61978J0090

1 . ACTION FOR DAMAGES - APPLICATION - LACK OF PRECISE DETAILS AS REGARDS THE EXTENT OF THE DAMAGE - ADMISSIBILITY - CONDITIONS

( EEC TREATY , ART . 178 ; RULES OF PROCEDURE , ART . 38 ( 1 ))

2 . ACTION FOR FAILURE TO ACT - NATURAL AND LEGAL PERSONS - MEASURE REQUESTED - REGULATION - INADMISSIBILITY

( EEC TREATY , THIRD PARAGRAPH OF ART . 175 )

1 . WHEN AN ACTION FOR DAMAGES IS BROUGHT BEFORE THE COURT UNDER ARTICLE 178 OF THE TREATY AND THE LEGAL BASIS OF THE COMMUNITY ' S LIABILITY IS DISPUTED , THE DESIRABILITY OF MAKING THE PROCEDURE MORE ECONOMICAL MAY LEAD THE COURT TO GIVE A DECISION AT AN EARLY STAGE OF THE PROCEEDINGS ON THE QUESTION WHETHER THE CONDUCT OF THE INSTITUTIONS HAS BEEN SUCH AS TO ENTAIL THE LIABILITY OF THE COMMUNITY , RESERVING CONSIDERATION OF QUESTIONS RELATING TO CAUSALITY , AS WELL AS THOSE CONCERNING THE NATURE AND EXTENT OF THE DAMAGE , FOR A LATER STAGE . CONSEQUENTLY THE INCOMPLETE NATURE OF AN APPLICATION IN WHICH THE APPLICANT MERELY STATES THAT HE HAS SUSTAINED PECUNIARY DAMAGE AS A RESULT OF COMMUNITY RULES , RESERVING THE RIGHT TO GIVE DETAILS OF THE EXTENT THEREOF AT A LATER STAGE , NEED NOT NECESSARILY MAKE IT INADMISSIBLE .

2 . AN APPLICATION MADE UNDER ARTICLE 175 OF THE TREATY BY A NATURAL OR LEGAL PERSON WHEN THE ONLY LEGAL INSTRUMENT WHICH WOULD ALLOW SATISFACTION OF THE CLAIM MADE ON THE COUNCIL OR THE COMMISSION WOULD BE A REGULATION - A MEASURE WHICH CANNOT BE DESCRIBED , BY REASON EITHER OF ITS FORM OR OF ITS NATURE , AS AN ACT WHICH COULD BE ADDRESSED TO SUCH A PERSON WITHIN THE MEANING OF THE THIRD PARAGRAPH OF ARTICLE 175 - MUST BE DISMISSED AS INADMISSIBLE .

IN CASE 90/78

GRANARIA B.V ., ROTTERDAM , REPRESENTED BY B . H . TER KUILE AND F . O . W . VOGELAAR , OF THE HAGUE BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF JACQUES LOESCH , 2 RUE GOETHE ,

APPLICANT ,

V

COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY D . VIGNES , DIRECTOR OF THE LEGAL DEPARTMENT , ASSISTED BY A . BRAUTIGAM , A MEMBER OF THAT DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF J . N . VAN DEN HOUTEN , DIRECTOR OF THE LEGAL DEPARTMENT OF THE EUROPEAN INVESTMENT BANK , 2 PLACE DE METZ ,

AND

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY H . BRONKHORST , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , M . CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANTS ,

APPLICATION FOR DAMAGES UNDER ARTICLE 175 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY ,

1BY AN APPLICATION MADE ON 3 APRIL 1978 AGAINST THE COUNCIL AND THE COMMISSION , THE NETHERLANDS COMPANY GRANARIA B.V ., HEREINAFTER REFERRED TO AS ' ' GRANARIA ' ' , ASKED THE COURT , IN THE FIRST PLACE , TO DECLARE PURSUANT TO ARTICLE 175 OF THE EEC TREATY THAT THE TWO INSTITUTIONS , JOINTLY OR SEVERALLY , HAD DISREGARDED THEIR OBLIGATIONS BY FAILING TO ADDRESS TO GRANARIA AN ACT WHICH IT HAD REQUESTED , AND , SECONDLY , TO ORDER THE COMMUNITY , PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY , TO COMPENSATE IT FOR DAMAGE CAUSED TO IT BY THE DEFENDANT INSTITUTIONS .

