P.259
ON THE BASIS OF ARTICLE 215 OF THE TREATY THE APPLICANTS REQUEST THE COURT TO ORDER THE COMMUNITY TO MAKE GOOD THE DAMAGE WHICH HAS BEEN CAUSED TO THEM BY THE COMMISSION AS A RESULT OF ITS DECISION OF 3 OCTOBER 1963 ' AUTHORIZING THE FEDERAL REPUBLIC OF GERMANY TO RETAIN THE PROTECTIVE MEASURES RELATING TO THE IMPORT OF MAIZE, MILLET AND SORGHUM '.
BY THAT DECISION, WHICH WAS ANNULLED BY A JUDGMENT OF THE COURT OF 1 JULY 1965 IN JOINED CASES 106 AND 107/63, THE COMMISSION, IN APPLICATION OF THE THIRD SUBPARAGRAPH OF ARTICLE 22(2 ) OF REGULATION NO 19 OF THE COUNCIL, RETAINED IN FORCE UP TO AND INCLUDING 4 OCTOBER 1963 THE PROTECTIVE MEASURE TAKEN BY THE FEDERAL REPUBLIC OF GERMANY CONSISTING OF THE SUSPENSION AS FROM 1 OCTOBER OF THE ISSUE OF IMPORT LICENCES FOR MAIZE, SORGHUM, MILLET AND OTHER PRODUCTS MENTIONED IN ARTICLE 1(D ) OF THE SAID REGULATION AT A RATE OF LEVY EQUAL TO ZERO .
AS THE APPLICANTS ALL REQUESTED IMPORT LICENCES ON 1 OCTOBER FOR THE FOLLOWING JANUARY, AND EIGHT OF THEM PURCHASED QUANTITIES OF MAIZE IN ANTICIPATION OF THE GRANT OF THE SAID LICENCES, IT IS CLAIMED THAT THE COMMISSION SHOULD BE REQUIRED TO MAKE GOOD THE INJURY CAUSED TO THEM WHICH CONSISTED ON THE ONE HAND OF THE PENALTIES PAID FOR REPUDIATION OF THE CONTRACTS AND THE LOSS RESULTING FROM IMPORTATION ON UNFAVOURABLE CONDITIONS OF QUANTITIES ACTUALLY DELIVERED AND, ON THE OTHER HAND, IN THE LOSS OF PROFIT RESULTING FROM THE IMPOSSIBILITY OF IMPORTING THE CEREALS AT A ZERO LEVY .
ADMISSIBILITY
WITHOUT FORMALLY DISPUTING THE ADMISSIBILITY OF THE APPLICATION, THE DEFENDANT RAISES THE QUESTION WHETHER THE THIRD SENTENCE OF ARTICLE 43 OF THE STATUTE OF THE COURT OF JUSTICE OF THE EEC HAS THE EFFECT OF BARRING APPLICATIONS 5, 7 AND 14 TO 21/66, WHICH WERE MADE MORE THAN TWO MONTHS AFTER A PREVIOUS REQUEST ADDRESSED TO THE COMMISSION, AS BEING OUT OF TIME .
P.260
UNDER THE TERMS OF THIS ARTICLE, 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 COMPLAINED OF . THIS 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, ON CONDITION THAT IN THE LATTER EVENT THE PROCEEDINGS ARE INSTITUTED WITHIN THE PERIOD OF TWO MONTHS PROVIDED FOR IN ARTICLE 173 OR OF FOUR MONTHS PROVIDED FOR IN ARTICLE 175 .
THE DEFENDANT ITSELF ADMITS, HOWEVER, THAT THE REFERENCE TO ARTICLES 173 AND 175 CAN ONLY APPLY TO THE POSSIBILITY OF INTERRUPTION OF THE PERIOD OF LIMITATION OF FIVE YEARS LAID DOWN IN THE FIRST SENTENCE OF THE SAID ARTICLE 43 . IT FOLLOWS FROM THE ACTUAL WORDING OF THE SECOND AND THIRD SENTENCES OF THAT PROVISION THAT IT IS NOT INTENDED TO SHORTEN THE PERIOD OF LIMITATION OF FIVE YEARS, BUT THAT IT IS INTENDED TO PROTECT THOSE CONCERNED BY PREVENTING CERTAIN PERIODS FROM BEING TAKEN ACCOUNT IN THE CALCULATION OF THE SAID PERIOD . CONSEQUENTLY THE AIM OF THE THIRD SENTENCE OF ARTICLE 43 IS MERELY TO POSTPONE THE EXPIRATION OF THE PERIOD OF FIVE YEARS WHEN PROCEEDINGS INSTITUTED OR A PRIOR APPLICATION MADE WITHIN THIS PERIOD START TIME TO RUN IN RESPECT OF THE PERIODS PROVIDED FOR IN ARTICLES 173 OR 175 . AS THE EVENT WHICH GAVE RISE TO THE PRESENT APPLICATIONS OCCURRED ON 1 OCTOBER 1963, THAT IS TO SAY, LESS THAN FIVE YEARS FROM THE LODGING OF THE SAID APPLICATIONS, THEY ARE THEREFORE ADMISSIBLE .
