I —

First the objections to admissibility should be considered and, since it would also make consideration of the main claim unnecessary, the objection that the action is out of time.

1.

In the first place objection was made to the fact that the claim was made against the European Communities, that is also against the European Atomic Energy Community and the European Coal and Steel Community.

As we have heard, the applicant did not proceed in this manner because it wished to make complaints also against those other Communities. The action is based on Article 215 of the EEC Treaty and obviously only concerns events from the EEC sphere. This designation of the parties was chosen because the Communities have a common budget under Article 20 of the Merger Treaty and accordingly compensation has to be paid out of it.

This fact does not however justify the description of the defendants chosen. It is clear from Article 32 of the Merger Treaty that the Treaty provided only for a merger of the institutions and not of the Communities themselves. The European Communities are not therefore a single legal person but as heretofore three Communities and therefore three separate legal persons. Further, Article 215 of the EEC Treaty speaks expressly of the liability of the Community in the singular. Where compensation for damage is sought against the European Economic Community it is accordingly only that Community which can be sued.

Since however, as I have shown, it is quite clear that the applicant does not intend to proceed against the other Communities I do not consider it necessary to declare the action inadmissible on this account. In my opinion it is sufficient for the judgment to use a correct designation, that is, to refer only to an action against the European Economic Community represented by the Council and the Commisson.

2.

Furthermore the Commission has doubts whether the application for a declaration as formulated in the statement of claim is admissible. It refers to the fact that the problem concerns two actual export transactions which have been completed long ago. Accordingly calculation of the damage must be possible and since an action for damages is involved there is no room for an action for a declaration.

The applicant has explained that the claim in dispute relates mainly to the costs arising from the national court proceedings. Since the proceedings have not yet been concluded and it may yet be necessary to hear evidence, it has not yet been possible to specify all the court and legal costs and the expenditure connected therewith. Moreover it is not inconceivable (and this is important in relation to the claims for interest) that the rates of interest may change.

I have the impression that these explanations are sufficient. It is clear since the judgment in Joined Cases 56 to 60/74, Kurt Kampffmeyer Mühlenvereinigung KG and Others v Commission and Council [1976] ECR 711 that Article 215 of the EEC Treaty basically allows actions for declarations. At least this applies to cases in which damage is imminent and foreseeable with sufficient certainty and the cause of the damage already exists. This is the position in the applicant's view here. Since, moreover, as the applicant has assured us, no damage is claimed other than that connected with the said two export transactions, the nature of the alleged damage is sufficiently clear and there is in fact no cause to describe the application for a declaration as inadmissible.

3.

Finally with regard to the claim by the two defendant institutions that the action is barred by lapse of time, Article 43 of the Statute of the Court of Justice of the EEC provides that 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. Moreover, Article 43 states, and this is important having regard to the telex message of 16 January 1976 sent by the applicant to the Commission, that the period of limitation shall be interrupted if an application is made by the aggrieved party to the relevant institution of the Community. In this event the proceedings must be instituted within the period of two months provided for in Article 173; the provisions of the second paragraph of Article 175 apply where appropriate.

The Commission alleges in this connexion that because Article 43 takes as basis the event giving rise to the damage and not the occurrence of the damage, only acts which occurred after 16 January 1971 come into question as far as it is concerned; claims arising from events occurring before that period, on which the applicant's case is primarily based, were already barred by lapse of time in 1975. The Council stresses its view that the said telex message could only affect the institution addressed and not the Council. All that is relevant for the Council therefore is the date when the action was brought. If this is borne in mind then it is seen that all the events relevant to the applicant's claims had already taken place more than five years before 17 May 1976, the date when the action was brought. According to the applicant's own statements it is to be accepted that the refunds should have been paid at the latest on 30 April 1971. Shortly thereafter, that is, in any event before 17 May, damage may already be spoken of because the payments were not made.

With regard to this discussion of the beginning of the limitation period let me first refer to the remarks of Much in his report on ‘die Haftung der Europäischen Gemeinschaften für das rechtswidrige Verhalten ihrer Organe’ (liability of the European Communities for illegal behaviour by their institutions) (Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, Volume 44, p. 723 et seq.) with regard to the interpretation of Article 43 of the Statute of the Court of Justice of the EEC. His view is that the limitation clause contained therein is very imprecise not least of all because of the different wording in the statutes for the various treaties. In particular, it is not clear whether the period of limitation begins to run from the time of the event causing the damage, the time when the claim to compensation arose or the time when the aggrieved party had knowledge of the damage and of the party liable for compensation so that an action for wrongful act or omission might be possible and could be expected. This in my view is correct.

I see also no compelling reasons for the narrow interpretation recommended by the defendant institutions; I do however see arguments for a more generous interpretation.

Thus it is significant that there is no rule in the legal system of any Member State such as the defendants consider proper in the context of the Community. The beginning of the period of limitation including that in relation to claims for a wrongful act or omission is in the majority of Member States the time when the damage occurred. This is the case in Italy, Belgium, the Netherlands, England and Ireland, at least in a number of circumstances. Other Member States go even further. They take as basis the time when the fact of damage should have been known (Denmark and Scotland) or was known (France) or even (as in German law) when the damage and the identity of the person liable for compensation were known so that an action may be regarded as reasonable.

Further the case-law shows that the Court itself is not in favour of a narrow interpretation. It is true that this appears from the judgment of 14 December 1962 in Joined Cases 46 and 47/59, Meroni and Co., Erba, and Meroni and Co., Milan v High Authority of the ECSC [1962] ECR 411, which concerned the ECSC Treaty; since however the French version of the relevant part of Article 40 of the Statute of the Court of Justice of the ECSC agrees with that of Article 43 of the EEC Statute this case-law may be regarded as significant also in relation to the EEC Treaty. It does in fact appear from the said judgment that it is not the happening of the event causing the damage which is important; on the contrary, in that case the point of reference was the final closing of the account in respect of the equalization levy on ferrous scrap because only then did it become clear whether there was any definitive damage as a result of the making of illegal equalization payments, which was the ground of liability, and the quantum of damage.

If however this is taken as the criterion in the present case, namely the decisive nature of the happening of the damage, and if in addition the question is left open whether the opinion of Much and Ipsen (Europäisches Gemeinschaftsrecht, paragraph 27, Z. 14) according to which the basis is the claimant's knowledge and the arising of the possibility of bringing an action, the following observations may be made on the particular issues:

In view of these considerations it may accordingly be observed that the objection that the action is barred by lapse of time is not valid. It is thus also clear that it is not necessary to discuss the question raised by the Council at some length whether the telex message sent to the Commission could also interrupt the running of the limitation period in respect of the Council. There is accordingly nothing to stop further consideration of the claims made.

1.

In considering this statement we must first inquire whether it can be regarded as proven that if the transactions had been arranged differently, namely subject to a condition that there should be marketing in Morocco, the applicant would have been entitled to receive the refund applicable for Morocco.

In my view there can be no question of this.

It is important to note, as appears from the report of the customs control department of the Oberfinanzbezirk Hamburg of May 1971 produced by the applicant, that at a meeting of the pool on 3 November 1970 it had been noted that the 9000 tonnes of butter intended for North Africa were causing concern. In addition the applicant has itself stated that of the 18000 tonnes of EEC butter exported to Morocco between 1 February and 4 March 1971 it had only been possible for 88 tonnes to remain in Morocco because the annual requirements amounting to 11000 tonnes had already been met. In these circumstances it cannot be expected that the Corman undertaking which bought the butter from the applicant would have agreed to a condition that the butter should be marketed in Morocco. Nor is there any evidence that the applicant would have found other parties willing to accept such conditions, namely potential purchasers as was stated in the oral procedure, who, thanks to generous terms of payment, would have stored the goods for the purpose of subsequent sale in view of rising world market prices.

This means that there are in fact considerable doubts as to the validity of the claim for the payment of the relevant amounts of refund. Disregarding the claims to lawyers' fees and court costs, at most different amounts of damage would have to be considered such as would perhaps have arisen had the applicant applied for advance fixing for reduced quantities in respect of Morocco or if it had even foregone the Morocco transaction altogether subject to forfeiture of the deposit.

2.

