61974J0026

1 . EEC - OWN RESOURCES - MONETARY COMPENSATORY AMOUNTS - AMOUNTS IMPROPERLY COLLECTED - REIMBURSEMENT - AWARD OF INTEREST - NATIONAL AUTHORITIES - JURISDICTION

( DECISION OF THE COUNCIL OF 21 APRIL 1970 , ARTICLE 6 ; REGULATION NO 2/71 OF THE COUNCIL , ARTICLE 1 );

2 . NON-CONTRACTUAL LIABILITY - APPLICATION - CLAIM FOR NOMINAL DAMAGES - SPECIFIC DAMAGE - CAUSAL CONNEXION - PROOF

( EEC TREATY , ARTICLE 215 )

1 . DISPUTES IN CONNEXION WITH THE REIMBURSEMENT OF AMOUNTS COLLECTED FOR THE COMMUNITY ARE A MATTER FOR THE NATIONAL COURTS AND MUST BE SETTLED BY THEM UNDER NATIONAL LAW IN SO FAR AS NO PROVISIONS OF COMMUNITY LAW ARE RELEVANT .

IN THE ABSENCE OF PROVISIONS OF COMMUNITY LAW ON THIS POINT IT IS CURRENTLY FOR THE NATIONAL AUTHORITIES , IN THE CASE OF REIMBURSEMENT OF DUES IMPROPERLY COLLECTED , TO SETTLE ALL ANCILLARY QUESTIONS RELATING TO THAT REIMBURSEMENT , SUCH AS ANY PAYMENT OF INTEREST .

2 . EVEN IN A CLAIM FOR NOMINAL DAMAGES THE APPLICANT MUST PROVE ACTUAL DAMAGE AND A CAUSAL CONNEXION BETWEEN SUCH DAMAGE AND THE MEASURES ADOPTED BY A COMMUNITY INSTITUTION .

IN CASE 26/74

ROQUETTE FRERES , A LIMITED LIABILITY COMPANY GOVERNED BY FRENCH LAW HAVING ITS REGISTERED OFFICE AT LESTREM ( PAS-DE-CALAIS ), REPRESENTED BY MARCEL VEROONE , ADVOCATE AT THE LILLE BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF JACQUES LOESCH , 2 RUE GOETHE ,

APPLICANT ,

V COMMISSION OF THE EUROPEAN COMMUNITIES REPRESENTED SUCCESSIVELY BY ITS LEGAL ADVISER JACQUES H . J . BOURGEOIS , ACTING AS AGENT , AND , AS REGARDS THE RE-OPENING OF THE ORAL PROCEDURE , BY ITS LEGAL ADVISERS MICHEL VAN ACKERE AND RICHARD WAINWRIGHT , ACTING AS CO-AGENTS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , BATIMENT CHEMINS DE FER LUXEMBOURGEOIS , PLACE DE LA GARE ,

DEFENDANT ,

APPLICATION FOR COMPENSATION UNDER THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY IN CONNEXION WITH MONETARY COMPENSATORY AMOUNTS .

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 26 MARCH 1974 THE APPLICANT CLAIMED UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY COMPENSATION FROM THE COMMUNITY FOR THE DAMAGE CAUSED TO IT BY THE COMMUNITY THROUGH THE EFFECT OF REGULATION NO 218/74 OF THE COMMISSION OF 25 JANUARY 1974 ( OJ 1974 L 24 , P . 1 ) FIXING THE MONETARY COMPENSATORY AMOUNTS IN RESPECT OF THE IMPORTATION OF AMYLOID PRODUCTS INTO THE FRENCH REPUBLIC OR , AS APPROPRIATE , IN RESPECT OF THE IMPORTATION OF THE SAME PRODUCTS CONTRARY TO THE CRITERIA ESTABLISHED BY REGULATION NO 974/71 OF THE COUNCIL OF 12 MAY 1971 ON CERTAIN MEASURES OF CONJUNCTURAL POLICY TO BE TAKEN IN AGRICULTURE FOLLOWING THE TEMPORARY WIDENING OF THE MARGINS OF FLUCTUATION FOR THE CURRENCIES OF CERTAIN MEMBER STATES ( OJ , ENGLISH SPECIAL EDITION 1971 ( I ), P . 257 ) AS AMENDED IN PARTICULAR BY REGULATION NO 509/73 OF THE COUNCIL OF 22 FEBRUARY 1973 ( OJ 1973 , L 50 , P . 1 ).