2THESE REQUESTS ARISE FROM THE FACT THAT ON 1 AUGUST 1974 , THE DATE OF THE ENTRY INTO FORCE OF REGULATION NO 1125/74 OF 29 APRIL 1974 AMENDING REGULATION NO 120/67 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OFFICIAL JOURNAL 1974 , L 128 , P . 12 ), THE GRANT OF PRODUCTION REFUNDS FOR QUELLMEHL , WHICH GRANARIA HAD RECEIVED AFTER COMMENCING PRODUCTION OF THAT COMMODITY IN 1972 , CEASED AND WAS RE-INTRODUCED ONLY AS REGARDS THE MANUFACTURE OF QUELLMEHL FOR BREAD-MAKING , BY COUNCIL REGULATION NO 1127/78 OF 22 MAY 1978 AMENDING REGULATION NO 2742/75 ON PRODUCTION REFUNDS IN THE CEREALS AND RICE SECTORS ( OFFICIAL JOURNAL 1978 , L 142 , P . 24 ).

IN SUPPORT OF ITS REQUESTS GRANARIA RELIES ON THE JUDGMENT OF THE COURT OF 19 OCTOBER 1977 IN JOINED CASES 117/76 , RUCKDESCHEL V HAUPTZOLLAMT HAMBURG-ST . ANNEN , AND 16/77 , DIAMALT V HAUPTZOLLAMT ITZEHOE ( 1977 ) ECR 1753 , IN WHICH THE COURT RULED THAT THE PROVISIONS AT ISSUE WERE INCOMPATIBLE WITH THE PRINCIPLE OF EQUALITY IN SO FAR AS THEY PROVIDED FOR QUELLMEHL AND PRE-GELATINIZED STARCH TO RECEIVE DIFFERENT TREATMENT IN RESPECT OF PRODUCTION REFUNDS FOR MAIZE USED IN THE MANUFACTURE OF THOSE TWO PRODUCTS .

3THE OBJECT OF THE APPLICATION , TAKEN AS A WHOLE , IS ESSENTIALLY TO OBTAIN COMPENSATION FOR THE DAMAGE WHICH GRANARIA CLAIMS TO HAVE SUSTAINED AS A RESULT OF THE REFUSAL TO GRANT IT THE REFUNDS WHICH IT REQUESTED .

THEREFORE , IT IS FIRST OF ALL NECESSARY TO CONSIDER THE CLAIM UNDER THE SECOND PARAGRAPH OF ARTICLE 215 .

THE ADMISSIBILITY OF THE APPLICATION IN SO FAR AS IT IS BASED ON ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215

4THE COUNCIL AND THE COMMISSION HAVE PUT FORWARD AN OBJECTION OF INADMISSIBILITY , SUBMITTING THAT THE APPLICATION DOES NOT COMPLY WITH THE REQUIREMENTS OF ARTICLE 38 ( 1 ) OF THE RULES OF PROCEDURE IN THAT IT DOES NOT STATE EITHER THE NATURE OR EXTENT OF THE ALLEGED DAMAGE OR THE CAUSAL LINK BETWEEN THE ACTS OF THE COMMUNITY AND THE DAMAGE ALLEGEDLY SUSTAINED .

5IT IS TRUE THAT IN THE APPLICATION GRANARIA MERELY STATES THAT IT HAS SUSTAINED PECUNIARY DAMAGE AS A RESULT OF THE REGULATIONS AT ISSUE , RESERVING THE RIGHT TO GIVE DETAILS OF THE EXTENT THEREOF AT A LATER STAGE .

GENERALLY AN APPLICATION IN SUCH ABRIDGED FORM , MADE UNDER ARTICLE 178 OF THE TREATY , WOULD NOT BE SUFFICIENT TO COMPLY WITH THE REQUIREMENTS OF THE RULES OF PROCEDURE AS REGARDS STATING THE SUBJECT-MATTER OF THE DISPUTE AND THE GROUNDS ON WHICH THE APPLICATION IS BASED .

