61975J0040

IN CASE 40/75

SOCIETE DES PRODUITS BERTRAND SA , GRIGNY , RHONE , FRANCE , REPRESENTED BY EDOUARD BRISAC , ADVOCATE AT THE COUR DE PARIS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES MARGUE , 20 RUE PHILIPPE-II ,

APPLICANT ,

V COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , MICHEL VAN ACKERE , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , LEGAL ADVISER TO THE COMMISSION , 4 BOULEVARD ROYAL ,

DEFENDANT ,

APPLICATION FOR COMPENSATION UNDER THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY FOR THE DAMAGE OCCASIONED TO THE APPLICANT BECAUSE THE COMMISSION FAILED TO INITIATE THE PROCEDURE UNDER ARTICLE 93 ( 2 ) OF THE TREATY AND TO AVAIL ITSELF OF THE POWERS CONFERRED UPON IT BY THIS PROVISION AND BY ARTICLES 155 AND 169 OF THE SAID TREATY IN ORDER TO SECURE THE ABOLITION OF AN AID GRANTED BY A MEMBER STATE

1 BY AN APPLICATION LODGED ON 17 APRIL 1975 THE APPLICANT CLAIMS COMPENSATION FOR THE DAMAGE SUFFERED BY IT BY REASON OF A WRONGFUL ACT OR OMISSION ON THE PART OF THE COMMISSION IN FAILING TO INITIATE THE PROCEDURE LAID DOWN BY ARTICLE 93 ( 2 ) OF THE EEC TREATY , AND IN FAILING TO USE THE POWERS CONFERRED UPON IT BY ARTICLES 93 ( 2 ), 155 AND 169 OF THE SAID TREATY TO ENSURE THAT THE ITALIAN STATE ABOLISHED THE AID GRANTED BY IT IN CONTRAVENTION OF ARTICLE 92 OF THE TREATY , TO ITALIAN MANUFACTURERS OF SEMOLINA AND PASTA PRODUCTS .

2 THIS AID WAS GRANTED BY THE ITALIAN GOVERNMENT WITHIN THE FRAMEWORK OF ITS COUNTER-INFLATION POLICY TO FREEZE THE PRICES OF A CERTAIN NUMBER OF WIDELY-CONSUMED FOODSTUFFS , IN PARTICULAR , THE PRICES OF DRY PASTA PRODUCTS ( DECREE-LAW NO 427 OF 24 JULY 1973 WHICH BECAME LAW NO 496 OF 4 AUGUST 1973 ( GAZZETTA UFFICIALE NO 189 OF 24 JULY 1973 AND NO 216 OF 22 AUGUST 1973 )).

3 THE AZIENDA DI STATO PER GLI INTERVENTI NEL MERCATO AGRICOLO ( THE AIMA ) WHICH WAS CHARGED WITH STABILIZING THE WHEAT MARKET BY BUYING AND STOCKING AS WELL AS RE-SELLING ON THE DOMESTIC MARKET , SOLD TO ITALIAN MANUFACTURERS OF SEMOLINA AND OF PASTA MADE WITH DURUM WHEAT 8 500 000 QUINTALS OF WHEAT AT PRICES WHICH WERE ON AVERAGE 30 % LOWER THAN THE QUOTATIONS ON THE DOMESTIC MARKET .

4 SINCE IT ALLEGED THAT IT HAD SUFFERED DAMAGE THROUGH THE AID IN DISPUTE , THE APPLICANT CLAIMS THE PAYMENT OF FF 250 000 AS COMPENSATION OR ALTERNATIVELY THAT THE DEFENDANT SHOULD BE ORDERED TO PAY TO IT THE SUM OF FF 1 AS PROVISIONAL DAMAGES AND THAT AN EXPERT SHOULD BE APPOINTED IN ORDER TO ESTABLISH THE AMOUNT OF THE DAMAGE .

5 AMONGST OTHER SUBMISSIONS THE DEFENDANT PLEADS THE ABSENCE OF A CAUSAL CONNEXION BETWEEN THE BEHAVIOUR COMPLAINED OF AND THE ALLEGED DAMAGE .

6 THE APPLICANT MAINTAINS THAT IT HAS BEEN UNJUSTLY DEPRIVED OF PART OF ITS SALES ON THE FRENCH MARKET BY ITALIAN MANUFACTURERS AND THAT IT HAS BEEN OBLIGED TO MAKE EXCEPTIONAL REDUCTIONS IN ITS PROFIT MARGINS WHICH WERE ALREADY EXTREMELY LOW IN ORDER TO AVOID A DISASTROUS FALL IN ITS TURNOVER .

