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Document 61977CC0116
Opinion of Mr Advocate General Reischl delivered on 20 June 1978. # G. R. Amylum NV and Tunnel Refineries Limited v Council and Commission of the European Communities. # Isoglucose - Direct action. # Joined cases 116 and 124/77.
Návrhy generálneho advokáta - Reischl - 20. júna 1978.
G. R. Amylum NV a Tunnel Refineries Limited proti Rade a Komisii Európskych spoločenstiev.
Spojené veci 116 a 124/77.
Návrhy generálneho advokáta - Reischl - 20. júna 1978.
G. R. Amylum NV a Tunnel Refineries Limited proti Rade a Komisii Európskych spoločenstiev.
Spojené veci 116 a 124/77.
ECLI identifier: ECLI:EU:C:1978:134
OPINION OF MR ADVOCATE GENERAL REISCHL
DELIVERED ON 20 JUNE 1978 ( 1 )
Mr President,
Members of the Court,
For the facts of these cases, to which I now turn, I can refer to my introduction to Joined Cases 103, 125 and 145/77 in which preliminary rulings were requested, since the present cases are also concerned with isoglucose, the new sweetener made from starch, and the rules relating thereto, namely the introduction of a production levy by Council Regulation (EEC) No 1111/77 of 17 May 1977 (Official Journal of 28 May 1977, L 134, p. 4).
The applicants have for some time either produced isoglucose or invested considerable sums in setting up and extending plant for its production. They take the view that the introduction of the production levy on isoglucose has laid an excessive burden on them with the result that the manufacture of isoglucose will have to be discontinued because it is unprofitable or that its production cannot be commenced. It is alleged that since the said Community rules are from several points of view a sufficiently clear violation of superior rules of law for the protection of the individual and there may consequently be a wrongful act or omission on the part of the responsible Community institutions, the latter are liable to pay compensation for the damage which has been and will be caused by those rules.
Particulars of the claims put forward are as follows:
In Case 116/77 the Council and the Commission, the Community's institutions responsible for the adoption of Council Regulation (EEC) No 1111/77 of 17 May 1977 (Official Journal 1977, L 134, p. 4) and Commission Regulation (EEC) No 1468/77 of 30 June 1977 (Official Journal 1977, L 162, p. 7) should be ordered to pay compensation for the damage resulting therefrom which is provisionally estimated at BF 777 million.
The applicant in Case 124/77 claims that the Council and Commission should be ordered to pay compensation for the damage suffered as a result of the rules relating to the production levy, with special reference to the cost of amortization and of the conversion of the industrial installations planned for the production of isoglucose and also to losses on isoglucose production in the 1977/78 financial year.
Finally the applicant in Case 143/77 in addition to asking for a declaration similar to that in Case 116/77 claims that the Community should be ordered to pay compensation for the damage caused by the regulation, which is provisionally estimated at HFL 154268000.
The Council and Commission contend that the Court should dismiss these claims as being inadmissible, but at least as unfounded (in Cases 116 and 124/77), or as being unfounded (in Case 143/77).
I should now like to mention also that in another case (Case 153/77, Koninklijke Scholten-Honig N. V. v Council and Commission of the European Communities, still sub judice) the applicant also claims damages for discontinuance of the production refund for isoglucose with reference to Council Regulation (EEC) No 1862/76 (Official Journal of 31 July 1976, L 206, p. 3) and Council Regulation (EEC) No 2158/76 (Official Journal of 2 September 1976. L 241, p. 21). That case had not been joined to the proceedings which now have to be dealt with; therefore the problems which it raises have yet to be considered and may be dealt with in a separate opinion.
I — |
Following the defendants' contentions I must first consider the admissibility of the claims. In doing so however I can be relatively brief for reasons which are obvious having regard to what I have said in Joined Cases 103, 125 and 145/77 in which preliminary rulings were requested.
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II — |
Accordingly, as far as the admissibility of the applications is concerned, no effectual objections exist. However, on the question whether they are well founded the following brief observations must be made. The first prerequisite for a claim concerning liability based on the act of a public authority, is that the latter must be shown to be illegal. If the acts in question are legislative and have an economic element in them — and the introduction of a production levy on isoglucose is undoubtedly such an element — then in addition a sufficiently serious breach of a superior rule of law for the protection of the individual is required (judgment of 2 December 1971 in Case 5/71 Aktien-Zuckerfabrik Schöppenstedt v Council of the European Communities [1971] ECR 975). On this point the applicants have relied on arguments most of which are the same as those submitted in connexion with the validity of Regulation No 1111/77 in Cases 103 and 145/77 in which preliminary rulings are requested. In so far as they have put forward further points of view in the proceedings concerning the liability of the authorities I have also already dealt with them in those proceedings. I can therefore now surely refrain from going into all those arguments again and would merely recapitulate that none of the aspects considered — neglect of the objectives of Article 39 of the EEC Treaty, violation of the principle of proportionality, infringement of the prohibition of discrimination, infringement of the right to carry on a business, failure to comply with the principle of legal certainty, non-observance of the principle of the protection of legitimate expectation, and also misuse of powers — has cast any doubt on the validity and legality of the rules applicable to the levy on isoglucose. This suffices in this connexion. In particular it is accordingly unnecessary to consider the problem also raised by the applicants, namely whether all the rules of law which have been mentioned — especially the objectives of Article 39 and the principle of proportionality — are to be regarded as superior rules of law within the meaning of the decided cases to which reference has been made. All things considered the only possible course to take is in my view to dismiss the applications in their entirety as unfounded. |
III — |
To sum up I recommend therefore that the applications lodged by the undertakings Amylum, Tunnel Refineries and Koninklijke Scholten relating to the liability of the authorities be dismissed and the applicants be ordered to pay the costs under Article 69 of the Rules of Procedure. |
( 1 ) Translated from the German.