61978J0101

1 . ACTS OF AN INSTITUTION - REGULATION - PRESUMPTION OF VALIDITY - CONSEQUENCES

( EEC TREATY , ARTICLES 173 , 174 , 177 AND 184 )

2 . ACTS OF AN INSTITUTION - REGULATION - APPLICATION BY THE NATIONAL AUTHORITIES - POWER TO DEROGATE - ABSENCE

( EEC TREATY , ARTICLE 189 )

3 . PRELIMINARY QUESTIONS - QUESTION RELATING TO THE NON-CONTRACTUAL LIABILITY OF THE COMMUNITY - INADMISSIBILITY

( EEC TREATY , ARTICLE 177 AND SECOND PARAGRAPH OF ARTICLE 215 )

4 . MEMBER STATES - INFRINGEMENT OF COMMUNITY OR NATIONAL LAW WHEN APPLYING COMMUNITY LAW - NON-CONTRACTUAL LIABILITY - ASSESSMENT ACCORDING TO NATIONAL LAW

5 . EEC - NON-CONTRACTUAL LIABILITY - DETERMINATION - EXCLUSIVE JURISDICTION OF THE COURT

( EEC TREATY , ARTICLE 178 AND SECOND PARAGRAPH OF ARTICLE 215 )

1 . IT FOLLOWS FROM THE LEGISLATIVE AND JUDICIAL SYSTEM ESTABLISHED BY THE TREATY THAT , ALTHOUGH RESPECT FOR THE PRINCIPLE OF THE RULE OF LAW WITHIN THE COMMUNITY CONTEXT ENTAILS FOR PERSONS AMENABLE TO COMMUNITY LAW THE RIGHT TO CHALLENGE THE VALIDITY OF REGULATIONS BY LEGAL ACTION , THAT PRINCIPLE ALSO IMPOSES UPON ALL PERSONS SUBJECT TO COMMUNITY LAW THE OBLIGATION TO ACKNOWLEDGE THAT REGULATIONS ARE FULLY EFFECTIVE SO LONG AS THEY HAVE NOT BEEN DECLARED TO BE INVALID BY A COMPETENT COURT .

2 . IN THE ABSENCE OF ANY EXPRESS PROVISION PERMITTING DEROGATIONS THE NATIONAL AUTHORITIES HAVING THE TASK OF APPLYING A REGULATION MAY NOT GRANT EXEMPTIONS FROM THE CONDITIONS LAID DOWN BY THAT REGULATION .

3 . A QUESTION RELATING TO THE APPLICATION OF THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY CANNOT BE DETERMINED IN PROCEEDINGS FOR A PRELIMINARY RULING .

4 . THE QUESTION OF COMPENSATION BY A NATIONAL AGENCY FOR DAMAGE CAUSED TO PRIVATE INDIVIDUALS BY THE AGENCIES AND SERVANTS OF MEMBER STATES , EITHER BY REASON OF AN INFRINGEMENT OF COMMUNITY LAW OR BY AN ACT OR OMISSION CONTRARY TO NATIONAL LAW , IN THE APPLICATION OF COMMUNITY LAW DOES NOT FALL WITHIN THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY AND MUST BE DETERMINED BY THE NATIONAL COURTS IN ACCORDANCE WITH THE NATIONAL LAW OF THE MEMBER STATE CONCERNED .

5 . THE APPLICATION OF THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY FALLS WITHIN THE EXCLUSIVE JURISDICTION OF THE COURT OF JUSTICE AND LIES OUTSIDE THAT OF THE NATIONAL COURTS .