The decisive point on which the claims are founded is, as we have seen, the allegation that the applicant was convinced, as a result of statements of the defendant institutions of the Community, that proof of arrival was sufficient for entitlement to a refund, that is, that it acted bona fide.

There are considerable doubts at the outset on this subject and this relates to all the claims made. They are based in part on a letter of offer dated 19 November 1970 by the applicant's then manager addressed to the export undertaking Koospool in Prague, which is appended to the aforementioned report of the customs control department as the third annex. It does not seem to me important whether the said manager, who was employed by the applicant until 20 February 1971, was authorized to act on his own and whether the transaction mentioned was carried out. In the present connexion the only question is the appraisal of the situation by the applicant's top management and for this a letter drafted by a manager acting on his own may be significant. The said letter is interesting in that proof was sought of the purchaser that the goods had reached the country of destination and remained there. Moreover bank guarantees were required of the purchaser to the amount of the refund in case repayment of the refunds was demanded of the seller by reason of non-fulfilment of the said conditions. In my opinion it is not possible to see, in view of this fact, that is, the fear that repayment of the refunds might be demanded if the goods did not remain in the country of destination, how the applicant could have acted on the assumption that the mere arrival of the goods in the country of destination sufficed to give entitlement to the refund.

In addition there is what we were told in the proceedings with regard to the practice of the Hauptzollamt Hamburg-Jonas as regards the provision of proof and in particular in relation to the applicant prior to the time when the transactions in question here were entered into. As appears from a communication from the Bundesfinanzministerium which the Commission has reported and which agrees with a report from the permanent representation of the Federal Republic of Germany on the application of Regulation No 1041/67 of October 1970 it must be assumed that the Hauptzollamt Hamburg, although largely satisfied with proof of arrival, has since 1968 required further documents in a number of cases on the export of milk products. There is mention of the proof of import by means of customs documents, accounts and freight documents certified by the customs and evidence of arrival certified by the customs and veterinary certificates. In particular, in regard to transactions conducted by the applicant, certificates by customs offices on import and payment of customs charges or certificates of the Polish State trading organization on customs clearance on importation were produced at the request of the Hauptzollamt in respect of exports of butter to Hungary and Poland in 1969 and 1970 because there was suspicion that the prohibition on refunds in respect of trade between the two zones of Germany was being circumvented. Copies of these documents have been produced for us by the Commission together with their answers of 6 January 1977. This too tends to show that at the end of 1970 the applicant cannot still have been convinced that simple proof of arrival sufficed for entitlement to a refund.

If the said documents are regarded as sufficiently probative, and this seems to be arguable, then the claims made can already be rejected for the aforementioned reasons.

3.

I shall not however leave it there, but consider whether statements of the defendants, as the applicant maintains, were capable of misleading exporters into thinking that they had only to adduce proof of arrival under the refund rules.

Various matters have to be considered:

Before I go into this I should like to recall that the only complaint made against the Council is that it failed to deal with the legal position clearly in Regulation No 876/68 or to require the Commission in accordance with Article 152 of the EEC Treaty to introduce a clear regulation. The claims made against the Council are thus solely based on this.

Further the various claims made by the applicant must be kept separate. It must be borne in mind in particular that with regard to the main claim relating to the payment of the amounts of refund at most matters are relevant which occurred until the time when the goods arrived in Morocco, that is, until the end of February 1971, for until then the applicant may be assumed to have had a power of disposal. Matters in respect of the period after spring 1971 are therefore relevant only in relation to the claims for the payment of lawyers' fees and court and procedural costs.

4.

In conclusion there remain however two observations. One relates to the complaint that the Commission neglected to publish a list of recognized control and surveillance companies within the meaning of Article 8 of Regulation No 1041/67 or to insist on its publication by the responsible German authorities. The other relates to a procedural issue raised by the applicant under Article 91 of the Rules of Procedure.

III —

In view of all the foregoing I propose that the action brought by Milch-, Fett- und Eier-Kontor GmbH against the European Economic Community represented by the Council and the Commission should be rejected as unfounded. The applicant should be ordered to bear the costs of the action with the exception of the costs of the procedural issue which the Commission should bear.