSIONS , RELATING TO THE PRINCIPLE OF NON-DISCRIMINATION AND TO RULES FOR THE FORMATION OF AGRICULTURAL PRICES LAID DOWN IN ARTICLE 40 ( 3 ), THE ARGUMENTS ARE UNACCEPTABLE IN THE CONTEXT OF A COMMON ORGANIZATION OF THE MARKET BASED ON FREEDOM OF TRADE WITHIN THE FRAMEWORK OF A COMMON PRODUCTION-PRICE SYSTEM . THAT ORGANIZATION ENABLES ALL USERS OF DURUM WHEAT TO OBTAIN SUPPLIES ON EQUAL TERMS , IN THE CASE BOTH OF THE RAW MATERIAL AND OF SECONDARY PRODUCTS SUCH AS MEAL , SUBJECT TO THE COMMUNITY PREFERENCE WHICH IS REFLECTED IN THE VARIANCE BETWEEN THE INTERVENTION PRICE AND THE THRESHOLD PRICE . IT SHOULD BE NOTED THAT THE LATTER QUESTION IS NOT CONTESTED IN THESE PROCEEDINGS .

43 THE APPLICANTS ' FOURTH SUBMISSION , ALLEGING DISREGARD OF THE SO-CALLED PRINCIPLE OF ' ' PROPORTIONALITY ' ' , IS BASED ON THE FACT THAT , IN DETERMINING THE MEANS OF REGULATING THE MARKET , THE COUNCIL HAS CHOSEN A METHOD - THE FIXING OF THE PRICE OF DURUM WHEAT AT THE LEVEL STATED - WHICH HAS PUT THEM AT AN UNDUE DISADVANTAGE .

44 IT SHOULD BE POINTED OUT IN THIS CONNECTION THAT , IN ITSELF , RECOURSE TO DIFFERENTIATION OF THE VARIOUS PRICES ADMINISTERED BY THE COMMUNITY SEEMS TO BE A METHOD PARTICULARLY WELL-SUITED TO THE GENERAL MACHINERY OF THE MARKET ORGANIZATION AND TO THE OBJECTIVE PURSUED IN THIS CASE , NAMELY DEVELOPMENT OF DURUM WHEAT GROWING WITH A VIEW TO IMPROVING THE STRUCTURE OF COMMUNITY PRODUCTION AS A WHOLE . THE DEFENDANT INSTITUTIONS HAVE STATED CORRECTLY THAT THE COURSES OF ACTION ADVOCATED BY THE APPLICANTS ARE UNACCEPTABLE , SINCE ONE - NAMELY DIFFERENTIATION OF THE THRESHOLD PRICE AS BETWEEN THE SOUTH AND THE NORTH OF THE COMMUNITY - IS INCOMPATIBLE WITH UNITY OF THE MARKET AND THE OTHER - NAMELY EXTENSION OF AID FOR DURUM WHEAT GROWING - IS CONTRADICTORY IN A MARKET-ECONOMY SYSTEM AND , MOREOVER , EXCESSIVELY ONEROUS FOR EVERYBODY .

45 IT IS THEREFORE APPROPRIATE TO CONCLUDE THAT , FAR FROM HAVING PROVED A ' ' SERIOUS BREACH OF A SUPERIOR RULE OF LAW FOR THE PROTECTION OF THE INDIVIDUAL ' ' , THE APPLICANTS HAVE NOT SUCCEEDED IN DEMONSTRATING ANY UNLAWFUL ACT WHATSOEVER ON THE PART OF THE COUNCIL OR THE COMMISSION .

DAMAGE AND CAUSAL RELATIONSHIP

46 THE APPLICANTS CLAIM THE FOLLOWING SUMS FROM THE COMMUNITY BY WAY OF DAMAGES :

DM 1 786 047.50 ( CASE 197/80 ), DM 1 087 692.80 ( CASE 198/80 ), DM 910 850.73 ( CASE 199/80 ), DM 1 020 524 ( CASE 200/80 ), DM 2 204 106.30 ( CASE 243/80 ), DM 260 172.78 ( CASE 245/80 ) AND DM 967 750 ( CASE 247/80 ).

47 THEY CALCULATE THE DAMAGES CLAIMED BY MULTIPLYING THE TONNAGES OF MEAL SOLD TO THE MANUFACTURERS OF PASTA PRODUCTS BY THE DIFFERENCE BETWEEN WHAT THEY REGARD AS THE ' ' FAIR PRICE ' ' FOR DRUM WHEAT AND THE IMPORT PRICE RESULTING FROM APPLICATION OF THE COMMUNITY REGULATIONS , AFTER DEDUCTION OF THE MARGIN WHICH THEY ACKNOWLEDGE HAVING PASSED ON TO THEIR PURCHASERS . THEY EMPHASIZE THAT THIS CALCULATION TAKES NO ACCOUNT EITHER OF THEIR LOSS OF PROFIT OR OF THE DECREASE IN THEIR BUSINESS .

