C-5/66

JUDGMENT OF 14. 7. 1967 — JOINED CASES 5, 7 AND 13 TO 24/66

7. Agriculture — Common organization of the markets — Cereals — Regulation No 19 — Sphere of application — General interests concerned — Possibility of pro­ tection of individual interests

In Joined Cases

5/66 FIRMA E. Kampffmeyer, whose offices are in Hamburg, represented by its sole member, Kurt Kampffmeyer,

KAMPFFMEYER v COMMISSION

7/66 FIRMA P. Kruse, whose offices are in Hamburg, represented by its sole member, Mrs Margarethe Maria Kruse, nee Tiede,

13/66 GETREIDE-IMPORT-GESELLSCHAFT MBH, having its registered office in Duisburg, represented by its managers, Wilhelm Specht and Wilhelm Breder,

14/66 FIRMA Peter Cremer, whose offices are in Hamburg, represented by its sole member, Peter Cremer,

20/66 Offene Handelsgesellschaft in Firma Franz Hagen, having its regis­ tered office in Hamburg, represented by its personally liable member, Hans Helmut Friedrich Porr,

JUDGMENT OF 14. 7. 1967 — JOINED CASES 5, 7 AND 13 TO 24/66

21/66 KOMMANDITGESELLSCHAFT IN FIRMA LUDWIG WÜNSCHE & CO., having its registered office in Hamburg, represented by its personally liable member, Karl Konstantin Ludwig Wünsche,

22/66

Firma Alfred Toepfer, whose offices are in Hamburg, represented by its sole representative, Günther Martin,

23/66 Firma C. Schwarze, whose offices are in Bremen,

defendant,

Application for damages under the second paragraph of Article 215 of the Treaty establishing the EEC,

KAMPFFMEYER v COMMISSION

THE COURT

composed of: Ch. L. Hammes, President, A. Trabucchi and R. Monaco, Presidents of Chambers, L. Delvaux, R. Lecourt, A. M. Donner (Rapporteur) and W. Strauß, Judges,

Advocate-General: J. Gand Registrar: A. Van Houtte

I — Summary of the facts (hereinafter referred to as 'the EVSt'), and posted in its buildings. An import The facts may be summarized as licence which is necessary for the follows: importation of cereals is issued by the The applicants are German importers EVSt upon request. of cereals. Among other things, they Article 2 (1) of Regulation No 31/63 make regular importations of maize of the Council provides for the possi­ originating in France. Since 31 July bility of fixing the rate of levy in 1962, trade in cereals and products advance in the import licence in the derived therefrom between the Member case of 'the importation of maize States has been governed by the pro­ originating in France. In this case the visions of Regulation No 19 of the EVSt is obliged to apply the rate Council, on the gradual establishment applicable on the date on which the of a common organization of the market request for the licence is received. in cereals. Relying on a decision of the Com­ In order to co-ordinate prices in trade mission of 27 September 1963, fixing between the Member States Regulation free-at-frontier price, the EVSt on 1 No 19 provides that the State into the October published, by notice in its territory of which goods are imported buildings, a rate of levy applicable to shall impose a levy. This levy corres­ maize originating in France of 0.00 ponds to the difference between the DM. On the same day the applicant free-at-frontier price of the exporting companies requested import licences for country, fixed daily by the Commission, the importation of maize originating in and the threshold price, fixed by the France with the rate of levy fixed in importing country. When the free-at- advance at 0.00 DM for the month of frontier price is equal to or higher than January 1964. In all import licences for the threshold price, the levy is fixed a totel of 126 000 metric tons were at zero. requested on 1 October for January In Germany, the rates of levy per metric 1964. On the same date, the applicant ton are calculated by the German companies in Cases 5/66, 7/66, 14 to department responsible for organization 16/66, 19 /66 and 21/66 also pur­ of the market, the Einfuhr- und Vorrats­ chased certain quantities of French stelle fur Getreide und Futtermittel maize.

