61981J0051

ACTION FOR DAMAGES - PERIOD OF LIMITATION - DATE OF COMMENCEMENT - LIABILITY ARISING FROM A LEGISLATIVE MEASURE - DATE ON WHICH THE INJURIOUS EFFECTS OF THE MEASURE ARE PRODUCED

( EEC TREATY , ART . 178 AND SECOND PARAGRAPH OF ART . 215 ; PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC , ART . 43 )

AS IS APPARENT FORM ARTICLE 215 OF THE EEC TREATY AND ARTICLE 43 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC , THE INVOLVEMENT OF THE NON-CONTRACTUAL LIABILITY OF THE COMMUNITY AND THE ASSERTION OF THE RIGHT TO COMPENSATION FOR DAMAGE SUFFERED DEPEND ON THE SATISFACTION OF A NUMBER OF REQUIREMENTS RELATING TO THE EXISTENCE OF AN UNLAWFUL MEASURE ADOPTED BY THE COMMUNITY INSTITUTIONS , ACTUAL DAMAGE AND A CAUSAL RELATIONSHIP BETWEEN THEM .

THE PERIOD OF LIMITATION WHICH APPLIES TO PROCEEDINGS IN MATTERS ARISING FROM THE NON-CONTRACTUAL LIABILITY OF THE COMMUNITY THEREFORE CANNOT BEGIN BEFORE ALL THE REQUIREMENTS GOVERNING THE OBLIGATION TO PROVIDE COMPENSATION FOR DAMAGE ARE SATISFIED AND IN PARTICULAR BEFORE THE DAMAGE TO BE MADE GOOD HAS MATERIALIZED . ACCORDINGLY , SINCE THE SITUATIONS CONCERNED ARE THOSE IN WHICH THE LIABILITY OF THE COMMUNITY HAS ITS ORIGIN IN A LEGISLATIVE MEASURE , THE PERIOD OF LIMITATION CANNOT BEGIN BEFORE THE INJURIOUS EFFECTS OF THAT MEASURE HAVE BEEN PRODUCED .

IN CASE 51/81

DE FRANCESCHI SPA MONFALCONE , WHOSE REGISTERED OFFICE IS AT MONFALCONE , ACTING THROUGH ITS LEGAL REPRESENTATIVE FOR THE TIME BEING , COCLITE DE FRANCESCHI , REPRESENTED AND ASSISTED FOR THE PURPOSE OF THE PRESENT PROCEEDINGS BY GIOVANNI MARIA UBERTAZZI AND FAUSTO CAPELLI , OF THE MILAN BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF LOUIS SCHILTZ , 83 BOULEVARD GRANDE-DUCHESSE-CHARLOTTE ,

APPLICANT ,

V

COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY DANIEL VIGNES , DIRECTOR OF THE LEGAL DEPARTMENT OF THE COUNCIL OF THE EUROPEAN COMMUNITIES , ASSISTED BY ARTHUR BRAUTIGAM , ADMINISTRATOR IN THE SAID DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF DOUGLAS FONTEIN , DIRECTOR IN THE DIRECTORATE FOR LEGAL QUESTIONS OF THE EUROPEAN INVESTMENT BANK , 100 BOULEVARD KONRAD ADENAUER ,

AND

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , RICHARD WAINWRIGHT , ACTING AS AGENT , ASSISTED BY GUIDO BERARDIS , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

OBJECTION OF INADMISSIBILITY RAISED BY THE COUNCIL AND THE COMMISSION OF THE EUROPEAN COMMUNITIES PURSUANT TO ARTICLE 91 OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE AGAINST AN ACTION FOR DAMAGES UNDER ARTICLES 215 AND 178 OF THE EEC TREATY ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 9 MARCH 1981 THE APPLICANT BROUGHT AN ACTION UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY FOR COMPENSATION FOR DAMAGE CAUSED TO IT BY REGULATION NO 665 OF 4 MARCH 1975 ABOLISHING THE PRODUCTION REFUNDS IN RESPECT OF MAIZE GROATS AND MEAL USED FOR THE BREWING OF BEER AND AS A RESULT OF THE FAILURE TO RESTORE THE REFUNDS IN RESPECT OF THE PERIOD FROM 4 APRIL 1977 TO 19 OCTOBER 1977 , THE LATTER BEING THE RETROACTIVE DATE OF APPLICATION OF COUNCIL REGULATION ( EEC ) NO 1125/78 OF 12 MAY 1978 WHICH REINTRODUCED THE ABOVE-MENTIONED SYSTEM OF PRODUCTION REFUNDS .

