61977J0132

AGRICULTURE - SHORT-TERM ECONOMIC POLICY - MONETARY COMPENSATORY AMOUNTS - EXEMPTION FROM THE BURDEN - CLAUSE TO ENSURE NATURAL JUSTICE - AT THE DISCRETION OF THE MEMBER STATES - INTERVENTION BY THE COMMISSION - CONDITIONS

( REGULATION NO 1608/74 OF THE COMMISSION , ART . 4 )

REGULATION NO 1608/74 , IN PRINCIPLE , ENTRUSTED THE ADMINISTRATION OF THE SYSTEM UNDER THE CLAUSE TO ENSURE NATURAL JUSTICE TO THE MEMBER STATES AND GAVE THEM A WIDE DISCRETION , MAKING THEM RESPONSIBLE FOR THE DECISION , IN EACH PARTICULAR CASE , AS TO WHETHER OR NOT TO AVAIL THEMSELVES OF THE CLAUSE .

THE COMMISSION MAY INTERVENE , IN THE CIRCUMSTANCES PROVIDED FOR IN ARTICLE 4 OF THE REGULATION , ONLY IN RELATION TO SPECIFIC CONTRACTS IN RESPECT OF WHICH THE MEMBER STATE IN QUESTION INTENDS TO MAKE USE OF THE CLAUSE TO ENSURE NATURAL JUSTICE AND INFORMS THE COMMISSION OF ITS INTENTION . ONLY AFTER SUCH NOTIFICATION MAY THE COMMISSION , UNDER ARTICLE 4 ( 2 ), CONSIDER THE INDIVIDUAL CASE IN WHICH IT IS INTENDED TO GRANT EXEMPTION AND STATE ANY OBJECTION WHICH IT MAY HAVE TO THE MEASURE CONTEMPLATED .

IN CASE 132/77

SOCIETE POUR L ' EXPORTATION DES SUCRES , S.A ., WHOSE REGISTERED OFFICE IS IN ANTWERP , REPRESENTED BY WILMA VISCARDINI , ADVOCATE OF THE PADUA BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , 34 B RUE PHILIPPE II ,

APPLICANT ,

V

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

DEFENDANT ,

CONCERNING , AT THE PRESENT STAGE OF THE PROCEEDINGS , THE ADMISSIBILITY OF THE APPLICATION MADE UNDER THE SECOND PARAGRAPH OF ARTICLE 173 AND ALTERNATIVELY UNDER THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY ,

1BY APPLICATION LODGED ON 31 OCTOBER 1977 UNDER THE SECOND PARAGRAPH OF ARTICLE 173 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY THE APPLICANT CLAIMS , PRINCIPALLY , THAT THE COURT SHOULD ' ' ANNUL THE DECISION TAKEN BY THE COMMISSION UNDER ARTICLE 4 ( 2 ) OF REGULATION ( EEC ) NO 1608/74 , EXCLUDING CERTAIN CONTRACTS FROM EXEMPTION FROM THE FRENCH MONETARY COMPENSATORY AMOUNTS SOLELY BECAUSE THEY WERE CONCLUDED BEFORE MAY 1975 ' ' , THAT IS TO SAY AT A DATE WHEN MONETARY COMPENSATORY AMOUNTS APPLIED IN FRANCE TO SUGAR .

2IN SUPPORT OF ITS CONCLUSIONS IT MAINTAINS THAT IT WAS AS A RESULT OF THE COMMISSION ' S OBJECTION AT THE OUTCOME OF THE SAID PROCEDURE IN ITS TELEX MESSAGE OF 25 FEBRUARY 1977 SENT TO THE FRENCH AUTHORITIES THAT THE LATTER WERE UNABLE TO GRANT IT EXEMPTION FROM THE MONETARY COMPENSATORY AMOUNTS RE-INTRODUCED IN FRANCE ON 25 MARCH 1976 IN RESPECT OF SUPPLIES OF SUGAR TO BE MADE UNDER TWO CONTRACTS ENTERED INTO ON 18 AND 19 MARCH 1975 .

