61976J0054

EEC - NON-CONTRACTUAL LIABILITY - LEGISLATIVE MEASURE CONSTITUTING A MEASURE TAKEN IN THE SPHERE OF ECONOMIC POLICY

( EEC TREATY , SECOND PARAGRAPH OF ARTICLE 215 )

A MEASURE OF A LEGISLATIVE NATURE CONSTITUTING A MEASURE TAKEN IN THE SPHERE OF ECONOMIC POLICY CANNOT INCUR LIABILITY ON THE PART OF THE COMMUNITY UNDER THE PROVISIONS OF THE SECOND PARAGRAPH OF ARTICLE 215 UNLESS A FLAGRANT VIOLATION OF A SUPERIOR RULE OF LAW FOR THE PROTECTION OF THE INDIVIDUAL HAS OCCURRED .

IN JOINED CASES :

( 1 ) 54/76 : COMPAGNIE INDUSTRIELLE ET AGRICOLE DU COMTE DE LOHEAC , HAVING ITS REGISTERED OFFICE AT SAINTE-ROSE ( GUADELOUPE ), REPRESENTED BY ITS MANAGING DIRECTOR , C . SIMMONNET ,

( 2 ) 55/76 : COMPAGNIE SUCRIERE ET RHUMIERE DE LA MARTINIQUE , HAVING ITS REGISTERED OFFICE AT GALION-TRINITE ( MARTINIQUE ), REPRESENTED BY ITS GENERAL MANAGER , MR DE LAGUARIGUR ,

( 3 ) 56/76 : SOCIETE INDUSTRIELLE DE SUCRERIE , HAVING ITS REGISTERED OFFICE AT PARIS 8E , REPRESENTED BY ITS GENERAL MANAGER , MR DE LA ROCHEFOUCAULD ,

( 4 ) 57/76 : DISTILLERIE SUCRERIE GROSSE-MONTAGNE , HAVING ITS REGISTERED OFFICE AT LAMENTIN ( GUADELOUPE ), REPRESENTED BY ITS MANAGER , C . SIMMONNET ,

( 5 ) 58/76 : SOCIETE SUCRIERE DE LA GRAND TERRE , HAVING ITS REGISTERED OFFICE AT GARDEL-LE-MOULE ( GUADELOUPE ), REPRESENTED BY ITS GENERAL MANAGER , A . HUYGUES-DESPOINTES ,

( 6 ) 59/76 : SOCIETE DES USINES DE BEAUPORT , HAVING ITS REGISTERED OFFICE AT BORDEAUX , REPRESENTED BY ITS CHAIRMAN AND GENERAL MANAGER , MR ARDANT ,

( 7 ) 60/76 : SOCIETE D ' EXPLOITATION SUCRIERE DE MARIE-GALANTE , HAVING ITS REGISTERED OFFICE AT POINTE-A-PITRE ( GUADELOUPE ), REPRESENTED BY ITS CHAIRMAN AND GENERAL MANAGER , MR HUYGUES-DESPOINTES ,

ALL ASSISTED BY DOMINIQUE VOILLEMOT AND XAVIER DE ROUX , ADVOCATES AT THE COUR D ' APPEL , PARIS , 26 , COURS ALBERT 1ER - 75008 PARIS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES REUTER , 1 AVENUE DE L ' ARSENAL ,

APPLICANTS ,

V COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY DANIEL VIGNES , DIRECTOR IN THE LEGAL DEPARTMENT AND FELIX VAN CRAEYENEST , MEMBER OF THAT DEPARTMENT , ACTING AS AGENTS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF J . N . VAN DEN HOUTEN , DIRECTOR OF THE LEGAL DEPARTMENT OF THE EUROPEAN INVESTMENT BANK , 2 , PLACE DE METZ ,

AND

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

DEFENDANTS ,

APPLICATION FOR DAMAGES UNDER THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY , IN RESPECT OF DAMAGE ALLEGEDLY SUFFERED FOR THE SUGAR MARKETING YEARS FROM 1971 TO 1975 BY REASON OF THE DISCREPANCY BETWEEN THE HARVESTING PERIOD IN GUADELOUPE AND MARTINIQUE AND THE FIXING OF THE INTERVENTION PRICE FOR SUGAR BY THE COMMUNITY AUTHORITIES ,