2 IN THE ORIGINAL APPLICATION THE APPLICANT CALIMED THE REIMBURSEMENT OF THE COMPENSATORY AMOUNTS PAID IN RESPECT OF EXPORTS DURING A PERIOD FROM 28 JANUARY TO 21 OCTOBER 1974 , INTEREST ON THESE SUMS , TOGETHER WITH AN AWARD OF INTEREST FOR THE DISRUPTION OF ITS BUSINESS BOTH FROM THE EFFECT ON ITS LIQUID ASSETS AND THE CONSEQUENCES OF THE UNFAIR COMPETITIVE CONDITIONS WHICH IT SUFFERED AS A RESULT OF THE ECONOMIC EFFECTS OF REGULATION NO 218/74 .

3 PARALLEL WITH THIS APPLICATION THE APPLICANT INSTITUTED PROCEEDINGS BEFORE THE TRIBUNAL D ' INSTANCE OF LILLE FOR THE REIMBURSEMENT OF THE COMPENSATORY AMOUNTS IN DISPUTE AND FOR THE PAYMENT OF INTEREST AT THE LEGAL RATE ON THESE SUMS .

4 IN THESE PROCEEDINGS THE TRIBUNAL SUBMITTED TO THE COURT UNDER ARTICLE 177 OF THE TREATY PRELIMINARY QUESTIONS AS TO WHETHER THE APPLICATION OF COMPENSATORY AMOUNTS IN RESPECT OF THE EXPORT OF AMYLOID PRODUCTS PROVIDED FOR BY REGULATION NO 218/74 OF THE COMMISSION WAS IN ACCORDANCE WITH REGULATIONS NOS 974/71 AND 509/73 OF THE COUNCIL .

5 IN THE JUDGMENT GIVEN ON 12 NOVEMBER 1974 IN REPLY TO THOSE QUESTIONS ( SOCIETE ROQUETTE FRERES V FRENCH STATE , CASE 34/74 ( 1974 ) ECR 217 ) THE COURT FOUND THAT FOR THE RELEVANT PERIOD THE FIXING OF THE COMPENSATORY AMOUNTS FOR THE PRODUCTS IN QUESTION BY REGULATION NO 218/74 OF THE COMMISSION WAS NOT IN ACCORDANCE WITH THE PROVISIONS OF THE BASIC REGULATIONS OF THE COUNCIL .

6 FOLLOWING THAT JUDGMENT THE APPLICANT OBTAINED AN ORDER AGAINST THE FRENCH STATE FOR REIMBURSEMENT OF THE COMPENSATORY AMOUNTS IN DISPUTE , BY VIRTUE OF A JUDGMENT OF THE TRIBUNAL D ' INSTANCE OF 22 APRIL 1975 .

7 ON THE OTHER HAND IN THE SAME JUDGMENT THE TRIBUNAL D ' INSTANCE RULED THAT THE APPLICANT WAS NOT ENTITLED TO INTEREST AT THE LEGAL RATE ON THE SUMS REIMBURSED .

8 IN VIEW OF THIS JUDGMENT THE APPLICANT AMENDED ITS CONCLUSIONS AND NOW ONLY CLAIMS FROM THE COMMUNITY :

( A ) THE AWARD OF INTEREST CALCULATED AT AN APPROPRIATE RATE ON THE COMPENSATORY AMOUNTS , AND

( B ) ' NOMINAL DAMAGES ' AS COMPENSATION FOR THE HARM OCCASIONED TO IT BY THE UNFAIR COMPETITIVE CONDITIONS WHICH IT SUFFERED AS A RESULT OF THE MEASURE ADOPTED BY THE COMMISSION .