3IN THE ALTERNATIVE , THE APPLICANT CLAIMS COMPENSATION FOR THE DAMAGE WHICH IT HAS SUFFERED , SINCE THE REFUSAL OF THE FRENCH AUTHORITIES TO GRANT EXEMPTION FROM THE MONETARY COMPENSATORY AMOUNTS WAS , IN ITS OPINION , THE RESULT OF THE WRONGFUL ACT OF THE COMMISSION .

4BY APPLICATION LODGED ON 5 DECEMBER 1977 UNDER ARTICLE 91 OF THE RULES OF PROCEDURE OF THE COURT THE DEFENDANT PLEADED THAT THE ACTION WAS INADMISSIBLE BECAUSE THE REFUSAL WAS NOT DUE TO AN ACT OF THE COMMISSION .

5IT MAINTAINS THAT IT HAS ADOPTED NO MEASURE IN THE PRESENT CASE WHICH COULD BIND THE POWER OF DECISION OF THE FRENCH AUTHORITIES WITH REGARD TO THE REFUSAL TO GRANT THE EXEMPTION FOR WHICH THE APPLICANT APPLIED TO THEM .

6IN ITS TELEX MESSAGE OF 25 FEBRUARY 1977 SENT TO THE FRENCH PERMANENT REPRESENTATION THE COMMISSION CONFINED ITSELF TO CONSIDERING THE CONTRACTS NOTIFIED BY THE FRENCH GOVERNMENT ON 20 JANUARY 1977 - WHICH IN ANY EVENT DID NOT INCLUDE THE CONTRACTS IN QUESTION - IN THE LIGHT OF THE CRITERIA LAID DOWN IN ARTICLE 2 OF REGULATION NO 1608/74 AND WITHOUT INSTITUTING THE PROCEDURE REFERRED TO IN ARTICLE 4 OF THE SAID REGULATION .

7THE APPLICANT ALLEGES , ON THE CONTRARY , THAT THE PROCEDURE OF ARTICLE 4 OF REGULATION NO 1608/74 WAS INDEED INSTITUTED IN THE PRESENT CASE , SINCE IN THE AFOREMENTIONED TELEX MESSAGE THE COMMISSION HAD FORMALLY GIVEN ITS VIEWS ON THE SUBJECT OF THE FRENCH GOVERNMENT ' S INTENTION TO GRANT EXEMPTIONS , OF WHICH INTENTION THE COMMISSION HAD BEEN INFORMED IN ACCORDANCE WITH ARTICLE 4 ( 1 ).

8ALTHOUGH THE VIEW EXPRESSED BY THE COMMISSION REFERRED TO CONTRACTS OTHER THAN THOSE IN QUESTION , IT WAS NEVERTHELESS BASED SOLELY ON THE FACT THAT THE CONTRACTS WERE ENTERED INTO BEFORE MAY 1975 AND THEREFORE EXTENDS TO THE CONTRACTS IN QUESTION , WHICH WERE ENTERED INTO IN MARCH 1975 .

9THE LETTER OF 30 SEPTEMBER 1977 SENT TO THE APPLICANT BY THE FONDS D ' INTERVENTION ET DE REGULARISATION DU MARCHE DU SUCRE ( THE FRENCH INTERVENTION AGENCY FOR SUGAR ) SHOWS , MOREOVER , THAT THE POSITION ADOPTED BY THE COMMISSION WAS DECISIVE IN THE PRESENT CASE , SINCE THE INTERVENTION AGENCY MADE EXPRESS REFERENCE THERETO TO JUSTIFY ITS REFUSAL .

10IT IS APPROPRIATE TO CONSIDER THE ADMISSIBILITY OF THE PRINCIPAL CLAIM AND THAT OF THE CLAIM IN THE ALTERNATIVE SEPARATELY .

