61978J0262(01)

NON-CONTRACTUAL LIABILITY - UNLAWFUL ABOLITION OF PRODUCTION REFUNDS ON QUELLMEHL - LIABILITY INCURRED BY REASON OF THE ABOLITION ONLY OF PRODUCTION REFUNDS ON QUELLMEHL INTENDED FOR BREAD-MAKING .

( EEC TREATY , ART . 215 , SECOND PARA .)

IN CASE 262/78

DIAMALT AG , MUNICH , REPRESENTED BY K.-D . RATHKE , RECHTSANWALT , AUGSBURG , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF A . BONN , 22 COTE D ' EICH ,

APPLICANT ,

V

EUROPEAN ECONOMIC COMMUNITY , REPRESENTED BY :

THE COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY D . VIGNES , DIRECTOR OF THE LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY B . SCHLOH AND A . BRAUTIGAM , RESPECTIVELY LEGAL ADVISER AND ADMINISTRATOR IN THE SAID DEPARTMENT , ACTING AS JOINT AGENTS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF H . J . PABBRUWE , DIRECTOR OF THE LEGAL DEPARTMENT OF THE EUROPEAN INVESTMENT BANK , BOULEVARD KONRAD-ADENAUER , KIRCHBERG ,

AND

THE COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , J . H . J . BOURGEOIS , ACTING AS AGENT , ASSISTED BY J . SACK , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF O . MONTALTO , A MEMBER OF THE LEGAL DEPARTMENT OF THE COMMISSION , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

CONCERNING , AT THE PRESENT STAGE OF THE PROCEEDINGS , THE ASSESSMENT OF DAMAGES WHICH THE EUROPEAN ECONOMIC COMMUNITY WAS ORDERED TO PAY THE APPLICANT BY THE INTERLOCUTORY JUDGMENT OF 4 OCTOBER 1979 IN JOINED CASES 261 AND 262/78 ( INTERQUELL STARKE-CHEMIE AND DIAMALT V COUNCIL AND COMMISSION ( 1979 ) ECR 3045 ),

1 THE INTERLOCUTORY JUDGMENT OF THE COURT OF 4 OCTOBER 1979 IN JOINED CASES 261 AND 262/78 ( INTERQUELL STARKE-CHEMIE AND DIAMALT V COUNCIL AND COMMISSION ( 1979 ) ECR 3045 ) ORDERED THE EUROPEAN ECONOMIC COMMUNITY TO PAY THE TWO APPLICANTS , AS DAMAGES FOR WHICH IT WAS NON-CONTRACTUALLY LIABLE , THE AMOUNTS EQUIVALENT TO THE PRODUCTION REFUNDS ON QUELLMEHL INTENDED FOR USE IN THE BAKERY INDUSTRY WHICH EACH OF THOSE UNDERTAKINGS WOULD HAVE BEEN ENTITLED TO RECEIVE IF , DURING THE PERIOD FROM 1 AUGUST 1974 TO 19 OCTOBER 1977 , THE USE OF MAIZE FOR THE PRODUCTION OF QUELLMEHL HAD CONFERRED AN ENTITLEMENT TO THE SAME REFUNDS AS THE USE OF MAIZE FOR THE MANUFACTURE OF STARCH . THE COURT FURTHER ORDERED THAT INTEREST AT 6% SHOULD BE PAID ON THE SAID AMOUNTS AS FROM THE DATE OF JUDGMENT AND THAT THE PARTIES SHOULD INFORM THE COURT WITHIN 12 MONTHS OF THE AMOUNTS OF COMPENSATION ARRIVED AT BY AGREEMENT . IN THE ABSENCE OF AGREEMENT THE PARTIES WERE TO TRANSMIT TO THE COURT WITHIN THE SAME PERIOD A STATEMENT OF THEIR VIEWS , WITH SUPPORTING FIGURES . THE COSTS WERE RESERVED .

2 IN CASE 262/78 ( DIAMALT ) THE PARTIES AGREED THAT THE COMMUNITY SHOULD PAY THE APPLICANT THE SUM OF DM 248 621.99 AS DAMAGES FOR THE PRODUCTION OF QUELLMEHL FOR BREAD-MAKING . ON THE OTHER HAND , THE DEFENDANTS CONSIDER UNFOUNDED THE APPLICANT ' S CLAIM FOR THE SUM OF DM 85 054.43 IN RESPECT OF THE PRODUCTION OF QUELLMEHL FOR USE IN FOOD FOR HUMAN CONSUMPTION OTHER THAN BREAD . THEY CONTEND THAT THAT PART OF THE CLAIM HAS ALREADY BEEN REJECTED BY THE INTERLOCUTORY JUDGMENT .