7 FOR EXAMPLE , IN JANUARY 1974 ACCORDING TO THE APPLICANT , ITALIAN PASTA PRODUCTS WERE OFFERED FOR SALE ON THE FRENCH MARKET AT PRICES VARYING FROM FF 2.385 TO 2.505 PER KG WHILST THE SELLING PRICES OF FRENCH MANUFACTURERS AT THE SAME PERIOD WERE FROM FF 3.08 TO 3.20 PER KG ALTHOUGH THESE LATTER PRICES INCLUDED ONLY A VERY SLIGHT PROFIT MARGIN .

8 THE DEFENDANT STATES THAT IT WAS ASSURED BY THE ITALIAN GOVERNMENT THAT THE AIMA ONLY SOLD DURUM WHEAT AT REDUCED PRICES TO MANUFACTURERS WHO DISTRIBUTE THEIR PASTA PRODUCTS ON THE DOMESTIC MARKET WHILST EXPORTERS ONLY OBTAINED THE RAW MATERIAL AT THE MARKET PRICE .

9 ALTHOUGH THE APPLICANT CLAIMS THAT ITS SALES DROPPED IN THE SOUTH-EAST OF FRANCE IT HAS NOT ESTABLISHED THAT THIS FALL WAS CAUSED BY THE ITALIAN MEASURES WHICH IT DISPUTES .

10 IT IS CLEAR FROM STATISTICS THAT THE EXPORT OF ITALIAN PASTA PRODUCTS TO FRANCE HAD ALREADY REGISTERED AN INCREASE IN 1971 , THAT IS TO SAY , BEFORE THE AID COMPLAINED OF WAS GRANTED .

11 SUBSEQUENTLY , DURING THE PERIOD WHEN THIS AID WAS IN OPERATION , AS SLIGHT INCREASE IN EXPORTS TO FRANCE ( 4.4 % IN 1974 AS COMPARED WITH 1972 ) COINCIDED WITH THE IMPOSITION OF COMMUNITY LEVIES ON EXPORTS TO THIRD COUNTRIES FOLLOWING THE SHORTAGE OF DURUM WHEAT ON THE WORLD MARKET AND THE WEAKNESS OF THE LIRA .

12 THE DIFFERENCE BETWEEN THE PRICES FREE-FACTORY OF FRENCH PASTA PRODUCTS AND THE FREE-AT-FRONTIER PRICES OF ITALIAN PASTA PRODUCTS WAS INDEED DIMINISHED IN THE FIRST QUARTER OF 1974 ( FF 0.063 PER KG ) IN RELATION TO THE PREVIOUS QUARTER ( FF 1 PER KG ) AND INDEED IN RELATION TO THE THREE PREVIOUS QUARTERS FOR 1973 ( ON AVERAGE FF 0.65 PER KG ).

13 ADDITIONAL EVIDENCE THAT THE APPLICANT ' S ARGUMENT IS ERRONEOUS MAY BE DEDUCED FROM THE FACT THAT THE PRICES OF ITALIAN EXPORTS INCREASED IN RELATION TO 1972 BY 25 % IN 1973 AND BY 75 % IN 1974 , THAT IS TO SAY , IN PROPORTION TO THE AVERAGE INCREASE IN THE PRICE OF DURUM WHEAT IN ITALY .

14 THE APPLICANT DOES NOT EXAMINE THESE FIGURES AND MERELY STATES THAT THE PRICES OF ITALIAN PASTA PRODUCTS EXPORTED TO FRANCE WERE LOWER THAN THOSE OF FRENCH PASTA PRODUCTS AND THAT IN 1974 IT LOST SALES TO THE EXTENT OF 670 METRIC TONS IN THE SOUTH-EAST OF FRANCE AND IN CONTRACTS FOR SUPPLYING THE PROVISIONING SERVICE OF THE ARMED FORCES , BUT WITHOUT ESTABLISHING A CAUSAL CONNEXION BETWEEN THE AID GRANTED IN ITALY AND THOSE CIRCUMSTANCES .

15 CONSEQUENTLY THE APPLICATION MUST BE DISMISSED .

COSTS

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

17 THE APPLICANT HAS FAILED IN ITS SUBMISSIONS .

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE APPLICANT TO BEAR THE COSTS .