A - THE PRINCIPAL CLAIM

11REGULATION NO 1608/74 ESTABLISHED A SYSTEM BASED ON A CLAUSE TO ENSURE NATURAL JUSTICE AUTHORIZING MEMBER STATES , ' ' ON A DISCRETIONARY BASIS ' ' , TO GRANT TRADERS COMMITTED TO PERFORMING FIXED CONTRACTS EXEMPTION FROM MONETARY COMPENSATORY AMOUNTS INTRODUCED AFTER THE CONTRACTS WERE ENTERED INTO .

12THE SAID REGULATION DOES NOT PROVIDE FOR THE UNIVERSAL APPLICATION OF THAT CLAUSE TO CLASSES OF CONTRACTS CONSIDERED ON THE BASIS OF CERTAIN COMMON CHARACTERISTICS , BUT STATES EXPRESSLY , IN THE FOURTH RECITAL OF ITS PREAMBLE , THAT THE BENEFIT OF THE CLAUSE TO ENSURE NATURAL JUSTICE SHALL BE GRANTED OR REFUSED ON THE BASIS OF AN EXAMINATION OF EACH INDIVIDUAL CASE IN THE LIGHT OF THE LOSS SUFFERED BY THE TRADER CONCERNED .

13AS APPEARS FROM THE SIXTH RECITAL , THE REGULATION , IN PRINCIPLE , ENTRUSTED THE ADMINISTRATION OF THE RULES CONCERNED TO THE MEMBER STATES AND GAVE THEM A WIDE DISCRETION , MAKING THEM RESPONSIBLE FOR THE DECISION , IN EACH PARTICULAR CASE , AS TO WHETHER OR NOT TO AVAIL THEMSELVES OF THE CLAUSE .

14INTERVENTION BY THE COMMISSION RESTRICTING THE DISCRETION OF A MEMBER STATE IS PROVIDED FOR BY THE REGULATION ONLY IN THE CASE , REFERRED TO IN ARTICLE 4 , OF CONTRACTS THE DURATION OF WHICH EXCEEDS THREE MONTHS OR THE PERIOD OF VALIDITY OF THE EXPORT CERTIFICATE , WHERE THE CERTIFICATE INCLUDES A PRIOR FIXING OF THE LEVY OR THE REBATE IN EXCESS OF THREE MONTHS .

15HOWEVER , IT APPEARS FROM THE ABOVE-MENTIONED ARTICLE , AND IN PARTICULAR FROM THE WORDS ' ' IN A GIVEN CASE ' ' AT THE BEGINNING OF THE FIRST PARAGRAPH , THAT THE COMMISSION MAY INTERVENE ONLY IN RELATION TO SPECIFIC CASES IN RESPECT OF WHICH THE MEMBER STATE IN QUESTION INTENDS TO MAKE USE OF THE CLAUSE TO ENSURE NATURAL JUSTICE AND INFORMS THE COMMISSION OF ITS INTENTION , ' ' INDICATING THE REASONS THEREFOR AND THE PROOF FURNISHED ' ' , IN ORDER TO ENABLE IT TO ASSESS ALL THE FACTS CAPABLE OF JUSTIFIYING EXEMPTION FROM THE MONETARY COMPENSATORY AMOUNTS .

16ONLY AFTER SUCH NOTIFICATION MAY THE COMMISSION , UNDER ARTICLE 4 ( 2 ), CONSIDER THE INDIVIDUAL CASE IN WHICH IT IS INTENDED TO GRANT EXEMPTION AND STATE ANY OBJECTION WHICH IT MAY HAVE TO THE MEASURE CONTEMPLATED .

17IT IS CLEAR THAT THE FRENCH GOVERNMENT DID NOT INFORM THE COMMISSION OF ITS INTENTION TO GRANT EXEMPTION FROM THE MONETARY COMPENSATORY AMOUNTS IN RESPECT OF THE CONTRACTS AT ISSUE IN THE PRESENT CASE , REGISTERED WITH THE INTERVENTION AGENCY UNDER NOS S 125 AND S 172 .