By a decision of 3 October 1963 the 1966, 26 April 1966, 28 April 1966, EVSt refused to grant the import 7 June 1966, 22 June 1966 and 22 licences requested for January 1964, July 1966 the respective firms and com­ basing its refusal on the protective panies in Cases 5/66, 7/66, 13/66 and measure taken by the German Govern­ 14 to 24/66 made an application ment on 1 October, in accordance with against the Commission of the EEC Article 22 (1) of Regulation No 19, and for the payment of damages and including a suspension of import interest. licences. By a decision of 3 October 1963 the Commission, which had already fixed a II — Conclusions of the new free-at-frontier price as from 2 parties October 1963, authorized the German government to keep in force until 4 The applicants claim 'that the Court October the protective measures which should: had been notified to it on 1 October, 1. Order the defendant to pay: in accordance with Article 22 (2) of (a) to the applicant in Case 5/66, Regulation No 19. the sum of 148 104.62 DM, plus In its judgment of 1 July 1965 in interest at the rate of 7% from Joined Cases 106 and 107/63, the the date of the application, Court of Justice held the decision of (b) to the applicant in Case 7/66, the Commission of 3 October to be the sum of 55 030.81 DM, plus illegal and annulled it. interest at the rate of 7% from The applicants in Cases 5, 7, 14 to 16, the day on which proceedings 19 and 21/66 carried out contracts for were commenced, the purchase of French maize concluded (c) to 'the applicant an Case 13/66, by them on 1 October 1963 (in Case the sum of 1 640 880 DM, plus 21/66 a contract concluded on 23 interest at the rate of 4% from August as well) and imported the the lodging of the application, quantities purchased against payment of (d) to the applicant in Case 14/66, the levy at the rate applicable at the the sum of 115 049.20 DM, plus date of importation. The applicants in interest at the rate of 7% from Cases 5, 15 and 21/66 cancelled cer­ the commencement of proceed­ tain contracts of purchase of 1 October ings. 1963 against payment of compensation. (e) to the applicant in Case 15/66, The applicants in Cases 5/66 (by letter the sum of 55 285.90 DM, plus of 4 October), 7/66, 14 to 17/66 and interest at the rate of 7% from 19 to 21/66 (by letter of 29 September) the commencement of proceed­ and 18/66 (by letter of 12 September) ings, requested the Commission to honour (f) to the applicant in Case 16/66, its obligation to make good the damage the sum of 93 956.30 DM, plus caused by its decision of 3 October. interest at ±e rate of 7% from By letters of 28 October 1965, the Com­ the commencement of proceed­ mission stated that it would make a ings, decision concerning the applicants' re­ (g) to the applicant in case 17/66, quests. the sum of 48 000 DM, plus By a decision of 2 March 1966, notified interest at the rate of 7% from on 4 March 1966, the Commission in­ the commencement of proceed­ formed the applicants that it disputed ings, any obligation to make reparation. (h) to the applicant in Case 18/66, On 17 February 1966, 24 February the sum of 32 000 DM, plus

interest at the rate of 4% from Although agreeing with the defendant's the commencement of proceed­ opinion that Article 43 of the Statute ings, does not apply in the present case, the (m) to the applicant in Case 23/66, applicants assert, with arguments in the sum of 63 435 DM, plus support, that their applications should interest at the rate of 4% from be considered as admissible. the commencement of proceed­ In its rejoinder the defendant adheres ings, to its original position, whilst disputing (n) to the applicant in Case 24/66, the correctness of certain arguments of the sum of 211450 DM, plus the applicants. interest at the rate of 4% from the commencement of proceed­ B — The substance of the case ings; (a) The alleged unlawful act or 2. Order the defendant to pay the costs omission of the proceedings. The defendant contends that the Court The applicants assert that they have should: suffered injury as a consequence of the — dismiss the applications as unfound­ conduct of the Commission of the EEC ed, and which, instead of abolishing the pro­ — order the applicants to pay the costs. tective measure taken by the Federal Republic of Germany, which would have required that Member State to III — Submissions of the annul that measure with retroactive parties effect and to grant the licences (requested, illegally maintained the said protective A — Admissibility measure. This retention of the measure The defendant relies on the fact that was illegal because there was no reason all the applicants, with the exception to anticipate a serious disturbance on of those in Cases 13/66 and 22 to the German market, as an institution 24/66, made requests to it for damages as specialized and as highly qualified by letters sent on the dates mentioned in the observation of the market as the