THE SUBSTANCE OF THE CASE
THE APPLICANTS COMPLAIN THAT THE COMMISSION INCORRECTLY APPLIED ARTICLE 22 OF REGULATION NO 19 AND THAT A CORRECT APPLICATION WOULD HAVE REQUIRED THE ABOLITION AND NOT THE RETENTION OF THE GERMAN PROTECTIVE MEASURE WHICH, ACCORDING TO THEM, WOULD HAVE LED TO THE NON-EXECUTION, IF NOT THE COMPLETE DISAPPEARANCE, OF THE SAID MEASURE . THE DEFENDANT REPLIES THAT ITS CONDUCT WAS NOT SUCH AS TO RENDER IT LIABLE BECAUSE, ON THE ONE HAND, IT DID NOT AMOUNT TO A WRONGFUL ACT OR OMISSION AND, ON THE OTHER, THE RULE OF LAW WHICH IT IS SUPPOSED TO HAVE INFRINGED IS NOT INTENDED TO PROTECT INTERESTS SUCH AS THOSE OF THE APPLICANTS .
THE EFFECT AND SCOPE OF THE DECISION OF 3 OCTOBER 1963 WHICH IS THE OBJECT OF THE COMPLAINT SHOULD BE CONSIDERED WITHIN THE FRAMEWORK OF THE COMMON ORGANIZATION OF THE MARKETS IN CEREALS AND PARTICULARLY IN RELATION TO THE APPLICATION WHICH WAS MADE OF THIS SYSTEM BY THE DECISION OF THE COMMISSION OF 27 SEPTEMBER 1963 AGAINST THE CONSEQUENCES OF WHICH THE DECISION OF 3 OCTOBER WAS INTENDED TO PROTECT THE GERMAN MARKET .
P.261
REGULATION NO 19 OF THE COUNCIL ESTABLISHED A SYSTEM OF INTRA-COMMUNITY LEVIES IN THE CEREALS SECTOR CORRESPONDING TO THE DIFFERENCE BETWEEN THE PRICES RULING IN THE EXPORTING MEMBER STATE AND IN THE IMPORTING MEMBER STATE, IN SUCH A WAY AS TO PREVENT, ON THE MARKET OF THE MEMBER STATE WHERE THE PRICES ARE HIGHER, DISTURBANCES WHICH MIGHT RESULT FROM IMPORTS COMING FROM A COUNTRY WHERE THE PRICES ARE LOWER . CONSEQUENTLY THE LEVY IS ESTABLISHED ON THE BASIS OF THE DIFFERENCE BETWEEN, ON THE ONE HAND, THE PRICE OF THE PRODUCT COMING FROM THE EXPORTING MEMBER STATE DELIVERED FREE-AT - FRONTIER IN THE IMPORTING MEMBER STATE, A PRICE SETTLED BY THE COMMISSION IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN ARTICLE 26 OF THE SAID REGULATION ON THE BASIS OF PRICES RULING ON THE MOST REPRESENTATIVE MARKETS OF THE EXPORTING MEMBER STATE, AND, ON THE OTHER HAND, THE THRESHOLD PRICE OF THE IMPORTING MEMBER STATE WHICH IS FIXED ANNUALLY IN ACCORDANCE WITH THE PROCEDURE AND THE CRITERIA LAID DOWN IN ARTICLE 4 OF THE REGULATION . WHEN THE FREE-AT-FRONTIER PRICES FIXED BY THE COMMISSION FOR THE EXPORTING STATE ARE EQUAL TO OR HIGHER THAN THE THRESHOLD PRICE OF THE IMPORTING STATE, THE LEVY IS THEN EQUAL TO ZERO .