18IN ITS NOTIFICATION OF INTENTION TO GRANT EXEMPTIONS DATED 19 JANUARY 1977 , RECEIVED BY THE COMMISSION ON 20 JANUARY 1977 , THE FRENCH PERMANENT REPRESENTATION DOES NOT MENTION , AMONG THE CONTRACTS LISTED IN THE MEMORANDUM , INCLUDING THOSE RELATING TO SUPPLIES OF SUGAR , THE CONTRACTS IN QUESTION .

19IN ITS TELEX MESSAGE OF 25 FEBRUARY 1977 RELATING TO THAT NOTIFICATION THE COMMISSION REFERRED SOLELY TO THE CONTRACTS LISTED IN THE SAID MEMORANDUM , REQUESTING , ON THE ONE HAND , FURTHER INFORMATION REGARDING SOME OF THOSE CONTRACTS AND , ON THE OTHER , STATING ITS OBJECTION TO THE GRANT OF EXEMPTION FROM THE MONETARY COMPENSATORY AMOUNTS WITH REGARD TO OTHER CONTRACTS , WHICH RELATED TO THE SUPPLY OF CEREALS .

20THUS , IN THE ABSENCE OF NOTIFICATION OF THE INTENTION TO GRANT EXEMPTIONS WITHIN THE MEANING OF ARTICLE 4 ( 1 ) OF REGULATION NO 1608/74 IN RELATION TO THE CONTRACTS AT ISSUE , AND HAVING REGARD TO THE SCOPE OF THE COMMISSION ' S TELEX MESSAGE OF 25 FEBRUARY 1977 , NO INTERVENTION ON THE PART OF THE COMMISSION WITHIN THE MEANING OF THE AFORESAID ARTICLE 4 IN RESPECT OF THOSE CONTRACTS MAY BE SAID TO HAVE TAKEN PLACE .

21IT MUST THEREFORE BE CONCLUDED THAT THE APPLICATION FOR ANNULMENT UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY IS INADMISSIBLE , SINCE IN THE PRESENT CASE THERE WAS NO DECISION BY THE COMMISSION WITHIN THE MEANING OF THE SAID ARTICLE .

B - THE CLAIM IN THE ALTERNATIVE

22THE APPLICANT ALLEGES , HOWEVER , IN SUPPORT OF ITS CONCLUSION IN THE ALTERNATIVE BASED ON THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY , THAT EVEN IN THE ABSENCE OF ANY INTERVENTION ON THE PART OF THE COMMISSION WITHIN THE MEANING OF ARTICLE 4 OF REGULATION NO 1608/74 THE ATTITUDE CONVEYED BY THE COMMISSION IN THE AFOREMENTIONED TELEX MESSAGE OF 25 FEBRUARY 1977 WAS NEVERTHELESS RESPONSIBLE FOR THE REFUSAL ON THE PART OF THE INTERVENTION AGENCY WHICH , IN ITS LETTER OF 30 SEPTEMBER 1977 , STATED ' ' IN VIEW OF THIS ATTITUDE . . . THAT IT HAS NOT BEEN POSSIBLE TO GRANT EXEMPTION FROM THE MONETARY COMPENSATORY AMOUNTS IN REQUEST OF THE DELIVERIES OF SUGAR WHICH HAVE BEEN MADE . . . UNDER . . . CONTRACTS NOS S 125 AND S 172 ENTERED INTO IN MARCH 1975 ' ' .

23SINCE THE APPLICATION OF ARTICLE 4 OF REGULATION NO 1608/74 INVOLVES THE INDIVIDUAL EXAMINATION OF EACH CASE , AND HAVING REGARD TO THE FACT THAT THE COMMISSION WAS NOT PUT IN A POSITION TO EXAMINE THE CONTRACTS IN QUESTION , NO ACT ATTRIBUTABLE TO IT IN RELATION TO EXEMPTION FROM THE MONETARY COMPENSATORY AMOUNTS MAY BE SAID TO HAVE TAKEN PLACE IN THE PRESENT INSTANCE .