Commission ought to have known. tended to protect the interests of the Consequentlyit behaved in a most applicants. The duty of the Commission imprudent manner and this constituted to verify the legality of protective an unlawful act or omission on its measures was not laid down in the part. interests of the applicants, but in the The applicants, deducing from the judg collective interest of the proper func ment in Joined Cases 9 and 12/60 tioning of the common organization of (Vloeberghs) that only infringements of the markets in cereals.

Al is to say, a power to review the legality though the changes in market prices of the action of a Member State. in exporting countries require regular The applicants state in their reply that, alterations of the free-at-frontier prices, as the Court of Justice has decided it is unacceptable, on the other hand, that the applicants in Joined Cases to make alterations with retroactive 106 and 107/63 were directly and effect to a price once settled, for individually concerned by the decision importers should be able to have con of the Commission, it follows that they fidence that decisions fixing free-at- may logically make a request for repara frontier prices are correct and definitive. tion within the meaning of the second According to the Commission itself, the paragraph of Article 215 of the Treaty. decision of 27 December corresponded By its decision the Commission infring to the facts, so that the Commission ed the right of the applicants to the should have been particularly careful free movement of goods as provided in respect of protective measures of a For toy Regulation No 19, not only in Member State which were substituted the interest of the Member States but with retroactive effect for the findings also in the interests of the individuals

KAMPFFMEYER v COMMISSION

Joined Cases 29, 31, 36, 39 to 47, 50 Regulation No 19 is complicated by and 51/63 (Providence) and the the fact that a decision must be opinions of the Advocates-General in taken within not more than four the Cases of Feram, Vloeberghs, Chasse working days of the notification of and Plaumann (25/621. the protective measure, during which The reply to the questions of the exis- time the Member States must be

JUDGMENT OF 14. 7. 1967 — JOINED CASES 5, 7 AND 13 TO 24/66

takes likely to give rise to public simply adopted the fears of the liability must show a marked degree German administration; of seriousness; -that, apart from this, by taking that — that in putting forward the argu decision of 3 October 1963, the ment already advanced in Joined defendant committed an extremely Cases 106 and 107/63 (Toepfer) the grave wrongful act or omission; by defendant claims that its attitude requiring a Member State which was legally defensible and that it takes protective measures to notify could have regarded the German them to the Commission not later market as being threatened by a than the date of their entry into serious disturbance in the sense force, Article 22 shows that such mentioned above; measures cannot enter into force — that it was not alone in considering before 'the time of their notification; that the conditions for applying the Federal Republic adopted the Article 2 were fulfilled, that 'the protective measure during the after

that there was negligence on the part very fact infringed perfectly clear of the defendant, the latter relies provisions, presenting no difficulty upon the fact that under the terms of interpretation; all the applicants of Article 22 as regards the Member which made their requests on 1 States it carries out only a duty of October before the afternoon were supervision; thus 'the Advocates- prejudiced by this fact; General have stated time and again — that, in addition, in the present case that carrying out such duty does not the Commission should have observed result in public liability except in the principle of proportionality and case of 'gross malfeasance'. limited its intervention to the The foregoing explanations show suffi