IT APPEARS FROM THE RECITALS IN THE PREAMBLE TO ITS DECISION OF 3 OCTOBER 1963 THAT THE COMMISSION, OWING TO A LACK OF KNOWLEDGE CONCERNING THE LEVEL OF PRICES FOR THE NEW HARVEST IN FRANCE, HAD NOT TAKEN INTO ACCOUNT IN ITS DECISION OF 27 SEPTEMBER 1963 THE EFFECT OF THESE PRICES ON THE FORMATION OF PRICES ON THE FRENCH MARKET AND HAD BASED THAT DECISION SOLELY ON THE PRICE OF THE MAIZE, SORPHUM AND MILLET OF THE OLD HARVEST ORIGINATING IN FRANCE, DELIVERED FREE-AT-FRONTIER IN GERMANY, WHICH WERE HIGHER THAN THE THRESHOLD PRICE FIXED BY THE FEDERAL REPUBLIC OF GERMANY . THE SAID DECISION OF 27 SEPTEMBER 1963 DID NOT THUS FIX FREE-AT-FRONTIER PRICES FOR THESE PRODUCTS AND THERE FOLLOWED ON 1 OCTOBER 1963 A ZERO LEVY FOR IMPORTS ORIGINATING IN FRANCE INTO THE FEDERAL REPUBLIC OF GERMANY . AS REGULATION NO 31/63 OF THE COUNCIL ALLOWED, AS FROM 1 OCTOBER, ADVANCE FIXING OF LEVIES FOR MAIZE AT THE RATE IN FORCE ON THE DAY OF LODGING OF THE REQUEST FOR LICENCES FOR IMPORTS TO BE EFFECTED THREE MONTHS LATER, THE APPLICANTS TOOK ADVANTAGE OF THIS OPTION TO BENEFIT FROM THE PRICES OF THE NEW HARVEST WHICH WERE LOWER THAN BOTH THE FREE-AT-FRONTIER PRICES FIXED BY THE DECISION OF 27 SEPTEMBER AND THE GERMAN THRESHOLD PRICE IN FORCE AND, ON 1 OCTOBER 1963, THEY LODGED WITH THE EINFUHR-UND VORRATSSTELLE, THE COMPETENT DEPARTMENT OF THE FEDERAL REPUBLIC OF GERMANY, APPLICATIONS FOR LICENCES WITH THE LEVY FIXED IN ADVANCE IN RESPECT OF RELATIVELY LARGE QUANTITIES OF THE SAID PRODUCTS .
THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY CONSIDERED THAT THE ISSUE OF THESE LICENCES WOULD HAVE LED TO THE IMPORTATION INTO THAT STATE DURING THE MONTH OF JANUARY OF LARGE QUANTITIES OF MAIZE AT PRICES BELOW THE THRESHOLD PRICE AND ON 1 OCTOBER 1963 ADOPTED AND NOTIFIED TO THE COMMISSION THE PROTECTIVE MEASURE CONSISTING IN THE SUSPENSION AS FROM THAT DATE OF THE ISSUE OF IMPORT LICENCES . BY ITS DECISION OF 3 OCTOBER THE COMMISSION KEPT THE SAID PROTECTIVE MEASURE IN FORCE UP TO AND INCLUDING 4 OCTOBER .
P.262
AS IS CLEAR, MOREOVER, FROM THE JUDGMENT OF THE COURT OF 1 JULY 1965, THIS DECISION CONSTITUTED AN IMPROPER APPLICATION OF ARTICLE 22 OF REGULATION NO 19, IN PARTICULAR IN THAT IT LIKENED THE UNDENIABLE DIFFICULTIES CAUSED BY THE DECISION OF 27 SEPTEMBER TO SERIOUS DISTURBANCES WHICH MIGHT ENDANGER THE OBJECTIVES LAID DOWN IN ARTICLE 39 OF THE TREATY . ON 3 OCTOBER 1963 THE COMMISSION APPLIED ARTICLE 22(2 ) OF REGULATION NO 19 IN CIRCUMSTANCES WHICH DID NOT JUSTIFY PROTECTIVE MEASURES IN ORDER TO RESTORE THE SITUATION RESULTING FROM THE FIXING BY IT OF A ZERO LEVY . AS IT WAS AWARE OF THE EXISTENCE OF APPLICATIONS FOR LICENCES, IT CAUSED DAMAGE TO THE INTERESTS OF IMPORTERS WHO HAD ACTED IN RELIANCE ON THE INFORMATION PROVIDED IN ACCORDANCE WITH COMMUNITY RULES . THE COMMISSION'S CONDUCT CONSTITUTED A WRONGFUL ACT OR OMISSION CAPABLE OF GIVING RISE TO LIABILITY ON THE PART OF THE COMMUNITY .
IN TRYING TO JUSTIFY ITSELF BY THE ASSERTION THAT IN VIEW OF THE ECONOMIC DATA AT ITS DISPOSAL ON 3 OCTOBER 1963 A THREAT OF SERIOUS DISTURBANCE WAS NOT TO BE EXCLUDED AND THAT CONSEQUENTLY ITS MISTAKEN EVALUATION OF THE SAID DATA IS EXCUSABLE, THE DEFENDANT MISJUDGES THE NATURE OF THE WRONGFUL ACT OR OMISSION ATTRIBUTED TO IT, WHICH IS NOT TO BE FOUND IN A MISTAKEN EVALUATION OF THE FACTS BUT IN ITS GENERAL CONDUCT WHICH IS SHOWN CLEARLY BY THE IMPROPER USE MADE OF ARTICLE 22, CERTAIN PROVISIONS OF WHICH, OF A CRUCIAL NATURE, WERE IGNORED .
THE COMMISSION'S ASSERTION THAT SUPERVISORY ORGANIZATIONS CANNOT, UNDER A GENERAL PRINCIPLE COMMON TO THE LAWS OF THE MEMBER STATES, BE MADE LIABLE, EXCEPT IN THE CASE OF GROSS MALFEASANCE IS EQUALLY IRRELEVANT . IN FACT, HOWEVER THE POWERS WHICH ARTICLE 22 OF REGULATION NO 19 CONFERS ON THE COMMISSION ARE DESCRIBED, THE LATTER IS REQUIRED IN RESPECT OF EACH PROTECTIVE MEASURE NOTIFIED TO IT TO CONDUCT AS EXHAUSTIVE AN EXAMINATION AS THAT REQUIRED TO BE MADE BY THE GOVERNMENTS OF THE MEMBER STATES AND BEARS INDEPENDENT RESPONSIBILITY FOR THE RETENTION OF A PROTECTIVE MEASURE .