6IN THE PARTICULAR CIRCUMSTANCES OF THE CASE , HOWEVER , THE INCOMPLETE NATURE OF THE APPLICATION NEED NOT NECESSARILY RENDER IT INADMISSIBLE .

IN FACT , WHEN AN ACTION FOR DAMAGES IS BROUGHT BEFORE THE COURT UNDER ARTICLE 178 OF THE TREATY AND THE LEGAL BASIS OF THE COMMUNITY ' S LIABILITY IS DISPUTED , THE DESIRABILITY OF MAKING THE PROCEDURE MORE ECONOMICAL HAS SOMETIMES LED THE COURT TO GIVE A DECISION AT AN EARLY STAGE OF THE PROCEEDINGS ON THE QUESTION WHETHER THE CONDUCT OF THE INSTITUTIONS HAS BEEN SUCH AS TO ENTAIL THE LIABILITY OF THE COMMUNITY , RESERVING CONSIDERATION OF QUESTIONS RELATING TO CAUSALITY , AS WELL AS THOSE CONCERNING THE NATURE AND EXTENT OF THE DAMAGE , FOR A LATER STAGE .

IN THIS CASE THE PROBLEM OF THE LEGAL BASIS OF LIABILITY IS PARTICULARLY APPROPRIATE FOR SEPARATE TREATMENT IN ACCORDANCE WITH THAT PRACTICE , SO THAT IT IS POSSIBLE , STRICTLY SPEAKING , TO CONSIDER THE APPLICATION ADEQUATE AND THEREFORE ADMISSIBLE .

THE SUBSTANCE OF THE APPLICATION IN SO FAR AS IT IS BASED ON THE SECOND PARAGRAPH OF ARTICLE 215

7GRANARIA SUBMITS THAT THE COMMUNITY IS RENDERED LIABLE BY THE FACT THAT THE ABOLITION OF THE PRODUCTION REFUNDS FOR QUELLMEHL CREATED A SITUATION WHICH , IN ITS JUDGMENT OF 19 OCTOBER 1977 , THE COURT DECLARED ILLEGAL AS BEING CONTRARY TO THE PRINCIPLE OF EQUALITY .

8WHILST IT IS TRUE , IN THAT JUDGMENT , THE COURT RULED THAT THE PROVISIONS AT ISSUE WERE INCOMPATIBLE WITH THE PRINCIPLE OF EQUALITY IN SO FAR AS THEY PROVIDED FOR A DIFFERENCE IN TREATMENT BETWEEN QUELLMEHL AND PRE-GELATINIZED STARCH , NONE THE LESS IT IS CLEAR FROM THE GROUNDS OF THE DECISION THAT THAT FINDING WAS BASED ON THE INFORMATION SUPPLIED TO THE COURT DURING THE PROCEEDINGS .

IN THIS REGARD THE COURT FOUND THAT QUELLMEHL HAD FOR A LONG TIME BEEN EXPOSED TO COMPETITION FROM STARCH ON ACCOUNT OF THE POSSIBILITY OF USING THE LATTER PRODUCT INSTEAD OF QUELLMEHL FOR THE PURPOSE OF CERTAIN SPECIFIC USES IN FOOD FOR HUMAN CONSUMPTION .

9IN VIEW OF THE ALLEGATIONS MADE BY THE COUNCIL AND THE COMMISSION TO THE EFFECT THAT QUELLMEHL HAD BEEN DIVERTED FROM ITS SPECIFIC USE IN FOOD FOR HUMAN CONSUMPTION IN ORDER TO BE SOLD AS ANIMAL FEED , THE COURT RULED THAT , EVEN IF ADEQUATE PROOF THAT IT WAS PUT TO SUCH USE HAD BEEN FORTHCOMING , THAT COULD HAVE JUSTIFIED THE ABOLITION OF THE REFUND ONLY IN RESPECT OF THE QUANTITIES PUT TO SUCH USE AND NOT IN RESPECT OF THE QUANTITIES OF THE PRODUCT USED IN FOOD FOR HUMAN CONSUMPTION .