48 THE APPLICANT BIRKEL MAKES A SIMILAR CALCULATION , DRAWING ATTENTION ALSO TO THE FACT THAT IT HAS NOT BEEN IN A POSITION TO PASS ON TO THE PURCHASERS OF ITS PRODUCTS THAT PART OF THE PRICE WHICH EXCEEDS THE ' ' FAIR PRICE ' ' .

49 THE DEFENDANT INSTITUTIONS REGARD THIS METHOD OF CALCULATION AS UNACCEPTABLE BECAUSE IT IS BASED ON A FACTOR - THE ' ' FAIR PRICE ' ' OF DURUM WHEAT - WHICH IS CHOSEN ARBITRARILY BY THE APPLICANTS . MOREOVER , AND THIS POINT HAS BEEN DEVELOPED IN GREATER DETAIL BY THE ASSOCIATIONS WHICH INTERVENED IN THEIR SUPPORT , THEY DENY THE EXISTENCE OF ANY CAUSAL RELATION BETWEEN THE ALLEGED DAMAGE AND THE FIXING OF THE PRICES BY THE COUNCIL AND THE COMMISSION . THEY STATE THAT THE TRUE CAUSE OF ANY LOSSES SUFFERED BY THE APPLICANTS IS TO BE FOUND IN THE FACT THAT UNLIKE OTHER MEMBER STATES , IN PARTICULAR FRANCE AND ITALY , WHOSE LEGISLATION PROHIBITS THE USE OF COMMON WHEAT FOR THE MANUFACTURE OF PASTAS ( THE SO-CALLED LAW ' ' ON PURITY REQUIREMENTS ' ' ), SUCH PROHIBITION IS UNKNOWN IN THE FEDERAL REPUBLIC OF GERMANY , SO THAT THE GERMAN MANUFACTURERS ARE FREE TO SUBSTITUTE AT WILL COMMON WHEAT FOR DURUM WHEAT IN THE MANUFACTURE OF PASTA PRODUCTS . SINCE THIS SUBSTITUTION HAS THE EFFECT OF LOWERING THE QUALITY OF PASTA PRODUCTS , AS IS RECOGNIZED IN A STUDY PRODUCED BY THE APPLICANTS THEMSELVES , THE EFFECT OF THE ABSENCE OF SUCH LEGISLATION IN THE FEDERAL REPUBLIC OF GERMANY IS TO REDUCE THE GERMAN INDUSTRY ' S CAPABILITY FOR COMPETING WITH PASTA PRODUCTS ORIGINATING IN COUNTRIES WHERE A LAW ON PURITY REQUIREMENTS EXISTS .

50 THE COURT IS OF THE OPINION THAT THE APPLICANTS HAVE INDEED FAILED TO PROVIDE ANY CONVINCING EVIDENCE AS TO THE ACTUAL OCCURRENCE OF THE DAMAGE WHICH THEY CLAIM TO HAVE SUFFERED . IT IS SUFFICIENT TO STATE THAT THE METHOD OF CALCULATION ADOPTED BY THEM IS BASED ON ONE FACTOR - THE ' ' FAIR PRICE ' ' OF DURUM WHEAT - AT WHICH THEY HAVE ARRIVED ON THE BASIS OF PURELY SUBJECTIVE ECONOMIC CONSIDERATIONS , GLOSSING OVER THE FACT THAT THEY OPERATE WITHIN AN ECONOMIC FRAMEWORK DETERMINED BY A COMMON ORGANIZATION OF THE MARKET AND NOT IN THE CONTEXT OF THE WORLD MARKET . THE CALCULATIONS THEY HAVE MADE ON THE BASIS OF THAT INITIAL FACTOR MOREOVER INCORPORATE MAGNITUDES WHICH ARE DEPENDENT , FOR EACH OF THEM , UPON THE INDIVIDUAL CONDUCT OF THEIR BUSINESS , AND AS SUCH CANNOT BE VERIFIED .

51 AS FAR AS CAUSALITY IS CONCERNED , THE APPLICANTS HAVE NOT SUCCEEDED IN ESTABLISHING THE EXISTENCE OF A RELATIONSHIP BETWEEN , ON THE ONE HAND , THE MEASURES ADOPTED BY THE COUNCIL AND THE COMMISSION WHICH , THEY ALLEGE , GAVE RISE TO THE LOSSES THEY HAVE RECORDED AND , ON THE OTHER HAND , THE DAMAGE THEY CLAIM TO HAVE SUFFERED . TWO OBSERVATIONS ARE APPROPRIATE ON THIS MATTER .