ON THE QUESTION OF INTEREST

9 IT IS CLEAR FROM THE PROVISIONS ON THE COMMUNITIES ' OWN RESOURCES , THAT IS TO SAY , THE DECISION OF THE COUNCIL OF 21 APRIL 1970 AND REGULATION NO 2/71 OF THE COUNCIL OF 2 JANUARY 1971 IN IMPLEMENTATION THEREOF ( OJ , ENGLISH SPECIAL EDITION 1970 ( I ), P . 224 AND OJ , ENGLISH SPECIAL EDITION 1971 ( I ), P . 3 ) IN CONJUNCTION WITH REGULATION NO 729/70 OF THE COUNCIL OF 21 APRIL 1970 ON THE FINANCING OF THE COMMON AGRICULTURAL POLICY ( OJ , ENGLISH SPECIAL EDITION 1970 ( I ), P . 218 ) THAT THE NATIONAL AUTHORITIES MUST ENSURE ON BEHALF OF THE COMMUNITY AND IN ACCORDANCE WITH THE PROVISIONS OF COMMUNITY LAW THAT A CERTAIN NUMBER OF DUES , INCLUDING THE MONETARY COMPENSATORY AMOUNTS , ARE COLLECTED .

10 UNDER ARTICLE 6 OF THE DECISION OF 21 APRIL 1970 , THE TERMS OF WHICH WERE REPEATED BY ARTICLE 1 OF REGULATION NO 2/71 , THESE COLLECTIONS SHALL BE MADE BY MEMBER STATES IN ACCORDANCE WITH NATIONAL PROVISIONS LAID DOWN BY LAW , REGULATION OR ADMINISTRATIVE ACTION .

11 DISPUTES IN CONNEXION WITH THE REIMBURSEMENT OF AMOUNTS COLLECTED FOR THE COMMUNITY ARE THUS A MATTER FOR THE NATIONAL COURTS AND MUST BE SETTLED BY THEM UNDER NATIONAL LAW IN SO FAR AS NO PROVISIONS OF COMMUNITY LAW ARE RELEVANT .

12 IN THE ABSENCE OF PROVISIONS OF COMMUNITY LAW ON THIS POINT , IT IS CURRENTLY FOR THE NATIONAL AUTHORITIES , IN THE CASE OF REIMBURSEMENT OF DUES IMPROPERLY COLLECTED , TO SETTLE ALL ANCILLARY QUESTIONS RELATING TO SUCH REIMBURSEMENT , SUCH AS ANY PAYMENT OF INTEREST .

13 THE TRIBUNAL D ' INSTANCE THUS HAD SOLE JURISDICTION TO DECIDE WHETHER INTEREST SHOULD BE AWARDED AND IN EXERCISE OF THAT JURISDICTION IT CAME TO A DECISION ON THIS POINT IN ITS JUDGMENT OF 22 APRIL 1965 AGAINST WHICH , MOREOVER , NO APPEAL WAS MADE .

14 IN THOSE CIRCUMSTANCES THE HEAD OF THE CLAIM RELATING TO THE AWARD OF INTEREST ON THE SUMS IMPROPERLY COLLECTED IS INADMISSIBLE .

WITH REGARD TO THE COMPENSATION CLAIMED ON THE GROUND OF ADVERSE AFFECT ON THE CONDITIONS OF COMPETITION

15 IT IS CLEAR FROM THE ADDITIONAL PLEADING LODGED AFTER THE JUDGMENT DELIVERED BY THE TRIBUNAL D ' INSTANCE THAT THE REIMBURSEMENT OF THE COMPENSATORY AMOUNTS IMPROPERLY COLLECTED COMPENSATES TO THE APPLICANT ' S SATISFACTION THE DAMAGE WHICH ITS OWN EXPORTS SUFFERED .

16 ACCORDING TO THE STATEMENTS WHICH THE APPLICANT HAS MADE THE DAMAGE WHICH IT CLAIMS TO HAVE SUFFERED AROSE FROM THE FACT THAT , BY REASON OF THE PAYMENT OF COMPENSATORY AMOUNTS ON THE IMPORTATION INTO FRANCE OF AMYLOID PRODUCTS , ITS FOREIGN COMPETITORS ENJOYED MORE FAVOURABLE MARKETING CONDITIONS THAN THE APPLICANT AND THAT THE CONDITIONS OF COMPETITION WERE DISTORTED TO ITS DISADVANTAGE .