KAMPFFMEYER v COMMISSION

— further, that all the attempts to tion only the development of prices grade wrongful acts or omissions and not the influence which these according to their seriousness are imports were capable of exercising contrary to the general principles on the objectives laid down in Article common to the Member States in the 39 of the Treaty, as the wording of sphere of public liability; Article 22 requires; thus the Com­ — furthermore, that it is wrong to mission neglected an essential condi­ classify the tasks which Article 22 tion of fact for the application of entrusts to the Commission as a Article 22 (2) and committed an act mere duty of supervision; it is not of gross malfeasance; a matter of a wrongful act or omis­ — that, by virtue of Article 215 of the sion arising out of non-intervention; Treaty and in accordance with the the defendant found itself in a posi­ general principles common to the tion where it had to decide in­ law of the Member States concerning dependently and to carry out its liability, 'the defendant must also own administrative duties. make good the damage resulting In addition, the applicants counter the from slight negligence; in denying arguments of the defendant that its the existence of the said principle assessment of the state of the German the defendant wrongly relies on the market was perfectly justifiable with case-law of the Court; this applies contrary arguments similar to those put only to Article 40 of the ECSC forward in Joined Cases 106 and Treaty and furthermore does not 107/63 (Toepfer). apply to duties of mere supervision; The applicant in Case 13/66 also adds: in the present case 'the wrongful act — that the defendant cannot rely on or omission of the Commission does the shortness of the period given to not lie in the mere fact of not it by Article 22 'because in the having intervened but in that of present case it did not even take having acted and of having expressly advantage of that period, but came approved the German protective to a decision as early as 3 October measure.

sible; in this respect it mentions again (b) The causal link the agreement of the Management Com The parties hardly discussed the exist mittee, and in particular that of the ence of a causal link between the French representative, which may be wrongful act or omission and the al a not unimportant factor in support of leged injury. Thus, as has already been its assessment; returning to the special nature of the duty of supervision which indicated above, the applicants claim that the Commission should have abol is conferred on it by Article 22, it ished the protective measure, so that alleges that according to general prin they could still carry on properly the ciples it is the party under supervision transaction entered into on the basis of which is responsible in the first instance

In the present taken into account. The shortness of case the action against the defendant in the four-day period granted by Article public liability cannot nevertheless be 22 of Regulation No 19 complicated based upon a failure to act. The cause the preparation of the decision, par of any damage suffered by the appli ticularly in the present case, as the cant is not, in fact, the authorization Commission, in the absence of a pre to retain the protective measures—the cedent, had no experience in respect of damage having already being caused by the supervision of protective measures. the German protective measures—but The decision of 3 October 1963 was the fact of having refrained from re motivated by the reasons set out in its quiring Germany to abolish the protec defence; furthermore in Joined Cases tive measures'. 106 and 107/63 neither the Advocate- General nor the Court found an in (c) The concurrence of obligations to

KAMPFFMEYER v COMMISSION

3/61 (Fives-Lille-Cail). pation of the licences requested; the re In their reply the applicants state on the fusal of the said licences following the other hand that the calculation of the protective measure of the Federal levy for 1 October 1963 was correct and Government, which was maintained by in accordance with the provisions applic the Commission, caused them to suffer able in the matter and that, if there had considerable injury which they dis been an incorrect fixing of the free-at- tinguish as follows: frontier price, it would have been logical to remove this error with effect ex nunc I — the alleged losses suffered in carry and to fix a new free-at-frontier price. ing out the said contracts of pur As the zero levy published on 1 October chase (damnum emergens); 1963 followed necessarily from the ap plication of the legal provisions in force, II — the penalty paid on the repudiation of certain contracts. no importer had any doubt as to the correctness of this rate of levy. The defendant disputes the correctness In its rejoinder the defendant repeats that of the calculations set out in the appli it must have been clear to an concerned cations and the argument concerning the that the zero levy had opened a major calculations continues in the reply and gap in the whole system, and adds that the rejoinder. More generally, the de in any case there was reason to presume fendant raises two points: improper conduct on the part of the I — In respect of the losses suffered by applicants which made contracts of pur the applicants, the losses resulting from chase after 2.15 p.m. on 1 October as the contracts of purchase concluded on the EVSt announced at that time by 1 October 1963 were due to the improper means of a notice that the published conduct of the applicants themselves; levy had been withdrawn. the excessive quantity for which the im II — In respect of the alleged failure to port licences were requested on 1 Octo make a profit, the defendant relies upon ber shows without any possible doubt the principle claimed to be common to that the importers knew on that day that the laws of the Member States according a large gap had been opened in the levy to which no reparation can be claimed

issued, be refused. They should have importing with a zero levy cereals which known that a situation such as that ob- could be purchased in the exporting

country at a price considerably lower again dispute the existence of the prin than the threshold price of the importing ciple relied upon by the defendant by country is incompatible with the prin denying that it is common to the law ciples of the said regulation. It is even of the Member States. It follows from less in accordance with the said prin the defendant's assertion that its decision ciples that the importers should obtain of 27 September which led to a zero from this situation benefits of 11 or 15 levy was correct that the applicants justi DM per metric ton, because these bene fiably made their requests for licences; fits far exceed the margin which Regu for so long as he observes the law the lation No 19 regards as normal, namely importer cannot obtain benefits which the margin which should be taken into may be described as abnormal or con account at the time of fixing of the trary to public policy.