IN CASE 101/78

REFERENCE TO THE COURT UNDER ARTICLE 117 OF THE EEC TREATY BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

GRANARIA BV ROTTERDAM ,

AND

HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUKTEN , THE HAGUE ,

ON THE INTERPRETATION OF , INTER ALIA , COUNCIL REGULATION ( EEC ) NO 563/76 ON THE COMPULSORY PURCHASE OF SKIMMED-MILK POWDER HELD BY INTERVENTION AGENCIES FOR USE IN FEEDINGSTUFFS ( OFFICIAL JOURNAL NO L 67 OF 15 MARCH 1976 , P . 18 ) AND ALSO THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY ,

1BY AN ORDER OF 31 MARCH 1978 , WHICH WAS RECEIVED AT THE COURT ON 27 APRIL 1978 , THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN REFERRED TO THE COURT FOR A PRELIMINARY RULING PURSUANT TO ARTICLE 177 OF THE EEC TREATY A NUMBER OF QUESTIONS RELATING TO THE INTERPRETATION OF VARIOUS PROVISIONS OF COMMUNITY LAW , WITH SPECIAL REFERENCE TO THE FIELD OF LIABILITY FOR DAMAGE CAUSED BY LEGISLATIVE MEASURES DECLARED TO BE INVALID .

2THOSE QUESTIONS HAVE BEEN REFERRED IN THE CONTEXT OF PROCEEDINGS BETWEEN AN UNDERTAKING WHICH IMPORTS FEEDINGSTUFFS , THE PLAINTIFF IN THE MAIN ACTION , AND THE COMPETENT NETHERLANDS AUTHORITY , THE DEFENDANT IN THE MAIN ACTION , CONCERNING LIABILITY FOR THE DAMAGE WHICH THE PLAINTIFF IN THE MAIN ACTION CLAIMS TO HAVE SUFFERED AS A RESULT OF A DECISION TAKEN BY THE DEFENDANT PURSUANT TO COUNCIL REGULATION ( EEC ) NO 563/76 OF 15 MARCH 1976 ON THE COMPULSORY PURCHASE OF SKIMMED-MILK POWDER HELD BY INTERVENTION AGENCIES FOR USE IN FEEDINGSTUFFS ( OFFICIAL JOURNAL NO L 67 OF 15 MARCH 1976 , P . 18 ), WHICH WAS SUBSEQUENTLY DECLARED TO BE NULL AND VOID BY THE COURT ' S JUDGMENT OF 5 JULY 1977 , IN CASE 116/76 , GRANARIA BV V HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUKTEN ( 1977 ) ECR 1247 .

THE FIRST QUESTION

3THE FIRST QUESTION ASKS , IN ESSENCE , WHETHER THE COMPETENT NATIONAL ADMINISTRATIVE AUTHORITY WAS OBLIGED TO REFUSE TO ISSUE A ' ' PROTEIN CERTIFICATE ' ' PURSUANT TO REGULATION NO 563/76 TO ALL THOSE PERSONS WHO DID NOT FULFIL THE CONDITIONS LAID DOWN BY THAT REGULATION AS LONG AS IT HAD NOT BEEN DECLARED TO BE INVALID .

4EVERY REGULATION WHICH IS BROUGHT INTO FORCE IN ACCORDANCE WITH THE TREATY MUST BE PRESUMED TO BE VALID SO LONG AS A COMPETENT COURT HAS NOT MADE A FINDING THAT IT IS INVALID .

THIS PRESUMPTION MAY BE DERIVED , ON THE ONE HAND , FROM ARTICLES 173 , 174 AND 184 OF THE TREATY , WHICH RESERVE TO THE COURT OF JUSTICE ALONE THE POWER TO REVIEW THE LEGALITY OF REGULATIONS AND TO DETERMINE , WHERE NECESSARY , TO WHAT EXTENT THEY ARE TO BE DECLARED TO BE INVALID AND , ON THE OTHER HAND , FROM ARTICLE 177 , WHICH EMPOWERS THE SAME COURT TO GIVE RULINGS AS A COURT OF LAST INSTANCE ON THE VALIDITY OF REGULATIONS WHERE A DISPUTE ON THAT ISSUE HAS BEEN BROUGHT BEFORE A NATIONAL COURT .

