61977J0012

1 . AGRICULTURE - CONJUNCTURAL POLICY - MONETARY COMPENSATORY AMOUNTS - EXEMPTION FROM THE CHARGE - DISCRETIONARY MEASURE - DISCRETIONARY POWER OF THE MEMBER STATES

( REGULATION NO 1608/74 OF THE COMMISSION )

2 . APPLICATION FOR DAMAGES - ACTION DIRECTED AGAINST NATIONAL MEASURES TAKEN IN IMPLEMENTATION OF COMMUNITY LAW - INADMISSIBILITY

( EEC TREATY , ARTS . 178 AND 215 , SECOND PARA .)

1 . IT FOLLOWS FROM REGULATION NO 1608/74 TAKEN AS A WHOLE THAT THE LATTER HAS GIVEN THE MEMBER STATES A MARGIN OF DISCRETION WHICH PERMITS THEM TO JUDGE THE APPLICATION TO EACH INDIVIDUAL CASE OF THE DISCRETIONARY MEASURE , INCLUDING THE CIRCUMSTANCES SUCH AS TO JUSTIFIY THE GRANT OR THE REFUSAL OF THE EXEMPTION FROM THE COMPENSATORY AMOUNTS .

2 . WHERE THE ACTION IS IN SUBSTANCE DIRECTED AGAINST MEASURES TAKEN BY THE NATIONAL AUTHORITIES PURSUANT TO PROVISIONS OF COMMUNITY LAW , THE CONDITIONS FOR INSTITUTING PROCEEDINGS BEFORE THE COURT OF JUSTICE UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY ARE NOT FULFILLED .

IN JOINED CASES 12 , 18 AND 21/77

DEBAYSER S.A . ( CASE 12/77 ),

SUCRES UNION S.A . ( CASE 18/77 ),

JEAN LION S.A . ( CASE 21/77 ),

HAVING THEIR REGISTERED OFFICES IN PARIS , REPRESENTED AND ASSISTED BY ROLAND AND LISE FUNCK-BRENTANO , ADVOCATES AT THE PARIS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES REUTER , 1 , RUE NOTRE DAME ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , PETER GILSDORF , ACTING AS AGENT , ASSISTED BY JACQUES DELMOLY , MEMBER OF THE LEGAL SERVICE , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF MARIO CERVINO , LEGAL ADVISER TO THE COMMISSION , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR DAMAGES UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY ,

1THE APPLICANTS CLAIM , BY THE PRESENT APPLICATIONS LODGED UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY , THAT THE COMMISSION SHOULD BE ORDERED TO PAY DAMAGES FOR THE LOSS WHICH THEY HAVE SUFFERED OWING TO THE FAILURE TO APPLY TO EXPORTS OF SUGAR CARRIED OUT ON THE BASIS OF BINDING CONTRACTS CONCLUDED AFTER 15 MARCH 1976 THE DISCRETIONARY MEASURE LAID DOWN IN ARTICLE 1 OF REGULATION ( EEC ) NO 1608/74 OF THE COMMISSION OF 26 JUNE 1974 ON SPECIAL PROVISIONS IN RESPECT OF MONETARY COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL 1974 , L 170 , P . 38 ).

2ARTICLE 1 OF REGULATION NO 1608/74 PROVIDES THAT : ' ' WHERE MONETARY COMPENSATORY AMOUNTS ARE INTRODUCED OR INCREASED AS A RESULT OF THE FIXING OR THE AMENDMENT OF THE CENTRAL RATE OR OF THE REPRESENTATIVE RATE OF THE CURRENCY OF A MEMBER STATE USED IN THE CONTEXT OF THE COMMON AGRICULTURAL POLICY , OR WHERE THE DECISION OF A MEMBER STATE TO PERMIT ITS CURRENCY TO FLOAT IN RELATION TO THE CURRENCIES OF THE MEMBER STATES WHERE THE FLUCTUATION OF THE RATES OF EXCHANGE IS KEPT WITHIN A MAXIMUM SPREAD OF 2.25% , THE MEMBER STATE IN QUESTION SHALL BE AUTHORIZED TO WAIVE , ON A DISCRETIONARY BASIS AND ACCORDING TO THE FOLLOWING CONDITIONS , THE MONETARY COMPENSATORY AMOUNT OR SO MUCH THEREOF AS CORRESPONDS TO THE INCREASE ' ' .