3 IN CASE 261/78 ( INTERQUELL ) THE DEFENDANTS CONTEND THAT THE ACTION SHOULD BE DISMISSED IN ITS ENTIRETY BECAUSE THE APPLICANT HAS ADDUCED INSUFFICIENT EVIDENCE OF THE AMOUNT OF COMMON-WHEAT FLOUR MADE INTO QUELLMEHL .

4 IN VIEW OF THE COMPLETELY DIFFERENT NATURE OF THE ISSUES STILL OUTSTANDING IN THE TWO CASES IT IS APPROPRIATE TO DISJOIN THE CASES FOR THE PURPOSES OF THE JUDGMENT .

5 THE QUESTION ON WHICH THE PARTIES IN THE DIAMALT CASE SEEK THE COURT ' S RULING CONCERNS THE INTERPRETATION OF THE INTERLOCUTORY JUDGMENT OF 4 OCTOBER 1979 .

6 AS IS APPARENT FROM THE OPERATIVE PART OF THAT JUDGMENT SET OUT ABOVE , THE COMMUNITY WAS ORDERED TO COMPENSATE THE APPLICANTS ONLY IN RESPECT OF THE PRODUCTION OF QUELLMEHL INTENDED FOR BREAD-MAKING .

7 THAT RESTRICTION IN THE OPERATIVE PART MUST BE COMPARED WITH PARAGRAPH 10 OF THE DECISION , ACCORDING TO WHICH ' ' IT IS ONLY AS REGARDS THE QUELLMEHL USED FOR BREAD-MAKING THAT THE ABOLITION OF THE PRODUCTION REFUNDS FOR QUELLMEHL WAS INCOMPATIBLE WITH THE PRINCIPLE OF EQUALITY FOR THE REASONS ACCEPTED BY THE COURT IN ITS JUDGMENT OF 19 OCTOBER 1977 ' ' .

8 IT FOLLOWS THAT THE INTERLOCUTORY JUDGMENT OF 4 OCTOBER 1979 MUST BE UNDERSTOOD TO MEAN THAT THE COURT THEREBY REJECTED THE APPLICANTS ' CLAIMS IN RELATION TO QUELLMEHL INTENDED FOR PURPOSES OTHER THAN BREAD-MAKING .

COSTS

9 ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . ACCORDING TO ARTICLE 69 ( 3 ), WHERE EACH PARTY SUCCEEDS ON SOME AND FAILS ON OTHER HEADS THE COURT MAY ORDER THAT THE PARTIES BEAR THEIR OWN COSTS IN WHOLE OR IN PART .

10 SINCE THE ACTION HAS BEEN HELD TO HAVE BEEN WELL-FOUNDED , SAVE AS REGARDS THE QUELLMEHL USED FOR PURPOSES OTHER THAN BREAD-MAKING , THE COMMUNITY MUST BE ORDERED TO PAY THREE-QUARTERS OF THE APPLICANT ' S COSTS IN RELATION TO THE PROCEEDINGS PRIOR TO THE INTERLOCUTORY JUDGMENT AND TO BEAR ITS OWN COSTS OCCASIONED BY THOSE PROCEEDINGS . SINCE THE APPLICANT HAS FAILED IN ITS SUBMISSIONS IN THE PROCEEDINGS SUBSEQUENT TO THE INTERLOCUTORY JUDGMENT IT MUST BE ORDERED TO PAY THE COSTS OF THOSE PROCEEDINGS .

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . ORDERS THE EUROPEAN ECONOMIC COMMUNITY TO PAY DIAMALT AG , MUNICH , THE SUM OF DM 248 621.99 , LESS AMOUNTS OF DAMAGES ALREADY PROVISIONALLY PAID , WITH INTEREST AT 6% FROM 4 OCTOBER 1979 ON THE BALANCE OF THE SUMS REMAINING DUE AT THE DATE OF THE PRESENT JUDGMENT . FOR THE REST , THE APPLICATION IS DISMISSED ;

2.ORDERS THE COMMUNITY TO PAY THREE-QUARTERS OF THE COSTS INCURRED BY THE APPLICANT AS A RESULT OF THE PROCEEDINGS PRIOR TO THE INTERLOCUTORY JUDGMENT OF 4 OCTOBER 1979 AND TO BEAR THE COSTS INCURRED BY ITSELF AS A RESULT OF THOSE PROCEEDINGS ; AND