WITH REGARD TO THE ARGUMENT THAT THE RULE OF LAW WHICH IS INFRINGED IS NOT INTENDED TO PROTECT THE INTERESTS OF THE APPLICANTS, THE SAID ARTICLE 22, TOGETHER WITH THE OTHER PROVISIONS OF REGULATION NO 19, IS DIRECTED, ACCORDING TO THE WORDING OF THE FOURTH RECITAL IN THE PREAMBLE TO THE REGULATION, TO ENSURING APPROPRIATE SUPPORT FOR AGRICULTURAL MARKETS DURING THE TRANSITIONAL PERIOD ON THE ONE HAND, AND TO ALLOWING THE PROGRESSIVE ESTABLISHMENT OF A SINGLE MARKET BY MAKING POSSIBLE THE DEVELOPMENT OF THE FREE MOVEMENT OF GOODS ON THE OTHER . FURTHERMORE, THE INTERESTS OF THE PRODUCERS IN THE MEMBER STATES AND OF FREE TRADE BETWEEN THESE STATES ARE EXPRESSLY MENTIONED IN THE PREAMBLE TO THE SAID REGULATION . IT APPEARS IN PARTICULAR FROM ARTICLE 18 THAT THE EXERCISE OF FREEDOM OF TRADE BETWEEN STATES IS SUBJECT ONLY TO THE GENERAL REQUIREMENTS LAID DOWN BY ITS OWN PROVISIONS AND THOSE OF SUBSEQUENT REGULATIONS . ARTICLE 22 CONSTITUTES AN EXCEPTION TO THESE GENERAL RULES AND CONSEQUENTLY AN INFRINGEMENT OF THAT ARTICLE MUST BE REGARDED AS AN INFRINGEMENT OF THOSE RULES AND OF THE INTERESTS WHICH THEY ARE INTENDED TO PROTECT . THE FACT THAT THESE INTERESTS ARE OF A GENERAL NATURE DOES NOT PREVENT THEIR INCLUDING THE INTERESTS OF INDIVIDUAL UNDERTAKINGS SUCH AS THE APPLICANTS WHICH AS CEREAL IMPORTERS ARE PARTIES ENGAGED IN INTRA-COMMUNITY TRADE . ALTHOUGH THE APPLICATION OF THE RULES OF LAW IN QUESTION IS NOT IN GENERAL CAPABLE OF BEING OF DIRECT AND INDIVIDUAL CONCERN TO THE SAID UNDERTAKINGS, THAT DOES NOT PREVENT THE POSSIBILITY THAT THE PROTECTION OF THEIR INTERESTS MAY BE - AS IN THE PRESENT CASE IT IS IN FACT - INTENDED BY THOSE RULES OF LAW . THE DEFENDANT'S ARGUMENT THAT THE RULE OF LAW CONTAINED IN ARTICLE 22 OF REGULATION NO 19 IS NOT DIRECTED TOWARDS THE PROTECTION OF THE INTERESTS OF THE APPLICANTS CANNOT THEREFORE BE ACCEPTED .
P.263
SINCE THE LIABILITY OF THE COMMUNITY HAS BEEN RECOGNIZED IN PRINCIPLE, IT IS NECESSARY TO ESTABLISH THE FACTS OF THE ALLEGED INJURY TO WHICH THAT LIABILITY RELATES .
IN THIS CONNEXION, IT IS NECESSARY TO DISTINGUISH THREE CATEGORIES OF INJURY . IN THE FIRST PLACE, AFTER THE REFUSAL OF THE GRANT OF IMPORT LICENCES ON 3 OCTOBER 1963, CERTAIN APPLICANTS MADE THE IMPORTS IN QUESTION DURING THE MONTH OF JANUARY, PAYING THE GERMAN AUTHORITIES THE LEVY REQUIRED FOR THE QUANTITIES OF MAIZE PURCHASED ON 1 OCTOBER IN ANTICIPATION OF THE ISSUE OF THE LICENCES APPLIED FOR . IN THE SECOND PLACE, CERTAIN APPLICANTS PURCHASED QUANTITIES OF MAIZE ON THE FRENCH MARKET ON 1 OCTOBER, AND REPUDIATED THE CONTRACTS OF PURCHASE AFTER THE SAID REFUSAL TO GRANT LICENCES . IN THE THIRD PLACE, AFTER THE SAID REFUSAL TO GRANT LICENCES, CERTAIN APPLICANTS DID NOT CARRY OUT THE PROPOSED IMPORTATION, SO THAT IT WAS, AS FAR AS THEY WERE CONCERNED, A TRANSACTION THE PERFORMANCE OF WHICH HAD NOT BEGUN, BUT ONE WHICH HAD MERELY GIVEN RISE TO THE LODGING OF APPLICATIONS FOR LICENCES .