THE COURT TOOK THE VIEW THAT THE PRINCIPLE OF EQUALITY IS BREACHED TO THE DETRIMENT OF QUELLMEHL PRODUCERS ONLY ON THE ASSUMPTION THAT QUELLMEHL IS PUT TO ITS TRADITIONAL USES IN FOOD FOR HUMAN CONSUMPTION .

IN THE COURSE OF THE PROCEEDINGS IN THE PRESENT CASE THE PARTIES HAVE NOT INTRODUCED ANY NEW FACTOR CAPABLE OF ALTERING THAT VIEW .

10THE INSTITUTIONS ENTRUSTED WITH THE OPERATION OF THE SCHEME OF PRODUCTION REFUNDS WITHIN THE FRAMEWORK OF THE COMMON ORGANIZATION OF THE MARKET MAY LEGITIMATELY REQUIRE A PERSON WHO CLAIMS THE REFUNDS TO PROVIDE EVIDENCE THAT THE PRODUCT IS USED FOR THE PURPOSE ENVISAGED BY THE SCHEME .

IN THIS CASE GRANARIA HAS NOT PRODUCED SUCH EVIDENCE , EITHER FOR THE PERIOD DURING WHICH THE REGULATIONS IN FORCE MADE NO PROVISION FOR ANY PRODUCTION REFUND FOR QUELLMEHL OR FOR THE PERIOD FOLLOWING THE REINTRODUCTION OF THE PRODUCTION REFUNDS FOR QUELLMEHL INTENDED FOR BREAD-MAKING .

11IT FOLLOWS THAT THE COMMUNITY IS NOT LIABLE TOWARDS GRANARIA AND CONSEQUENTLY THE APPLICATION MUST BE REJECTED AS UNFOUNDED IN SO FAR AS IT IS BASED ON THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY .

THE ADMISSIBILITY OF THE APPLICATION IN SO FAR AS IT IS BASED ON ARTICLE 175 OF THE TREATY

12THE CLAIM SUBMITTED BY GRANARIA UNDER ARTICLE 175 OF THE TREATY SEEKS A DECLARATION THAT THE DEFENDANT INSTITUTIONS HAVE FAILED TO FULFIL THEIR OBLIGATIONS BY NOT ACTING UPON THE REQUEST WHICH GRANARIA HAD ADDRESSED TO THEM , ASKING THEM TO PAY THE REFUNDS CLAIMED BY IT AND TO RECOGNIZE THEIR LIABILITY FOR THE DAMAGE WHICH THEIR CONDUCT HAD CAUSED .

13THE THIRD PARAGRAPH OF ARTICLE 175 PROVIDES THAT ANY NATURAL OR LEGAL PERSON MAY , UNDER THE CONDITIONS LAID DOWN IN THE FIRST AND SECOND PARAGRAPHS OF THE SAME ARTICLE , COMPLAIN TO THE COURT OF JUSTICE THAT THE COUNCIL OR THE COMMISSION HAS , IN INFRINGEMENT OF THE TREATY , ' ' FAILED TO ADDRESS TO THAT PERSON ANY ACT OTHER THAN A RECOMMENDATION OR AN OPINION ' ' .

14THE ONLY LEGAL INSTRUMENT WHICH WOULD HAVE ALLOWED SATISFACTION OF THE CLAIM MADE ON THE TWO INSTITUTIONS IN THIS CASE WOULD HAVE BEEN A REGULATION AUTHORIZING THE REINTRODUCTION OF PRODUCTION REFUNDS FOR QUELLMEHL AND LAYING DOWN RULES FOR THE COMPENSATION OF ANY DAMAGE CAUSED BY THEIR ABOLITION .

SUCH A PROVISION COULD BE DESCRIBED , BY REASON EITHER OF ITS FORM OR OF ITS NATURE , AS AN ACT WHICH COULD BE ADDRESSED TO THE APPLICANT WITHIN THE MEANING OF THE THIRD PARAGRAPH OF ARTICLE 175 .

15THUS THE APPLICATION MUST BE DISMISSED AS INADMISSIBLE IN SO FAR AS IT IS BASED ON ARTICLE 175 OF THE TREATY .

COSTS

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

AS THE APPLICANT HAS FAILED IN ITS ACTION IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE APPLICANT TO PAY THE COSTS .