24IN THESE CIRCUMSTANCES THE RELATIONSHIP ESTABLISHED BY THE AFOREMENTIONED LETTER FROM THE INTERVENTION AGENCY BETWEEN THE DECISION TO REJECT THE APPLICATION FOR SUCH EXEMPTION AND THE COMMISSION ' S TELEX MESSAGE OF 25 FEBRUARY 1977 CAN ONLY BE THE RESULT OF AN APPRAISAL BY THE FRENCH AUTHORITIES THEMSELVES , ON THE BASIS OF WHICH THE COMMISSION CANNOT INCUR LIABILITY IN RESPECT OF THE CONTRACT IN QUESTION .

25EVEN AFTER RECEIVING THAT TELEX MESSAGE IT WAS OPEN TO THE AFOREMENTIONED AUTHORITIES TO INFORM THE COMMISSION OF THEIR INTENTION TO EXEMPT THE CONTRACTS IN QUESTION , SETTING OUT THE PARTICULAR CIRCUMSTANCES SURROUNDING THOSE CONTRACTS , INCLUDING THE FACT THAT FORWARD CONTRACTS FOR THE PURCHASE OF FOREIGN CURRENCY HAD BEEN ENTERED INTO , WHICH FACT , ACCORDING TO THE APPLICANT , HAS A DIRECT BEARING ON THE ALLEGED DAMAGE , AND THUS TO PLACE THE COMMISSION IN A POSITION TO REACH A DECISION , IN FULL KNOWLEDGE OF THE FACTS , AS TO THE POSSIBILITY OF GRANTING THE EXEMPTION IN QUESTION BY WAY OF A REASONED OPINION IN ACCORDANCE WITH THE PROCEDURE OF ARTICLE 4 ( 2 ) OF REGULATION NO 1608/74 .

26FURTHER , THE LETTER OF 7 OCTOBER 1977 REFERRED TO BY THE APPLICANT , WHICH WAS SENT TO IT BY A HIGH OFFICIAL OF THE COMMISSION , STATING THAT THE DECISION OF REJECTION IN THE PRESENT CASE TAKEN BY THE INTERVENTION AGENCY ' ' CLOSELY REFLECTED ' ' THE VIEWS OF THE COMMISSION , DOES NOT EXCLUDE THE POSSIBILITY THAT THE VIEW EXPRESSED BY THE INTERVENTION AGENCY IN CONNEXION WITH THAT DECISION WAS THE RESULT SOLELY OF CONSIDERATION BY THE NATIONAL AUTHORITY ITSELF , ESPECIALLY AS THAT LETTER EMPHASIZES THAT ' ' UNDER ARTICLE 4 OF REGULATION ( EEC ) NO 1608/74 THE MEMBER STATES ALONE HAVE THE RIGHT TO REJECT AN APPLICATION FOR EXEMPTION ' ' .

27IN THESE CIRCUMSTANCES , SINCE THE REFUSAL BY THE NATIONAL AUTHORITIES TO GRANT EXEMPTION FROM THE MONETARY COMPENSATORY AMOUNTS IN RESPECT OF THE CONTRACTS IN QUESTION AROSE FROM AN INDEPENDENT DECISION BY THOSE AUTHORITIES , IT DOES NOT APPEAR THAT IN THE PRESENT CASE THE COMMISSION HAS ACTED IN SUCH A WAY AS TO SATISFY THE CONDITIONS REQUIRED BY THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY FOR BRINGING THE MATTER BEFORE THE COURT .

28FOR THESE REASONS THE PRESENT ACTION MUST BE DISMISSED AS INADMISSIBLE .

COSTS

29UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

30THE APPLICANT HAS FAILED IN ITS SUBMISSIONS .

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE ;

2 . ORDERS THE APPLICANT TO PAY THE COSTS OF THE PROCEEDINGS .