17 IN SUPPORT OF THAT ALLEGATION THE APPLICANT HAS PRODUCED STATISTICS INTENDED TO PROVE THE OVERALL INCREASE DURING THE RELEVANT PERIOD IN IMPORTATIONS OF AMYLOID PRODUCTS INTO THE FRENCH REPUBLIC .

18 SINCE THE APPLICANT ITSELF ADMITS THAT IT IS DIFFICULT TO DETERMINE THE PRECISE EFFECT OF THIS DEVELOPMENT ON ITS COMMERICAL INTERESTS IT HAS MERELY REQUESTED NOMINAL DAMAGES BY WAY OF COMPENSATION FOR THE DAMAGES WHICH IT CLAIMS THEREBY TO HAVE SUFFERED .

19 THE COMMISSION FOR ITS PART DISPUTES THE EVIDENTIAL VALUE OF THOSE FIGURES , POINTING OUT IN PARTICULAR THAT DURING THE SAME PERIOD A NOTABLE INCREASE IN FRENCH EXPORTS TO THE OTHER MEMBER STATES HAD ALSO OCCURRED AND INDEED , IN THE CASE OF CERTAIN OF THE RELEVANT PRODUCTS , TO A MUCH HIGHER DEGREE THAN THE IMPORTS .

20 THIS , ACCORDING TO THE COMMISSION , IS SUFFICIENT TO PROVE THAT THE CONJUNCTURAL TREND INDICATED BY THE APPLICANT DID NOT ORIGINATE IN THE ESTABLISHMENT OF THE DISPUTED COMPENSATORY AMOUNTS .

21 UNDER THE SECOND PARAGRAPH OF ARTICLE 215 THE COMMUNITY SHALL , IN ACCORDANCE WITH THE GENERAL PRINCIPLES COMMON TO THE LAWS OF THE MEMBER STATES , MAKE GOOD ' ANY DAMAGE CAUSED BY ITS INSTITUTIONS ' .

22 EVEN SUPPOSING THAT THE FACT THAT REGULATION NO 218/74 OF THE COMMISSION IS NOT IN ACCORDANCE WITH THE BASIC REGULATIONS OF THE COUNCIL , AS WAS FOUND BY THE COURT IN ITS JUDGMENT OF 12 NOVEMBER 1974 , WERE CAPABLE OF RENDERING THE COMMUNITY LIABLE , IT WOULD STILL BE THE CASE THAT THE APPLICANT HAS FAILED TO PROVE THE DAMAGE WHICH IT CLAIMS TO HAVE SUFFERED .

23 ALTHOUGH THE COURT EXPRESSLY REQUESTED THE APPLICANT TO SUPPLEMENT THE PARTICULARS OF ITS CLAIM IN THIS RESPECT , THE LATTER MERELY PRODUCED OVERALL FIGURES THE INTERPRETATION OF WHICH IS DOUBTFUL AND IT FAILED TO PROVE ANY ACTUAL DAMAGE WHICH IT HAS SPECIFICALLY SUFFERED IN THE COURSE OF ITS BUSINESS OR A CAUSAL CONNEXION BETWEEN THIS DAMAGE AND THE MEASURES ADOPTED BY THE COMMISSION .

24 THE FACT THAT THE APPLICANT HAS REDUCED ITS CLAIM TO NOMINAL DAMAGES DOES NOT RELIEVE IT OF PROVIDING CONCLUSIVE PROOF OF THE DAMAGE SUFFERED .

25 CONSEQUENTLY THIS HEAD OF THE CLAIM MUST BE DISMISSED .

COSTS

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

27 THE APPLICANT HAS FAILED IN ITS SUBMISSIONS .

28 IT MUST THEREFORE BE ORDERED TO BEAR THE COSTS .

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE APPLICANT TO BEAR THE COSTS .