2 THE COUNCIL AND THE COMMISSION HAVE RAISED A PRELIMINARY OBJECTION UNDER ARTICLE 91 OF THE RULES OF PROCEDURE FOUNDED ON THE FIVE-YEAR PERIOD OF LIMITATION UNDER ARTICLE 43 OF THE PROTOCOL ON THE STATUTE OF THE COURT ( EEC ) ( HEREINAFTER REFERRED TO AS ' ' THE STATUTE OF THE COURT ' ' ) ACCORDING TO WHICH ' ' PROCEEDINGS AGAINST THE COMMUNITY IN MATTERS ARISING FROM NON-CONTRACTUAL LIABILITY SHALL BE BARRED AFTER A PERIOD OF FIVE YEARS FROM THE OCCURRENCE OF THE EVENT GIVING RISE THERETO ' ' AND ' ' THE PERIOD OF LIMITATION SHALL BE INTERRUPTED IF PROCEEDINGS ARE INSTITUTED BEFORE THE COURT OR IF PRIOR TO SUCH PROCEEDINGS AN APPLICATION IS MADE BY THE AGGRIEVED PARTY TO THE RELEVANT INSTITUTION OF THE COMMUNITY . ' ' THE COURT HAS DECIDED TO GIVE JUDGMENT ON THE PRELIMINARY OBJECTION WITHOUT CONSIDERING THE SUBSTANCE OF THE CASE .

3 THE DEFENDANTS PLEAD THAT THE ACTION IS INADMISSIBLE BECAUSE THE APPLICANT WAS OUT OF TIME IN SUBMITTING TO THE COMMISSION ITS APPLICATION FOR PAYMENT OF THE REFUNDS IN RESPECT OF THE PERIOD FROM 4 APRIL TO 19 OCTOBER 1977 . THAT APPLICATION WAS MADE TO THE COMMISSION ON 15 APRIL 1980 .

4 THE DEFENDANTS CONTEND THAT THE COMMENCEMENT OF THE PERIOD OF LIMITATION LAID DOWN BY ARTICLE 43 OF THE STATUTE OF THE COURT MUST BE TAKEN AS BEING THE MOMENT WHEN IT BECOMES POSSIBLE TO INSTITUTE PROCEEDINGS IN MATTERS ARISING FROM LIABILITY AND THAT , MOREOVER , ACCORDING TO THE CASE-LAW OF THE COURT SUCH PROCEEDINGS MAY BE INSTITUTED WHEN THE DAMAGE MAY BE CONSIDERED TO BE IMMINENT AND FORESEEABLE WITH SUFFICIENT CERTAINTY EVEN THOUGH IT CANNOT BE PRECISELY QUANTIFIED EXCEPT AS THE RESULT OF ASSESSMENT AT A LATER STAGE .

5 ACCORDING TO THE DEFENDANTS THE COMMENCEMENT OF THE FIVE-YEAR PERIOD OF LIMITATION MUST BE 20 MARCH 1975 , THE DATE OF PUBLICATION OF REGULATION NO 665 OF 4 MARCH 1975 , WHICH THE COURT IN ITS JUDGMENTS OF 19 OCTOBER 1977 IN JOINED CASES 124/76 AND 20/77 HELD TO BE INVALID .

6 IT FOLLOWS , IN THE DEFENDANT ' S VIEW , THAT THE APPLICANT COULD HAVE BROUGHT ITS ACTION AS FROM 20 MARCH 1975 SINCE THE PUBLICATION OF THE UNLAWFUL REGULATION WHICH WAS AT THE ORIGIN OF THE DAMAGE SUSTAINED BY THE APPLICANT MAY BE CONSIDERED AS THE EVENT GIVING RISE TO THE COMMUNITY ' S LIABILITY AND SHOULD THEREFORE CONSTITUTE THE COMMENCEMENT OF THE FIVE-YEAR PERIOD OF LIMITATION LAID DOWN BY ARTICLE 43 OF THE STATUTE OF THE COURT .