lic policy. The argument that Regulation makes. Consequently these profits are No 19 fixes a commercial margin of 3 legitimate, even if they be abnormally DM per metric ton is totally incorrect. large, as long as they conform to the When they complain of levies which are rules laid down. too high to allow a reasonable profit im In its rejoinder the defendant repeats the porters still encounter the argument that argument that, although the zero levy of the levy was calculated in strict applica 1 October was literally in accordance tion of the legal provisions in force and with Regulation No 19, it was neverthe that the legislature is compelled to accept less substantially contrary to the very a certain floating flat-rate solution. In principles embraced by this regulation the present case the defendant is obliged which, whilst allowing a certain margin to put forward the same considerations; of uncertainty, because of flat-rate solu in condemning the margins of profit re tions (being accepted, is nevertheless op sulting from a zero levy they allow finan posed to differences such as those obtain cial reasons to appear which are com

KAMPFFMEYER v COMMISSION

cate-General, the Court decided to open tion on the fixing of free-at-frontier the oral procedure without making any prices. preparatory inquiry, whilst asking the ap­ The parties lodged their replies within plicants by letter of 10 February 1967 the prescribed period and presented oral for certain information concerning their argument at the hearing on 14 March actions pending before the German 1967. courts. The Advocate-General delivered his Also by a letter of 10 February 1967, opinion at the hearing on 19 April the Court put to the defendant a ques- 1967.

Grounds of judgment

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 'author­ izing 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 result­ ing from importation on unfavourable conditions of quantities actually de­ livered and, on the other hand, in the loss of profit resulting from the impossibility of importing the cereals at a zero levy.

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 limita­ tion 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. Con­ sequently 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 ad­ missible.

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.

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.

JUDGMENT OF 14. 7. 1967 — JOINED CASES 5, 7 AND 13 TO 24/66

sion 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.

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 Com­ munity rules. The Commission's conduct constituted a wrongful act or omis­ sion 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.

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 requirments laid down by its own provisions and those of subsequent regula­ tions. Article 22 constitutes an exception to these general rules and conse­ quently 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 includ­ ing 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 pre­ vent 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.

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.

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, how­ ever, 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 im­

properly 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 subse­ quent dates sufficiently close to that month to justify the supposition that an importation during that month would have been possible. It is thus appro­ priate 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 above- mentioned applicants to produce evidence that the quantities of maize im­ ported in or near the month of January 1964, to which they refer, were pur­ chased by contracts made on 1 October.

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 more­ over 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 anticipa­ tion 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 appli­ cants 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 appli­ cants 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.

However, with regard to any injury suffered by the applicants belonging to the first and second categories above-mentioned, those applicants have in­ formed 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 compen­ sated 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

KAMPFFMEYER v COMMISSION

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.

For the purpose of the production of such evidence, it is appropriate to disjoin the cases in question.

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.

JUDGMENT OF 14. 7. 1967 — JOINED CASES 5, 7 AND 13 TO 24/66

In the other cases costs are reserved.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to Article 215 of the Treaty establishing the European Economic Community; Having regard to Regulation No 19 of the Council of the said Community dated 4 April 1962, especially Article 22; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;

THE COURT

5. Orders that the costs be reserved;

KAMPFFMEYERvCOMMISSION

II.Bywayoffinaljudgment:

6.DismissesApplications17/66,18/66,20/66,22/66,23/66and 24/66;

7.Ordersthepartiestobeartheirowncosts.

Hammes Trabucchi Monaco

1—TranslatedfromtheFrench.