5THUS IT FOLLOWS FROM THE LEGISLATIVE AND JUDICIAL SYSTEM ESTABLISHED BY THE TREATY THAT , ALTHOUGH RESPECT FOR THE PRINCIPLE OF THE RULE OF LAW WITHIN THE COMMUNITY CONTEXT ENTAILS FOR PERSONS AMENABLE TO COMMUNITY LAW THE RIGHT TO CHALLENGE THE VALIDITY OF REGULATIONS BY LEGAL ACTION , THAT PRINCIPLE ALSO IMPOSES UPON ALL PERSONS SUBJECT TO COMMUNITY LAW THE OBLIGATION TO ACKNOWLEDGE THAT REGULATIONS ARE FULLY EFFECTIVE SO LONG AS THEY HAVE NOT BEEN DECLARED TO BE INVALID BY A COMPETENT COURT .

6THE ANSWER TO THE FIRST QUESTION MUST THEREFORE BE THAT SO LONG AS REGULATION NO 563/76 OF 15 MARCH 1976 HAD NOT BEEN DECLARED NULL AND VOID UNDER THE TREATY THE NATIONAL AUTHORITIES RESPONSIBLE FOR ITS IMPLEMENTATION WERE OBLIGED TO REFUSE TO ISSUE A ' ' PROTEIN CERTIFICATE ' ' PURSUANT TO THAT REGULATION TO ALL THOSE WHO DID NOT COMPLY WITH THE PRESCRIBED CONDITIONS .

THE SECOND QUESTION

7THE SECOND QUESTION ASKS , IN ESSENCE , WHETHER THE TREATY AND THE PRINCIPLES UPON WHICH IT IS BASED IMPLY THAT THE COMPETENT NATIONAL AUTHORITIES WERE EMPOWERED TO EXEMPT AN APPLICANT FROM THE CONDITIONS LAID DOWN FOR THE ISSUE OF A ' ' PROTEIN CERTIFICATE ' ' PURSUANT TO REGULATION NO 563/76 .

8THE ANSWER TO THIS QUESTION CAN ONLY BE IN THE NEGATIVE SINCE THAT REGULATION DID NOT CONTAIN ANY EXPRESS PROVISION PERMITTING DEROGATIONS FROM THOSE CONDITIONS AND IN THE PRESENT CASE NO OVERRIDING PRINCIPLE OF COMMUNITY LAW MIGHT BE RELIED UPON IN ORDER TO PERMIT THE NATIONAL AUTHORITIES TO INTERPRET THE REGULATION DIFFERENTLY .

THE THIRD QUESTION

9THE THIRD QUESTION ASKS , IN ESSENCE , WHETHER THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY MUST BE UNDERSTOOD AS MEANING THAT , SINCE THE COMMUNITY ADOPTED REGULATION NO 563/76 , IT IS DIRECTLY LIABLE TOWARDS PERSONS WHO CLAIM TO HAVE BEEN INJURED FOR THE DAMAGE WHICH THEY HAVE SUFFERED MERELY BY REASON OF THE FACT THAT THE NATIONAL AUTHORITIES APPLIED THE REGULATION .

10THE COURT IN ITS JUDGMENT OF 25 MAY 1978 IN JOINED CASES 83 AND 94/76 , 4 , 15 AND 40/77 , BAYERISCHE HNL V COUNCIL AND COMMISSION ( 1978 ) ECR 1209 , STATED THAT THE FINDING THAT REGULATION NO 563/76 IS NULL AND VOID IS INSUFFICIENT BY ITSELF TO RENDER THE COMMUNITY LIABLE UNDER THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY .

THE ABOVE REFERENCE TO THAT DECISION REMOVES THE NEED FOR THE COURT TO ANSWER THE QUESTION REFERRED TO IT , ESPECIALLY AS A QUESTION RELATING TO THE APPLICATION OF THE SECOND PARAGRAPH OF ARTICLE 215 CANNOT BE DETERMINED IN PROCEEDINGS UNDER ARTICLE 177 OF THE TREATY .

THE FOURTH AND FIFTH QUESTIONS

11SINCE THE FOURTH AND FIFTH QUESTIONS WERE REFERRED IN CASE THE THIRD QUESTION SHOULD BE ANSWERED IN THE AFFIRMATIVE THEY ARE CONSEQUENTLY DEVOID OF PURPOSE .