AS TO THE FIRST CATEGORY, AS THE APPLICANTS PURCHASED THE MAIZE IN ANTICIPATION OF IMPORTATION SUBJECT TO A ZERO LEVY, THEIR INJURY WAS CAUSED BY THE NECESSITY TO IMPORT SUBJECT TO THE PAYMENT OF A LEVY . HOWEVER, THE REFUSAL TO GRANT THE IMPORT LICENCES SUBJECT TO A ZERO LEVY IN RESPECT OF THIS TRANSACTION HAD NO LEGAL BASIS, AS THE DECISION OF THE COMMISSION OF 3 OCTOBER HAD BEEN ANNULLED BY THE ABOVE-MENTIONED JUDGMENT OF 1 JULY 1965 AND, FURTHERMORE, AS, ACCORDING TO THE DOCUMENTS PROVIDED BY THE APPLICANTS, THE GERMAN PROTECTIVE MEASURE HAD BEEN DECLARED ILLEGAL BY THE GERMAN COURTS FOR REASONS BASED ON GERMAN LAW . CONSEQUENTLY THE CHARGING OF THE LEVY, MADE IN THE NAME OF AND FOR THE BENEFIT OF THE TREASURY OF THE FEDERAL REPUBLIC OF GERMANY, IS THUS SHOWN TO BE CONTRARY TO BOTH COMMUNITY LAW AND GERMAN LAW . IN THESE CIRCUMSTANCES, THE QUESTION ARISES WHETHER THE DAMAGE ALLEGED WOULD BE MADE GOOD BY THE REPAYMENT OF THE SUMS IMPROPERLY PAID BY WAY OF LEVY .
P.264
DURING THE ORAL PROCEDURE, THE EXISTENCE IN THE PRESENT CASE OF THE RIGHT TO SUCH REPAYMENT WAS PUT IN DOUBT BY THE APPLICANTS . THE COURT CANNOT, HOWEVER, RELY ON SUCH A STATEMENT TO ACCEPT THE CONCLUSIVE NATURE OF THE ALLEGED DAMAGE . IT IS PROPER, THEREFORE, TO ASK THE APPLICANTS CONCERNED TO PROVE THAT THEY HAVE EXHAUSTED ALL METHODS OF RECOURSE BOTH ADMINISTRATIVE AND JUDICIAL UNDER THE RELEVANT NATIONAL LAW TO OBTAIN REIMBURSEMENT OF THE SUMS IMPROPERLY PAID BY WAY OF LEVY . ONLY AFTER PRODUCTION OF SUCH EVIDENCE WOULD THERE BE REASON TO CONSIDER WHETHER ANY INJURY EXISTS WHICH THE COMMUNITY SHOULD MAKE GOOD .
THE APPLICANTS IN CASES 5/66, 7/66, 14/66, 15/66, 16/66, 19/66 AND 21/66 MUST BE REGARDED AS BELONGING TO THE FIRST CATEGORY MENTIONED ABOVE, AS THEY PURCHASED ON 1 OCTOBER QUANTITIES OF MAIZE IN ANTICIPATION OF THE ISSUE OF THE LICENCES APPLIED FOR AND IMPORTED THESE QUANTITIES INTO THE FEDERAL REPUBLIC OF GERMANY EITHER DURING THE MONTH OF JANUARY 1964 OR ON PRIOR OR SUBSEQUENT DATES SUFFICIENTLY CLOSE TO THAT MONTH TO JUSTIFY THE SUPPOSITION THAT AN IMPORTATION DURING THAT MONTH WOULD HAVE BEEN POSSIBLE . IT IS THUS APPROPRIATE TO ASK THE ABOVE - MENTIONED APPLICANTS TO PRODUCE THE EVIDENCE INDICATED ABOVE .
IT SHOULD, HOWEVER, BE STATED AT THIS STAGE THAT ONLY THE IMPORTS OF MAIZE PURCHASED IN RELIANCE ON THE ANNOUNCEMENT OF THE ISSUE OF LICENCES SUBJECT TO A ZERO LEVY MAY BE TAKEN INTO ACCOUNT FOR THE FIXING OF THE DAMAGE FOR WHICH THE COMMUNITY MAY BE LIABLE . IT IS APPROPRIATE THEREFORE TO ASK THE ABOVEMENTIONED APPLICANTS TO PRODUCE EVIDENCE THAT THE QUANTITIES OF MAIZE IMPORTED IN OR NEAR THE MONTH OF JANUARY 1964, TO WHICH THEY REFER, WERE PURCHASED BY CONTRACTS MADE ON 1 OCTOBER .