1 THE APPLICATIONS ARE FOR DAMAGES IN RESPECT OF LOSS WHICH THE APPLICANTS , CANE SUGAR PRODUCERS IN THE FRENCH DEPARTMENTS OF MARTINIQUE AND GUADELOUPE , CONSIDER THAT THEY HAVE SUFFERED IN RESPECT OF THE SUGAR MARKETING YEARS FROM 1971 TO 1975 BY REASON OF THE FACT THAT THE COMMUNITY INSTITUTIONS FAILED TO TAKE INTO CONSIDERATION , FOR THE PURPOSE OF FIXING THE INTERVENTION PRICES FOR SUGAR , THE DISCREPANCY BETWEEN THE HARVESTING AND SELLING PERIODS FOR THIS PRODUCT IN THE EUROPEAN TERRITORY ( 1 JULY TO 30 DECEMBER ) AND THE SAME PERIODS IN THE DEPARTMENTS OF GUADELOUPE AND MARTINIQUE ( 1 JANUARY TO 30 JUNE ).

ADMISSIBILITY

2/4 IN ITS REJOINDER , THE COUNCIL CONTENDS GENERALLY THAT THE REQUESTS OF THE APPLICANTS ARE INADMISSIBLE . FIRST , THAT CONCLUSION IS NOT ACCOMPANIED BY ANY REASONING OR ARGUMENTS , AND SECONDLY , HAVING REGARD TO ARTICLES 40 AND 42 OF THE RULES OF PROCEDURE , IT WAS LODGED OUT OF TIME . THEREFORE , THAT CONCLUSION MUST BE DISMISSED .

SUBSTANCE OF THE CASE

5 THE APPLICANTS PUT FORWARD THREE SUBMISSIONS IN SUPPORT OF THEIR CLAIM :

1 . THEY CONSIDER THAT THE REGULATIONS PREVIOUS TO COUNCIL REGULATION NO 3330/74 OF 19 DECEMBER 1974 ( OJ L 359 , P . L ) ON THE COMMON ORGANIZATION OF THE MARKET IN SUGAR WERE MANIFESTLY UNLAWFUL BECAUSE THEY INFRINGED ARTICLES 39 AND 40 ( 3 ) OF THE TREATY AND THE PRINCIPLE OF THE PROTECTION OF THE LEGITIMATE EXPECTATIONS OF INTERESTED PARTIES IN THE PROPER IMPLEMENTATION OF THOSE REGULATIONS .

2 . NEXT , THEY TAKE THE VIEW THAT THE REGULATIONS IN QUESTION CONSTITUTED A MANIFESTLY WRONGFUL ACT OR OMISSION GIVING RISE TO LIABILITY ON THE PART OF THE COMMUNITY INSTITUTIONS IN NOT HAVING REGARD FOR THEIR INTERESTS ' IN THAT THEY FAILED TO TAKE INTO CONSIDERATION THE GEOGRAPHICAL CHARACTERISTIC OF THE DEPARTMENTS OF GUADELOUPE AND MARTINIQUE ' .

3 . FINALLY , THEY MAINTAIN THAT EVEN ' IF IT IS IMPOSSIBLE TO FIND THAT THE COMMUNITY INSTITUTIONS ARE GUILTY OF ANY WRONGFUL ACT OR OMISSION , THE APPLICANTS HAVE SUFFERED DIRECT , SPECIAL AND ABNORMAL DAMAGE ' WHICH MUST BE MADE GOOD .

6 THE PURPOSE OF THESE THREE SUBMISSIONS IS THE SAME IN THAT THEY AIM TO IMPOSE NON-CONTRACTUAL LIABILITY ON THE COMMUNITY IN RESPECT OF THE DAMAGE WHICH THE IMPLEMENTATION OF REGULATION NO 1009/67/EEC OF THE COUNCIL OF 18 DECEMBER 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN SUGAR ( OJ , ENGLISH SPECIAL EDITION 1967 , P . 304 ) IS ALLEGED TO HAVE CAUSED THE APPLICANTS .