7 ACCORDING TO THE DEFENDANTS THE APPLICATION SENT TO THE COMMISSION COULD NOT INTERRUPT THE FIVE-YEAR PERIOD OF LIMITATION BECAUSE IT WAS SUBMITTED AFTER THE EXPIRY OF THAT PERIOD , WHILST THOSE SENT TO THE ITALIAN NATIONAL AUTHORITIES ON 23 NOVEMBER 1978 AND 19 DECEMBER 1979 DID NOT INTERRUPT THE PERIOD BECAUSE THEY WERE MADE TO AUTHORITIES WHICH WERE NOT ' ' RELEVANT ' ' WITHIN THE MEANING OF ARTICLE 43 OF THE STATUTE OF THE COURT AND WERE NOT FOLLOWED BY PROCEEDINGS INSTITUTED BY THE APPLICANT IN CONFORMITY WITH THE CONDITIONS LAID DOWN IN THE SECOND PARAGRAPH OF ARTICLE 175 OF THE EEC TREATY .

8 THE APPLICANT ' S ARGUMENT IS ESSENTIALLY TO THE EFFECT THAT THE COMMENCEMENT OF THE FIVE-YEAR PERIOD OF LIMITATION IN RELATION TO MATTERS ARISING FROM THE NON-CONTRACTUAL LIABILITY OF THE COMMUNITY CAN ONLY BE THE MOMENT WHEN , IN A CASE SUCH AS THE PRESENT ONE , THE DAMAGE HAS IN FACT BECOME APPARENT , THAT IS TO SAY , THE DATE ON WHICH THE REFUNDS BECAME PAYABLE AS THE RESULT OF TRANSACTIONS CREATING AN ENTITLEMENT TO THEM .

9 AS IS APPARENT FROM ARTICLE 215 OF THE EEC TREATY AND ARTICLE 43 OF THE STATUTE OF THE COURT , THE INVOLVEMENT OF THE NON-CONTRACTUAL LIABILITY OF THE COMMUNITY AND THE ASSERTION OF THE RIGHT TO COMPENSATION FOR DAMAGE SUFFERED DEPEND ON THE SATISFACTION OF A NUMBER OF REQUIREMENTS RELATING TO THE EXISTENCE OF AN UNLAWFUL MEASURE ADOPTED BY THE COMMUNITY INSTITUTIONS , ACTUAL DAMAGE AND A CAUSAL RELATIONSHIP BETWEEN THEM .

10 THE PERIOD OF LIMITATION WHICH APPLIES TO PROCEEDINGS IN MATTERS ARISING FROM THE NON-CONTRACTUAL LIABILITY OF THE COMMUNITY THEREFORE CANNOT BEGIN BEFORE ALL THE REQUIREMENTS GOVERNING THE OBLIGATION TO PROVIDE COMPENSATION FOR DAMAGE ARE SATISFIED AND IN PARTICULAR BEFORE THE DAMAGE TO BE MADE GOOD HAS MATERIALIZED . ACCORDINGLY , SINCE THE SITUATIONS CONCERNED ARE THOSE IN WHICH THE LIABILITY OF THE COMMUNITY HAS ITS ORIGIN IN A LEGISLATIVE MEASURE , THE PERIOD OF LIMITATION CANNOT BEGIN BEFORE THE INJURIOUS EFFECTS OF THAT MEASURE HAVE BEEN PRODUCED , AND CONSEQUENTLY , IN THE CIRCUMSTANCES OF THIS CASE , BEFORE THE TIME AT WHICH THE APPLICANT , AFTER COMPLETING THE TRANSACTIONS ENTITLING IT TO THE REFUNDS , WAS BOUND TO INCUR DAMAGE WHICH WAS CERTAIN IN CHARACTER .

11 ACCORDINGLY , IT MAY NOT BE CLAIMED , AS AGAINST THE APPLICANT , THAT THE PERIOD OF LIMITATION BEGAN BEFORE THE DATE ON WHICH THE INJURIOUS EFFECTS OF THE UNLAWFUL MEASURE ADOPTED BY THE COMMUNITY WERE PRODUCED .

12 IT FOLLOWS FROM THIS , MOREOVER , THAT THE COMMENCEMENT OF THE PERIOD OF LIMITATION CANNOT BE THE DATE ON WHICH THE UNLAWFUL MEASURES ADOPTED BY THE COMMUNITY ENTERED INTO FORCE OR , A FORTIORI , THE DATE OF THEIR PUBLICATION .

13 THE PRELIMINARY OBJECTION RAISED BY THE COUNCIL AND COMMISSION MUST THEREFORE BE DISMISSED .

ON THOSE GROUNDS ,

THE COURT

BY WAY OF INTERLOCUTORY DECISION , HEREBY :

1 . DISMISSES THE OBJECTIONS ;

2 . RESERVES THE COSTS .