BECAUSE CERTAIN CONTRACTS WERE NOT CONCLUDED UNTIL AFTER 2.15 P.M . ON 1 OCTOBER 1963, THE DEFENDANT ASSERTS THAT IN THOSE CASES ITS LIABILITY IS REDUCED BY THE FACT THAT THE APPLICANTS THEMSELVES CONTRIBUTED TO THE CAUSE OF THE ALLEGED DAMAGE THROUGH LACK OF FORESIGHT . IN FACT, AS FROM THE TIME STATED, THE GERMAN AUTHORITIES INFORMED THOSE CONCERNED BY POSTING UP A NOTICE OF THE WITHDRAWAL OF THE ZERO LEVY, SO THAT A DILIGENT IMPORTER, IT IS ALLEGED, COULD HAVE BEEN AWARE OF THE HAZARDOUS NATURE OF IMPORT TRANSACTIONS FOR THE MONTH OF JANUARY . FURTHERMORE SEVERAL IMPORTERS INQUIRED REPEATEDLY FROM THE COMPETENT GERMAN AUTHORITIES WHETHER THE ZERO LEVY WAS STILL IN FORCE, WHICH PROVES THAT THE IMPORTERS WERE AWARE OF THE ABNORMAL NATURE OF THE SITUATION .
P.265
IT IS NOT POSSIBLE, HOWEVER, TO ARGUE FROM THE SAID REQUESTS FOR INFORMATION THAT A DILIGENT IMPORTER WAS OBLIGED TO KEEP HIMSELF INFORMED OF THE SITUATION AT ALL TIMES . IT APPEARS BOTH FROM THE WORDING OF ARTICLE 17 OF REGULATION NO 19 AND FROM THE ACCOUNT OF THE FUNCTIONING OF THE COMMON ORGANIZATION OF THE MARKETS PROVIDED BY THE DEFENDANT THAT THE LEVY ANNOUNCED AT THE BEGINNING OF THE DAY NORMALLY REMAINS APPLICABLE DURING THE WHOLE DAY . IN THESE CIRCUMSTANCES, THE REQUIREMENT OF THE PRODUCTION OF PROOF EITHER THAT THE IMPORTER PURCHASED THE MAIZE ON 1 OCTOBER 1963 BEFORE 2.15 P.M . OR THAT HE COULD NOT HAVE BEEN AWARE OF THE WITHDRAWAL OF THE ZERO LEVY, WHICH MOREOVER WAS ILLEGAL, IS EQUIVALENT TO A REVERSAL OF THE BURDEN OF PROOF . AS SUCH A REVERSAL IS NOT JUSTIFIED, THE DEFENDANT MUST BE ALLOWED TO PROVE, WHERE APPROPRIATE, THAT THE PURCHASES OF MAIZE WERE MADE WITH KNOWLEDGE OF THE SAID WITHDRAWAL, THE RIGHT TO PRODUCE EVIDENCE TO THE CONTRARY BEING RESERVED TO THE APPLICANTS .
AS TO THE SECOND CATEGORY MENTIONED ABOVE, AS CERTAIN APPLICANTS REPUDIATED SOME OF THE CONTRACTS OF PURCHASE CONCLUDED ON 1 OCTOBER 1963 IN ANTICIPATION OF THE ISSUE OF THE IMPORT LICENCES APPLIED FOR, THEY ALLEGE THAT THEY HAVE SUFFERED INJURY BECAUSE OF BOTH THE EXPENSE WHICH THEY HAVE HAD TO BEAR IN REPUDIATING THE SAID CONTRACTS AS WELL AS THE LOSS OF PROFIT WHICH THEY HAVE SUFFERED IN RESPECT OF THE QUANTITIES OF MAIZE PURCHASED BUT NOT IMPORTED IN CONSEQUENCE OF THE PROTECTIVE MEASURE .
THE PENALTIES PAID FOR THE REPUDIATION OF THE CONCLUDED CONTRACTS OF PURCHASE ARE THE DIRECT CONSEQUENCE, ON THE ONE HAND, OF THE CONFIDENCE OF THE APPLICANTS CONCERNED IN THE PROPER APPLICATION OF REGULATION NO 19 AND, ON THE OTHER HAND, OF THE UNFORESEEN FACTOR CONSTITUTED BY THE PROTECTIVE MEASURE WHICH WAS RETAINED BY THE DECISION OF THE COMMISSION OF 3 OCTOBER 1963 . IN PURCHASING THE QUANTITIES OF MAIZE IN QUESTION ON 1 OCTOBER 1963, THE APPLICANTS CONCERNED LEGITIMATELY RELIED UPON THE SYSTEM OF LEVIES IN FORCE IN ORDER TO ENTER INTO CONTRACTUAL OBLIGATIONS IN RESPECT OF IMPORTS INTO THE FEDERAL REPUBLIC . THEY THUS HAVE THE RIGHT TO BE REIMBURSED FOR THE WHOLE OF THE INJURY SUFFERED THROUGH PAYMENT OF PENALTIES, UNLESS THE AMOUNT OF SUCH PENALTIES WAS HIGHER THAN NECESSARY .