7 THEREFORE THEY CAN BE EXAMINED AT THE SAME TIME .

8 SINCE THE DISPUTED MEASURE IS OF A LEGISLATIVE NATURE AND CONSTITUTES A MEASURE TAKEN IN THE SPHERE OF ECONOMIC POLICY , THE COMMUNITY CANNOT BE LIABLE FOR ANY DAMAGE SUFFERED BY PRODUCERS AS A CONSEQUENCE OF THAT MEASURE UNDER THE PROVISIONS OF THE SECOND PARAGRAPH OF ARTICLE 215 , UNLESS A FLAGRANT VIOLATION OF A SUPERIOR RULE OF LAW FOR THE PROTECTION OF THE INDIVIDUAL HAS OCCURRED .

9 THEREFORE IT IS NECESSARY TO ENQUIRE WHETHER , IN THE PRESENT CASE , SUCH A VIOLATION HAS BEEN COMMITTED .

10 THE OBJECTIVE OF THE RULES ENACTED FOR THE COMMON ORGANIZATION OF THE MARKET IN BEET AND CANE SUGAR , TAKING INTO ACCOUNT THE SITUATION OF THE WORLD MARKET IN THAT PRODUCT AND THE SITUATION FORESEEABLE IN THE MEDIUM TERM , WAS TO STRIKE A BALANCE BETWEEN THE GENERAL INTEREST OF THE PROPER MANAGEMENT OF THE MARKET SO AS TO AVOID FLUCTUATIONS IN PRICES OVER THE SUGAR ECONOMY AS A WHOLE , AND THE MAINTENANCE OF THE GUARANTEES NECESSARY TO ENSURE THE PRODUCERS OF SUGAR BEET AND SUGAR CANE OF THEIR EMPLOYMENT AND OF A FAIR STANDARD OF LIVING .

11 THUS , IN THE LIGHT OF THE COMPLEX PROBLEM OF THE WORLD SUGAR MARKET , THE COUNCIL , ACTING ON A PROPOSAL FROM THE COMMISSION , BASED THE ORGANIZATION OF THE MARKET UPON THE PRINCIPLES OF THE VALIDITY FOR PERIODS OF ONE YEAR AND OF THE UNITY OF THE MARKETING YEAR , WHICH ARE MOREOVER , COMMON TO ALL THE AGRICULTURAL POLICIES .

12 IT TOOK THE VIEW THAT IT WAS FAIR , IN A PERIOD OF RELATIVE CURRENCY STABILITY , TO DETERMINE THE INTERVENTION PRICE FOR SUGAR FROM THE DEPARTMENTS OF MARTINIQUE AND GUADELOUPE , 92 % OF WHICH WAS OFFERED FOR SALE ON THE EUROPEAN MARKET , BROADLY BY THE PRICES PREVAILING ON THAT MARKET AND TO ALLOW THEIR PRODUCTION A PRICE DERIVED FROM THE MOST ADVANTAGEOUS PRICE WITHIN THE COMMUNITY , NAMELY THE PRICE FIXED FOR ITALY , AN AREA HAVING A DEFICIT IN SUGAR .

13 BEARING IN MIND THE CHARACTERISTICS OF THIS MARKET , THE COUNCIL ESTABLISHED CLOSE COOPERATION BETWEEN THE MEMBER STATES AND THE COMMISSION WITHIN A MANAGEMENT COMMITTEE FOR THE PURPOSE OF ENABLING THE ADOPTION OF THE APPROPRIATE MEASURES SHOULD CHANGES OCCUR AND SHOULD THE NEED ARISE .

14 IN THE LIGHT OF THE NEW SITUATION AND OF INFORMATION OBTAINED CONCERNING NEGOTIATIONS RELATING TO SUGAR FROM THE AFRICAN , CARIBBEAN AND PACIFIC STATES , AND SINCE A PERIOD OF SURPLUS PRODUCTION HAD BEEN FOLLOWED BY A WORLD SHORTAGE OF SUGAR AND AN APPRECIABLE RISE IN PRICES , THE COUNCIL DECIDED IN 1974 THAT : ' THE DERIVED PRICES FIXED FOR ANY GIVEN MARKETING YEAR FOR THE FRENCH DEPARTMENTS OF MARTINIQUE AND GUADELOUPE SHALL APPLY TO THEIR SUGAR PRODUCTION DURING THE CALENDAR YEAR IN WHICH THAT MARKETING YEAR BEGINS ' .

15 IT FOLLOWS FROM ALL THESE FACTORS THAT BY OPTING IN 1967 FOR THE VALIDITY FOR PERIODS OF ONE YEAR AND THE UNITY OF THE MARKETING YEAR , AND THEN IN 1974 FOR ANOTHER SYSTEM FOR THE MARKET , THE COUNCIL MADE A CHOICE OF ECONOMIC POLICY COMING WITHIN ITS DISCRETIONARY POWERS , IN ACCORDANCE WITH THE OBJECTIVES OF THE COMMON AGRICULTURAL POLICY AS DEFINED BY THE TREATY AND IN PARTICULAR BY ARTICLE 39 THEREOF .

16 IT APPEARS FROM ALL THESE CONSIDERATIONS THAT IT IS INAPPROPRIATE FOR THE APPLICANTS TO PLEAD AN INFRINGEMENT OF ARTICLE 40 ( 3 ), ALL THE MORE SO AS THEY HAVE NEVER OFFERED THEIR SUGAR FOR INTERVENTION AND HAVE ALWAYS CHOSEN COMMERCIAL OUTLETS FOR THEIR PRODUCTION ON THE OPEN MARKET OUTSIDE THE COMMUNITY ARRANGEMENTS AND HAVE DEALT AT A PRICE FIXED BY CONTRACT , A SYSTEM WHICH EXCLUDES ALL DISCRIMINATION BETWEEN PRODUCERS .

17 NOR HAS IT BEEN PROVED , MOREOVER , THAT THE LEGITIMATE EXPECTATIONS OF THOSE CONCERNED WERE DISAPPOINTED , SINCE NO COMMUNITY MEASURE FORECAST THE INTRODUCTION OF ARRANGEMENTS OTHER THAN THOSE FIXED IN 1967 .

18 CONSEQUENTLY , THE APPLICANTS ' CLAIM FOR THE RETROACTIVE APPLICATION OF A NEW SYSTEM TO TRANSACTIONS FREELY CONCLUDED UNDER OLD RULES , WHICH MOREOVER PROTECTED THEM FROM THE RISKS OF THE WORLD MARKET , CANNOT BE TAKEN INTO CONSIDERATION .

19 FINALLY THE COMPLAINT OF HAVING SUFFERED DIRECT , SPECIAL AND ABNORMAL DAMAGE CANNOT BE SUBSTANTIATED , PARTICULARLY SINCE THE DAMAGE IS ALLEGED TO RESULT NOT FROM A LOSS BUT FROM A FAILURE TO MAKE A PROFIT , THE EXISTENCE OF WHICH IS DIFFICULT TO PROVE WITHIN THE FRAMEWORK OF COMMERCIAL CONTRACTS OUTSIDE THE SPHERE OF THE COMMUNITY ARRANGEMENTS .

20 IT FOLLOWS FROM THESE CONSIDERATIONS TAKEN AS A WHOLE , THAT IT IS IMPOSSIBLE TO HOLD THE COMMUNITY LIABLE FOR A FLAGRANT VIOLATION OF A SUPERIOR RULE OF LAW FOR THE PROTECTION OF THE INDIVIDUAL .

21 ACCORDINGLY , THE SUBMISSIONS PUT FORWARD ARE UNFOUNDED .

COSTS

22/23 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . SINCE THE APPLICANTS HAVE FAILED IN ALL THEIR SUBMISSIONS , THEY MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATIONS .

2 . ORDERS THE APPLICANTS TO PAY THE COSTS .