THE SIXTH QUESTION

12THE SIXTH QUESTION , IN ESSENCE , ASKS WHETHER THE NATIONAL COURT , ON THE ASSUMPTION THAT IT HAS TO DECIDE WHETHER AND TO WHAT EXTENT THE NATIONAL BODY IS LIABLE , MUST APPLY THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY OR SOLELY NETHERLANDS DOMESTIC LAW .

13THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY RELATES ONLY TO THE COMMUNITY ' S LIABILITY FOR ANY DAMAGE CAUSED BY ITS INSTITUTIONS OR BY ITS SERVANTS IN THE PERFORMANCE OF THEIR DUTIES AND DOES NOT REFER TO ANY LIABILITY WHICH THE MEMBER STATES AND THEIR SERVANTS MAY INCUR .

14THE DETERMINATION OF THE COMMUNITY ' S LIABILITY UNDER THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY FALLS WITHIN THE TREATY FALLS WITHIN THE JURISDICTION OF THE COURT OF JUSTICE AS PROVIDED FOR IN ARTICLE 178 OF THE TREATY , AND LIES OUTSIDE THAT OF ANY NATIONAL COURT .

THE QUESTION OF COMPENSATION BY A NATIONAL AGENCY FOR DAMAGE CAUSED TO PRIVATE INDIVIDUALS BY THE AGENCIES AND SERVANTS OF MEMBER STATES , EITHER BY REASON OF AN INFRINGEMENT OF COMMUNITY LAW OR BY AN ACT OR OMISSION CONTRARY TO NATIONAL LAW , IN THE APPLICATION OF COMMUNITY LAW DOES NOT FALL WITHIN THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY AND MUST BE DETERMINED BY THE NATIONAL COURTS IN ACCORDANCE WITH THE NATIONAL LAW OF THE MEMBER STATE CONCERNED .

THE SEVENTH AND EIGHTH QUESTIONS

15THESE QUESTIONS REFER TO THE POSSIBLE APPLICATION OF THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY BY THE NATIONAL COURT .

16IT IS CLEAR FROM THE FOREGOING THAT THE APPLICATION OF THAT PROVISION FALLS WITHIN THE EXCLUSIVE JURISDICTION OF THE COURT OF JUSTICE AND LIES OUTSIDE THAT OF THE NATIONAL COURTS .

THESE QUESTIONS ARE CONSEQUENTLY DEVOID OF PURPOSE .

COSTS

17THE COSTS INCURRED BY THE NETHERLANDS GOVERNMENT AND BY THE COUNCIL AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS

THE COURT ,

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN BY ORDER OF 31 MARCH 1978 , HEREBY RULES :

1 . SO LONG AS REGULATION NO 563/76 OF 15 MARCH 1976 HAD NOT BEEN DECLARED NULL AND VOID UNDER THE TREATY THE NATIONAL AUTHORITIES RESPONSIBLE FOR ITS IMPLEMENTATION WERE OBLIGED TO REFUSE TO ISSUE A ' ' PROTEIN CERTIFICATE ' ' UNDER THAT REGULATION TO ALL THOSE WHO DID NOT COMPLY WITH THE PRESCRIBED CONDITIONS .

2 . IN THE ABSENCE OF AN EXPRESS DEROGATIVE CLAUSE THE NATIONAL AUTHORITIES COULD NOT GRANT EXEMPTIONS FROM THE CONDITIONS PRESCRIBED BY THE REGULATION .

3 . THE QUESTION OF COMPENSATION BY A NATIONAL AGENCY FOR DAMAGE CAUSED TO PRIVATE INDIVIDUALS BY THE AGENCIES AND SERVANTS OF MEMBER STATES , EITHER BY REASON OF AN INFRINGEMENT OF COMMUNITY LAW OR BY AN ACT OR OMISSION CONTRARY TO NATIONAL LAW , IN THE APPLICATION OF COMMUNITY LAW DOES NOT FALL WITHIN THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY AND MUST BE DETERMINED BY THE NATIONAL COURTS IN ACCORDANCE WITH THE NATIONAL LAW OF THE MEMBER STATE CONCERNED .