P.266
THE APPLICANTS IN CASES 5/66, 13/66, 15/66 AND 21/66 MUST THUS BE ALLOWED TO SHOW THAT THE REPUDIATED CONTRACTS OF PURCHASE WERE MADE ON 1 OCTOBER 1963, THE RIGHT TO PRODUCE EVIDENCE THAT THEY ACTED IN KNOWLEDGE OF THE WITHDRAWAL WHICH TOOK PLACE AT 2.15 P.M . BEING RESERVED TO THE DEFENDANT .
THE ALLEGED INJURY IN RESPECT OF THE LOSS OF PROFIT IS BASED ON FACTS OF AN ESSENTIALLY SPECULATIVE NATURE . IN FACT, IT SHOULD BE SAID FIRST OF ALL THAT THE HASTY LODGING OF AN ABNORMALLY LARGE NUMBER OF APPLICATIONS FOR IMPORT LICENCES ON 1 OCTOBER PROVIDES AN INDICATION THAT THE PERSONS CONCERNED KNOW THAT THE DECISIONS IN FORCE ON 1 OCTOBER 1963 OFFERED UNUSUAL ADVANTAGES . FURTHERMORE, AS THE APPLICANTS FOR LICENCES KNEW THE FRENCH MARKET AND THE ACTUAL LEVEL OF PRICES RULING THERE, THEY WERE ABLE TO PERCEIVE THE ERROR COMMITTED BY THE COMMISSION IN THE DECISION OF 27 SEPTEMBER 1963, FIXING THE FREE - AT-FRONTIER PRICES . THUS THE APPLICANTS MAY BE REGARDED AS HAVING BEEN AWARE OF THE ABNORMAL SPECULATIVE NATURE OF THE TRANSACTION INVOLVED IN THEIR PURCHASES OF MAIZE . BY CANCELLING THE TRANSACTIONS CONCERNED, THEY AVOIDED ANY COMMERCIAL RISK TO THEMSELVES INHERENT IN IMPORTATION INTO THE FEDERAL REPUBLIC . CONSEQUENTLY IT IS NOT JUSTIFIABLE TO ACKNOWLEDGE THEIR RIGHT TO RECOVER THE WHOLE PROFIT THAT THEY WOULD HAVE BEEN ABLE TO OBTAIN IF THE TRANSACTION WHICH HAD BEEN STARTED HAD BEEN PERFORMED . TAKING THIS INTO ACCOUNT, THE INJURY RESULTING FROM LOSS OF PROFIT FOR WHICH THE COMMUNITY MUST BE REGARDED AS BEING LIABLE CANNOT EQUITABLY BE EVALUATED AT A SUM EXCEEDING 10 PER CENT OF THAT WHICH THE APPLICANTS WOULD HAVE PAID BY WAY OF LEVY, IF THEY HAD CARRIED OUT THE PURCHASES MADE BUT CANCELLED .
HOWEVER, WITH REGARD TO ANY INJURY SUFFERED BY THE APPLICANTS BELONGING TO THE FIRST AND SECOND CATEGORIES ABOVE-MENTIONED, THOSE APPLICANTS HAVE INFORMED THE COURT THAT THE INJURY ALLEGED IS THE SUBJECT OF TWO ACTIONS FOR DAMAGES, ONE AGAINST THE FEDERAL REPUBLIC OF GERMANY BEFORE A GERMAN COURT AND THE OTHER AGAINST THE COMMUNITY BEFORE THE COURT OF JUSTICE . IT IS NECESSARY TO AVOID THE APPLICANTS' BEING INSUFFICIENTLY OR EXCESSIVELY COMPENSATED FOR THE SAME DAMAGE BY THE DIFFERENT ASSESSMENT OF TWO DIFFERENT COURTS APPLYING DIFFERENT RULES OF LAW . BEFORE DETERMINING THE DAMAGE FOR WHICH THE COMMUNITY SHOULD BE HELD LIABLE, IT IS NECESSARY FOR THE NATIONAL COURT TO HAVE THE OPPORTUNITY TO GIVE JUDGMENT ON ANY LIABILITY ON THE PART OF THE FEDERAL REPUBLIC OF GERMANY . THIS BEING THE CASE, FINAL JUDGMENT CANNOT BE GIVEN BEFORE THE APPLICANTS HAVE PRODUCED THE DECISION OF THE NATIONAL COURT ON THIS MATTER, WHICH MAY BE DONE INDEPENDENTLY OF THE EVIDENCE ASKED OF THE APPLICANTS IN THE FIRST CATEGORY TO THE EFFECT THAT THEY HAVE EXHAUSTED ALL METHODS OF RECOURSE FOR THE RECOVERY OF THE AMOUNTS IMPROPERLY PAID BY WAY OF LEVY . FURTHERMORE, IF IT WERE ESTABLISHED THAT SUCH RECOVERY WAS POSSIBLE, THIS FACT MIGHT HAVE CONSEQUENCES BEARING UPON THE CALCULATION OF THE DAMAGES CONCERNING THE SECOND CATEGORY . HOWEVER, THE DECISIVE NATURE OF THE SAID EVIDENCE REQUIRED DOES NOT PREVENT THE APPLICANTS FROM PRODUCING THE OTHER EVIDENCE PREVIOUSLY INDICATED IN THE MEANTIME .