3ON THE OTHER HAND , ARTICLE 2 ( 1 ) OF THAT REGULATION SPECIFIES THAT : ' ' ARTICLE 1 SHALL APPLY ONLY TO IMPORTS AND EXPORTS CARRIED OUT PURSUANT TO BINDING CONTRACTS CONCLUDED BEFORE THE MONETARY MEASURE REFERRED TO IN THAT ARTICLE ' ' .

4AS THE RESULT OF THE DECISION OF THE FRENCH GOVERNMENT OF 15 MARCH 1976 TO PERMIT THE FRANC TO FLOAT , THE COMMISSION , BY REGULATION NO 652/76 OF 24 MARCH 1976 ( OFFICIAL JOURNAL 1976 , L 79 , P . 4 ) RE-INTRODUCED AS FROM 25 MARCH 1976 THE MONETARY COMPENSATORY AMOUNTS WITH REGARD TO FRANCE IN CERTAIN AGRICULTURAL SECTORS INCLUDING SUGAR .

5THESE COMPENSATORY AMOUNTS , WHICH WERE INCREASED AS FROM 1 JULY 1976 BY THE EFFECT OF THE NEW REPRESENTATIVE AGRICULTURAL EXCHANGE RATES LAID DOWN BY THE COUNCIL IN REGULATION NO 557/76 ( OFFICIAL JOURNAL 1976 , L 67 , P . 1 ) WERE INCREASED SEVERAL TIMES BETWEEN JULY AND DECEMBER 1976 BECAUSE OF THE FRENCH MONETARY SITUATION .

6THE APPLICANTS , RELYING ON THE ABOVE-MENTIONED REGULATION NO 1608/74 , ASKED THE FONDS D ' INTERVENTION ET DE REGULARISATION DU MARCHE DU SUCRE ( HEREINAFTER REFEREED TO AS ' ' THE F.I.R.S . ' ' ), WHICH IS THE FRENCH AGRICULTURAL INTERVENTION AGENCY FOR SUGAR , FOR EXEMPTION IN RESPECT OF THE CONTRACTS CONCLUDED AFTER 15 MARCH 1976 AND STILL TO BE PERFORMED ON 23 JULY 1976 FROM THE INCREASES IN THE COMPENSATORY AMOUNTS AFTER THAT DATE .

7WITH REGARD TO THE LATTER REQUEST , THE F.I.R.S . REFUSED TO APPLY REGULATION NO 1608/74 , EXPLAINING IN ITS MEMORANDUM OF 2 AUGUST 1976 THAT ' ' THE ALTERATION OF THE RATE OF THE COMPENSATORY AMOUNTS , WHICH MAY OCCUR EACH WEEK , IS ONLY A MEASURE ADOPTED IN IMPLEMENTATION OF THAT SYSTEM BUT DOES NOT ITSELF CONSTITUTE A MONETARY MEASURE WITHIN THE MEANING OF ARTICLE 1 OF REGULATION ( EEC ) NO 1608/74 ' ' .

8AFTER THE SYNDICAT DU COMMERCE DES SUCRES HAD , IN NOVEMBER 1976 , BROUGHT BEFORE THE COMMISSION THE MATTER OF THE DIFFICULTIES ENCOUNTERED BY EXPORTERS BECAUSE OF THE APPLICATION OF REGULATION NO 1608/74 IN THE MANNER INDICATED BY THE F.I.R.S ., A SENIOR OFFICIAL OF THE COMMISSION REPLIED BY LETTER OF 7 NOVEMBER 1976 THAT IT IS ' ' LEGALLY IMPOSSIBLE TO SAY THAT EACH VARIATION IN AN EXCHANGE RATE IS A MONETARY EVENT JUSTIFYING THE APPLICATION OF THAT REGULATION ' ' .

9IN THESE CIRCUMSTANCES , THE APPLICANTS LODGED THE PRESENT APPLICATIONS .

10THE COMMISSION OBJECTS THAT THE APPLICATIONS ARE INADMISSIBLE , ON THE GROUND THAT THE APPLICATION OF THE DISCRETIONARY MEASURE CONTAINED IN REGULATION NO 1608/74 COMES IN THE FIRST PLACE WITHIN THE DECISION-MAKING POWER OF THE MEMBER STATES .

11IT CONCLUDES THAT THE APPLICANTS SHOULD FIRST HAVE BROUGHT THEIR ACTION BEFORE THE NATIONAL COURTS WHICH COULD IF NECESSARY HAVE HAD RECOURSE TO THE PROCEDURE UNDER ARTICLE 177 OF THE TREATY WITH REGARD TO ANY QUESTION CONCERNING THE INTERPRETATION OF REGULATION NO 1608/74 .

12MOREOVER , ASSUMING THAT THE APPLICATIONS ARE DIRECTED AGAINST THE ABOVE- MENTIONED LETTER OF 7 NOVEMBER 1976 , THEY SHOULD BE DISMISSED AS INADMISSIBLE SINCE THAT LETTER WAS SIMPLY INFORMATION SENT IN REPLY TO A REPORT SUBMITTED BY THE SYNDICAT DU COMMERCE DES SUCRES AND DID NOT THEREFORE CONSTITUTE A LEGAL ACT CAPABLE OF FORMING THE SUBJECT-MATTER OF AN APPLICATION UNDER THE TREATY .

13ON THE OTHER HAND , THE APPLICANTS CLAIM THAT THE COMMISSION HAS , WITHIN THE CONTEXT OF REGULATION NO 1608/74 , A GENERAL POWER OF SUPERVISION OVER ALL THE PROVISIONS CONTAINED IN THAT REGULATION , INCLUDING ARTICLES 1 AND 2 , AND THAT THAT POWER IS SUCH AS TO MAKE IT LIABLE TO THOSE CONCERNED .

14IN THESE CIRCUMSTANCES , AN APPLICATION AGAINST THE FRENCH NATIONAL AUTHORITY , ACTING THROUGH THE F.I.R.S ., COULD NOT HAVE BEEN BROUGHT BEFORE THE NATIONAL COURTS AND , ASSUMING THAT IT COULD HAVE BEEN LODGED , WOULD HAVE INVOLVED FOR THE APPLICANTS THE RISK OF BEING BARRED BY THE PERIOD OF LIMITATION PROVIDED FOR IN ARTICLE 43 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC FROM BRINGING PROCEEDINGS BEFORE THE COURT OF JUSTICE .

15FINALLY , THEY SPECIFY THAT THEIR APPLICATIONS ARE NOT DIRECTED AGAINST THE ABOVE-MENTIONED LETTER OF 7 NOVEMBER 1976 BUT AGAINST THE WRONGFUL CONDUCT OF THE COMMISSION , MADE SPECIFIC BY THAT LETTER , WHICH OMITTED TO ADAPT REGULATION NO 1608/74 TO ITS OBJECTIVE .

16ACCORDING TO THE SECOND RECITAL OF THE PREAMBLE THERETO , THAT REGULATION IS ONE OF THE SPECIFIC MEASURES TAKEN BY THE COMMISSION TO DEAL WITH THE CASES OF PERSONS COMMITTED TO PERFORMING CONTRACTS CONTAINING PREFIXED CONDITIONS AND FOR WHOM MONETARY EVENTS SUCH AS THOSE REFERRED TO IN THE ABOVE-MENTIONED ARTICLE 1 INVOLVE AN INCREASED CHARGE ON IMPORTS OR EXPORTS .

17IN ORDER TO ENSURE THE SATISFACTORY OPERATION OF THOSE SPECIFIC MEASURES THE FOURTH RECITAL ( IN THE ENGLISH VERSION ) OF THE PREAMBLE TO THE REGULATION STATES THAT IT IS APPROPRIATE TO ' ' INTRODUCE A CERTAIN FLEXIBILITY INTO THE MONETARY RULES PERMITTING EACH INDIVIDUAL CASE TO BE EXAMINED IN THE LIGHT OF THE LOSS SUFFERED ' ' .

18FOR THAT PURPOSE , THE REGULATION INTRODUCED A SYSTEM BASED ON A DISCRETION AUTHORIZING THE MEMBER STATES TO APPLY ' ' ON A DISCRETIONARY BASIS ' ' TO TRADERS COMMITTED TO PERFORMING BINDING CONTRACTS THE EXEMPTION FROM THE ABOVE-MENTIONED CHARGE .

19FOR THE PURPOSES OF THE APPLICATION OF THAT SYSTEM THE SIXTH RECITAL ( IN THE ENGLISH VERSION ) OF THE PREAMBLE TO THE REGULATION PROVIDES EXPRESSLY THAT ' ' IT IS , IN PRINCIPLE DESIRABLE TO ENTRUST THE ADMINISTRATION OF THE RULES CONCERNED TO MEMBER STATES ' ' ON THE GROUND IN PARTICULAR THAT THEY ARE BETTER PLACED NOT ONLY TO VERIFY THE FACTS OF THE CASE BUT ALSO TO ' ' JUDGE THE CIRCUMSTANCES ' ' .

20IN FACT IT FOLLOWS FROM THOSE RULES TAKEN AS A WHOLE THAT THEY HAVE GIVEN THE MEMBER STATES A MARGIN OF DISCRETION WHICH PERMITS THEM TO JUDGE THE APPLICATION TO EACH INDIVIDUAL CASE OF THE DISCRETIONARY MEASURE , INCLUDING THE CIRCUMSTANCES SUCH AS TO JUSTIFY THE GRANT OR THE REFUSAL OF THE EXEMPTION REFERRED TO IN ARTICLE 1 OF THE REGULATION .

21ALTHOUGH THE REGULATION MAKES THE APPLICATION OF THE SYSTEM THUS ESTABLISHED SUBJECT TO THE COMMISSION ' S AGREEMENT IN THE CASES EXPRESSLY LAID DOWN IN ARTICLE 4 , WHERE A MEMBER STATE INTENDS TO MAKE USE OF THE DISCRETIONARY MEASURE IN RESPECT OF CONTRACTS THE VALIDITY OF WHICH EXCEEDS A CERTAIN LENGTH OF TIME , IT LEAVES TO THE CHARGE OF THE MEMBER STATES ALONE THE DECISION CONCERNING THE REFUSAL TO APPLY THE DISCRETIONARY MEASURE .

22THE FIRST PARAGRAPH OF ARTICLE 5 OF THE REGULATION MERELY RECOGNIZES IN GENERAL THE RIGHT OF THE COMMUNITY TO BE NOTIFIED BY THE MEMBER STATES OF THE CRITERIA FOR APPLICATION WHICH THEY INTEND TO ADOPT AND THE CASES IN WHICH IT IS PROPOSED TO GRANT AN EXEMPTION .

23THE POWERS GIVEN TO THE COMMISSION FOR THAT PURPOSE ARE , ACCORDING TO THE THIRD PARAGRAPH OF ARTICLE 5 , INTENDED TO ENSURE THE CO-ORDINATED APPLICATION OF THE ADMINISTRATION BY THE MEMBER STATES OF THE SYSTEM ESTABLISHED BY REGULATION NO 1608/74 AND PERMIT THE COMMISSION TO INTERVENE IN THAT ADMINISTRATION ONLY TO THE EXTENT NECESSARY TO ENSURE THAT THE ATTAINMENT OF THAT OBJECTIVE IS NOT JEOPARDIZED .

24MOREOVER , THE APPLICATIONS FOR DAMAGES LODGED BY THE APPLICANTS REQUEST IN THE PRESENT CASE SUMS CORRESPONDING TO THE INCREASES IN THE COMPENSATORY AMOUNTS LEVIED ON THE EXPORTS IN QUESTION OWING TO THE REFUSAL OF THE FRENCH NATIONAL AUTHORITIES TO APPLY TO THOSE EXPORTS THE DISCRETIONARY MEASURE INTRODUCED BY THAT REGULATION .

25SINCE THE ACTION IS IN SUBSTANCE DIRECTED AGAINST MEASURES TAKEN BY THE NATIONAL AUTHORITIES PURSUANT TO PROVISIONS OF COMMUNITY LAW , SUCH AS REGULATION NO 1608/74 , THE CONDITIONS FOR INSTITUTING PROCEEDINGS BEFORE THE COURT OF JUSTICE UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY ARE NOT FULFILLED .

26FOR THOSE REASONS , IT IS NECESSARY TO DISMISS THE PRESENT APPLICATIONS AS INADMISSIBLE .

COSTS

27UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

28THE APPLICANTS HAVE FAILED IN THEIR SUBMISSIONS .

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATIONS AS INADMISSIBLE ;

2 . ORDERS THE APPLICANTS TO BEAR THE COSTS .