52 IN THE FIRST PLACE , THE DATA FURNISHED BY THE APPLICANTS THEMSELVES WITH A VIEW TO ESTABLISHING THAT THEY EFFECTIVELY SUFFERED DAMAGE SHOW THAT THE FINANCIAL RESULT THEY HAVE OBTAINED FROM THEIR BUSINESS IS CONDITIONAL UPON A SERIES OF FACTORS WHICH DEPEND ON THE WAY THEY CONDUCT THEIR INDUSTRIAL AND COMMERCIAL ACTIVITY AND WHICH , APART FROM NOT BEING VERIFIABLE , AS HAS JUST BEEN STATED , ARE NOT ATTRIBUTABLE , AS SUCH , TO THE COMMUNITY .

53 FURTHERMORE , IT HAS BECOME CLEAR FROM THE EXPLANATIONS GIVEN IN RESPONSE TO QUESTIONS PUT BY THE COURT THAT THE REAL CAUSE OF THE DIFFICULTIES SUFFERED BY THE APPLICANTS IS IN THE FIRST PLACE THE ABSENCE OF LEGISLATION IN THE FEDERAL REPUBLIC OF GERMANY REQUIRING THE USE OF ONLY DURUM WHEAT IN THE MANUFACTURE OF PASTA PRODUCTS . IT SHOULD BE RECALLED THAT A DIRECTIVE TO THAT EFFECT WAS PROPOSED TO THE COUNCIL BY THE COMMISSION AS EARLY AS 1968 BUT THAT THE PROPOSAL WAS NOT ACTED UPON ( SEE JOURNAL OFFICIEL 1968 , C 136 , P . 16 ).

54 THE ADOPTION OF A COMMON RULE OF THAT KIND BY ALL THE MEMBER STATES WOULD NO DOUBT HAVE ENSURED THAT ALL PRODUCERS OF DURUM WHEAT MEAL HAD A MORE STEADY OUTLET FOR THEIR GOODS . IN THE FEDERAL REPUBLIC OF GERMANY AND IN OTHER MEMBER STATES WHERE THERE IS NO SUCH PROVISION , SUBSTITUTION OF A PROPORTION OF COMMON WHEAT FOR DURUM WHEAT IN THE MANUFACTURE OF PASTA PRODUCTS , WITH THE CONSEQUENTIAL REDUCTION IN THE ACTIVITY OF DURUM WHEAT MILLERS , IS AN UNAVOIDABLE RESULT OF THE LEGISLATIVE POSITION IN THOSE STATES . THE COMMUNITY HAS NO OBLIGATION , IN DETERMINING ITS CEREALS PRICE POLICY , TO FIX THE COMPARATIVE LEVEL OF DURUM WHEAT AND COMMON WHEAT PRICES SO AS TO PREVENT SUCH SUBSTITUTION IN THOSE PLACES WHERE IT IS LEGALLY PERMITTED . ONLY BY HARMONIZATION OF NATIONAL LEGISLATION WOULD IT BE POSSIBLE TO REMEDY THE DIFFICULTY REFERRED TO BY THE APPLICANTS .

55 THE FOREGOING CONSIDERATIONS ARE SUFFICIENT TO SHOW THAT THE APPLICANTS HAVE NOT ESTABLISHED A RELATIONSHIP OF CAUSE AND EFFECT BETWEEN THE POLICY PURSUED BY THE COMMUNITY INSTITUTIONS IN FIXING WHEAT PRICES , AS EMBODIED IN THE CONTESTED REGULATIONS , AND THE DETERIORATION OF THEIR POSITION ON THE DURUM-WHEAT OR PASTA-PRODUCTS MARKETS .

56 IT IS EVIDENT FROM THE FOREGOING ANALYSIS THAT THE APPLICANTS HAVE NOT SUBSTANTIATED ANY OF THE CONDITIONS SET OUT ABOVE UPON FULFILMENT OF WHICH THE LIABILITY OF THE COMMUNITY DEPENDS . THE APPLICATIONS MUST THEREFORE BE DISMISSED .

COSTS

57 PURSUANT TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .

58 THE APPLICANTS AND THE INTERVENERS SOUBRY AND COPPENS , WHICH SUPPORTED THE APPLICANT SCHWABEN-NUDEL-WERKE B . BIRKEL SOHNE GMBH & CO . ARE THEREFORE JOINTLY AND SEVERALLY ORDERED TO PAY THE COSTS OF THE PROCEEDINGS .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATIONS .

2 . ORDERS THE APPLICANTS AND THE INTERVENING PARTIES WHO SUPPORTED THE APPLICANT IN CASE 247/80 JOINTLY AND SEVERALLY TO PAY THE COSTS , INCLUDING THE COSTS OF THE INTERVENING PARTIES WHO SUPPORTED THE DEFENDANTS .