P.267
FOR THE PURPOSE OF THE PRODUCTION OF SUCH EVIDENCE, IT IS APPROPRIATE TO DISJOIN THE CASES IN QUESTION .
AS TO THE THIRD CATEGORY MENTIONED ABOVE, APART FROM CASES 7/66 AND 15/66 ALL THE APPLICANTS GAVE UP THE PROPOSED TRANSACTIONS EITHER IN PART OR IN WHOLE AFTER THE REFUSAL TO GRANT THE IMPORT LICENCES APPLIED FOR . THE TRANSACTIONS IN THESE CASES HAD NOT YET BEEN STARTED BY THE PURCHASE OF MAIZE ON THE FRENCH MARKET .
THE SAID APPLICANTS ALLEGE, HOWEVER, THAT THEY HAVE SUFFERED INJURY IN THAT THEY WERE UNABLE TO OBTAIN THE PROFITS FOR WHICH THEY WERE HOPING FROM THE INTENDED IMPORTS SUBJECT TO A ZERO LEVY . NEVERTHELESS THE SAID TRANSACTIONS DID NOT MATERIALIZE AND REMAINED AT THE STAGE OF AN APPLICATION FOR IMPORT LICENCES .
IN THESE CIRCUMSTANCES THE IMPORTS IN WHICH THERE WAS A MERE INTENTION TO ENGAGE LACK ANY SUBSTANTIAL CHARACTER CAPABLE OF GIVING RISE TO COMPENSATION FOR LOSS OF PROFITS .
IT IS NECESSARY THEREFORE TO FIND AGAINST THE APPLICANTS TO THE EXTENT TO WHICH THEIR ACTIONS ARE BROUGHT ONLY FOR COMPENSATION FOR LOSS OF PROFITS RESULTING FROM A TRANSACTION WHICH WAS NEVER COMMENCED . THE APPLICANTS IN CASES 17/66, 18/66, 20/66, 22/66, 23/66 AND 24/66 CONFINE THEMSELVES TO CLAIMING DAMAGES FOR LOSS OF PROFITS WITHOUT CLAIMING THAT ANY PURCHASES OF MAIZE WERE MADE BY THEM ON 1 OCTOBER 1963 . THEIR APPLICATIONS MUST THEREFORE NOW BE DISMISSED .
BY ARTICLE 69(2 ) OF THE RULES OF THE COURT, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY'S PLEADING .
THE APPLICANTS IN CASES 17/66, 18/66, 20/66, 22/66, 23/66 AND 24/66 HAVE FAILED IN THEIR APPLICATIONS . HOWEVER, AS A WRONGFUL ACT OR OMISSION ON THE PART OF THE DEFENDANT HAS BEEN FOUND TO EXIST, THERE ARE GROUNDS FOR APPLYING ARTICLE 69(3 ) OF THE SAID RULES OF PROCEDURE AND ORDERING THAT THE PARTIES BEAR THEIR OWN COSTS .
IN THE OTHER CASES COSTS ARE RESERVED .
THE COURT
HEREBY :
I . BY WAY OF INTERLOCUTORY JUDGMENT :
1 . ORDERS THE APPLICANTS IN CASES 5/66, 7/66, 13/66, 14/66, 15/66, 16/66, 19/66 AND 21/66 TO SEND TO THE COURT THE DECISIONS GIVEN BY THE RELEVANT COURTS OF THE FEDERAL REPUBLIC OF GERMANY CONCERNING THEIR ACTIONS FOR DAMAGES AGAINST THE FEDERAL REPUBLIC;
2 . ORDERS THE SAID APPLICANTS TO SEND TO THE COURT EVIDENCE IN WRITING THAT THEY HAVE EXHAUSTED ALL METHODS OF RECOUSE, BOTH ADMINISTRATIVE AND JUDICIAL, FOR OBTAINING REIMBURSEMENT OF THE SUMS IMPROPERLY PAID TO THE TREASURY OF THE FEDERAL REPUBLIC OF GERMANY BY WAY OF LEVY;
3 . ORDERS THE SAID APPLICANTS TO PRODUCE BEFORE 31 DECEMBER 1967 PROOF THAT ON 1 OCTOBER 1963 THEY MADE CONTRACTS FOR THE PURCHASE OF MAIZE ON THE FRENCH MARKET;
4 . IN RESPECT OF THE PRODUCTION OF PROOF REQUIRED UNDER PARAGRAPH 3 OF THIS JUDGMENT, ORDERS THE SAID CASES TO BE DISJOINED;
5 . ORDERS THAT THE COSTS BE RESERVED;
II . BY WAY OF FINAL JUDGMENT :
6 . DISMISSES APPLICATIONS 17/66, 18/66, 20/66, 22/66, 23/66 AND 24/66;
7 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .
