C-96/71

In Case 96/71

SOCIÉTÉ de Personnes À Responsabilité Limitée de Droit BELGE R. & V. Haegeman whose registered office is at Chaussé de Vilvorde, Brussels 60, re­ presented by Jacques Putzeys, Advocate of the Cour d'appel, Brussels, with an address for service in Luxembourg at the Chambers of Nicolas Wennmacher, Huissier, 17 boulevard Royal, applicant,

v

Commission of the European Communities represented by its Legal Adviser, Bernard Baulin, acting as Agent, with an address for service in Luxembourg at the Chambers of its Legal Adviser, Émile Reuter, 4 boulevard Royal, defendant,

1 — Language of the Case: French. 2 — CMLR.

JUDGMENT OF 25.10.1972 — CASE 96/71

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and Procedure tative restriction whereas Germany, France and Italy subjected these wines both to The facts and procedure may be sum­ customs duties and to quantitative re­ marized as follows: strictions varying in severity. The applicant is a trading company Article 9(3) of Regulation No 816/70 governed by Belgian law, an importer of provides that 'where the free-at-frontier wines and in particular of Wines from offer price for wine, plus customs duties, Greece. Until the entry into force of is lower than the reference price for that Regulation (EEC) No 816/70 of the Council wine, a countervailing charge equal to the of 28 April 1970 laying down additional difference between the reference price and provisions for the common organization the free-at-frontier offer price plus customs of the market in wine (OJ, English Special duties shall be levied on imports of that Edition 1970 (I), p. 34) the applicant was wine and of wines in the same category'. able to import its wines into the Benelux By subsequent regulations the Commission territory without having to pay any cus­ laid down detailed rules for the application toms duty or charge having equivalent of the countervailing charge in the wine effect. Further, the Benelux countries sector (Regulations (EEC) No 1019/70, accepted Greek wines without any quanti- OJ, English Special Edition 1970 (I), p. 294;

HAEGEMAN v COMMISSION

Article 9 of Regulation No 816/70 did We should be grateful if you would give us not represent a protective measure but a your final views as soon as possible so normal factor in the common organization that we may decide what measures to take of the market in wine. ourselves; in the hope of meeting with On 14 December 1971 Haegeman brought your understanding in the case with which an application for annulment against the we are concerned, we remain etc.' decision which it considered to be con tained in that letter. By letter dated 9 August 1971 signed by the upon hearing the report of the Judge- Director-General, the Directorate-General Rapporteur and the views of the Advocate- for Agriculture of the Commission in General the Court decided to open the oral formed Haegeman that the exemption procedure without any preparatory en sought was not justified, since the im

By letter dated 1 September 1971 addressed to the '1. declare the application admissible in Commission of the European Communities respect of both the claim for annul Haegeman replied that it considered that ment and for damages;

'(1) dismiss the application for annulment In answer the applicant specifies first that as inadmissible; its application is not for the amendment of a regulation but only requests that the (2) dismiss the claim for damages as in­ countervailing charge be not applied to its admissible or in any event as un­ imports of Greek wines. It maintains founded; further that it was not until after a demand dated 28 September 1971 that the defendant (3) order the applicant to bear the costs.' gave a ruling for the first time on its applica­ tion in so far as this related the permanent levying of the countervailing charge and no longer referred solely to contracts III — Submissions and arguments concluded previously. The Commission's of the parties answer contained in the letter of 15 October cannot therefore confirm the The submissions and arguments of the attitudes previously adopted in this respect. parties may be summarized as follows: With this letter the Commission for the first time set up a decision refusing the 1. Application for annulment request by which the applicant sought to obtain general exemption in respect of all A — Admissibility imports of Greek wines into the territory of the Belgo-Luxembourg Economic The defendant considers the application Union. It was thus a decision addressed inadmissible for the following reasons: individually to the applicant, which the applicant has an interest in contesting. It (a) The letter of 15 October 1971 does not is for the Commission by proper applica­ amount to a decision for it is without tion of the rules in question to prevent any legal effect. In this letter the them from being given a scope which Director-General for Agriculture makes them illegal because they conflict merely justifies the existence and the with the Athens Agreement.

question with this rule and in the event of The defendant objects that the provision refusal to ask the national court to enforce according to which the countervailing it. In this light the applicant's request to the charges in the wine sector must be levied Commission must be regarded as a com­ on wines imported from all third countries, plaint. A refusal by the Commission in including Greece, is contained in basic respect of such a measure is not capable of Regulation No 816/70 (first subparagraph being the subject of an application for of Article 9(3)). The applicant ought annulment. therefore to direct its criticism against that From a second point 0f view, according to provision since Regulation No 2700/70 of which the Commission was called upon by the Commission merely fixes countervailing the previous request of the applicant to charges and does not itself imply that these adopt a legal measure providing that the charges are applicable to Greece. The area countervailing charge was not applicable of application of the charges fixed by the to Greek wines imported into the Belgo- Commission follows directly from Regula­ Luxembourg Economic Union, the de­ tion No 816/70 of the Council. Accordingly, fendant observes that the measure thus if Article 9 of Regulation No 816/70 had requested would necessarily have to have to be declared illegal in respect of Greece, taken the form of a regulation relating the terms of the regulation of the Com­ to all imports of Greek wines into the mission would in no way be affected. The Benelux countries. The refusal of the defendant concludes from this that the Commission to adopt such a measure is submission put forward by the applicant is not capable of being contested by an irrelevant. individual, a fortiori because even if the Moreover this submission is unfounded. Commission had wished, it could not In this respect the Commission observes have complied with the applicant's request that the words 'countervailing charge' as it did not have the legal basis to do so. contained in Article 43 of the agreement with Greece is an economic concept having no precise legal meaning. Article 43 of the B — Substance of the case agreement, like Article 46 of the EEC Treaty, was devised to make available to First submission whichever party to the agreement was adversely affected by the measures for the The applicant observes that the Agreement organization of the market applied by the of Association between the Community other party an appropriate means of and Greece establishes a customs union defence in the form of a countervailing which implies the abolition of any obstacles charge, that is to say, an anti-dumping or to the free movement of goods subject only compensatory duty according to the (in Article 43) to the possibility in certain GATT terminology. In the present case, circumstances of a countervailing charge. since the Community has established a

The applicant states that it in no way on the importation of certain agricultural claims that Article 43 of the said agree­ products from the Community and from third countries. ment applies to the present case and that it has put forward the submission based on It is true that, levied as it is on imports of this provision only in case the Court Greek wines into the Benelux countries, should consider it applicable. Contrary the countervailing charge does not fulfil to the defendant's statement, the applicant its proper function, since these wines may considers that the procedure referred to by come in at a price lower than the reference this provision is mandatory and not prices. However the system must be ap­ indicative. praised with regard to the whole of the Community. On this latter point the defendant states The applicant in reply says that although that it has never sought to maintain that the procedure for fixing charges provided it is true that the advantage that Greek wine has over wines from third countries for in Article 43 is purely indicative, and had simply stated that this provision did has been preserved, nevertheless the not prohibit the parties to the agreement preferential competitive relationship es­ from devising and applying other ap­ tablished by Protocol No 14 has been propriate measures. unilaterally broken in favour of wines imported from France, Italy and Germany. Second submission It advocates moderate interpretation of the meaning of the word 'treatment' in para­ The applicant maintains that the defendant graph (2) of Protocol No 14: the contract­ has infringed paragraph (2) of Protocol ing parties have established by means of No 14 by levying a countervailing charge this provision a system of importation of on imports into the Belgo-Luxembourg Greek wine into the territory of the Com­ Economic Union while such charges were munity and this constitutes only one not levied on imports from other Member factor in a common organization of the States. market. Since the system of importation

(the applicant states) only levies within the The applicant considers that the solution to framework of the common agricultural this problem should be sought in the policy are envisaged whereas the European general principles of international law. Economic Community is only at the pre­ On this basis an international treaty takes liminary stage of the common organization precedence over a national legislative of the market. provision and the same applies to the Com­ If this protocol had nevertheless to be munity legal system. Accordingly, the regarded as applicable, the applicant problem which arises in the present case observes that (as the defendant acknowl­ is whether the Agreement of Association edges in the present case) since the counter­ in question contains self-executing provi­ vailing charge applied to Greek wines does sions creating a personal right for the not fulfil its proper function, it is not in nationals of Member States. According the nature of a levy and cannot therefore to the applicant this is so with regard to come within the exceptions laid down in Articles 12 and 37 of the Agreement of respect of the levies. In the context of the Association which are only a re-enactment present application the effect of the of the standstill clause contained in countervailing charge must be appraised Article 12 of the EEC Treaty. The same only in respect of imports of Greek wines is true with regard to the provisions of into the territory of the Belgo-Luxembourg Article 43 of the agreement and of Protocol Economic Union. No 14 which is annexed thereto. The The defendant objects that the treatment applicant has a personal right to claim referred to in paragraph (2) of Protocol observance of the rules for implementation No 14 must be understood in relation to which are laid down by Article 43 in the position within the Community in respect of the introduction of a counter­ 1962. It referred only to the obstacles vailing charge. Protocol No 14 which is an which existed at that time in trade between •integral part of the Agreement of Associa­ the Member States, that is to say, to tion (Article 74) and which is of a self-

B — The substance of the case

2. The claim for damages (a) First submission

A — Admissibility The applicant claims that its legitimate expectations were disappointed because the defendant did not comply with the The applicant maintains that apart from Resolution of the Council of 6 February the annulment of the contested measure 1970 on the common organization of the and the refund of the duties wrongfully market in wine, a resolution in which the exacted, it is entitled to claim damages intention had been shown to lay down in for the injury resulting from the quasi- the basic regulation the system applicable tortious wrongful act committed by the to wines from associated countries. The Commission. applicant had therefore to bear the ex­ The defendant maintains that the claim pense of the countervailing charge in for damages is misdirected for if there has respect of its existing contracts without been damage it has been caused not by being able to include it in the price already the Commission but by the Council as agreed. appears from the observations made above. The defendant makes the preliminary In its reply the applicant states that a observation that if the application for distinction must be made between the annulment were dismissed this would two limbs of its claim for damages: mean that the contested measure was not unlawful and would suffice to remove all 1. The application based on the non- foundation for the claim for damages.

HAEGEMAN v COMMISSION

negotiations. These proposals had been 'third country' system since the Com acted upon as regards Algeria, Morocco, munity was willing to provide in this Tunisia and Turkey, whereas the question respect for a preferential system to be of Greece has not yet been settled. determined. Subsequently (more precisely, The applicant replies that while it could as from 1 November 1971 in respect of have expected that the preferential system wines from Algeria and from 1 January resulting from the Agreement of Associa 1972 in respect of wines from Morocco, tion would be confirmed it was bound to Tunisia and Turkey) these wines were conclude that the Commission had given made subject to the uniform Community notice that the countervailing charge system. Before the establishment of this would be applied from one day to the next uniform system the Commission did not even to existing contracts. authorize in respect of wines from these In rejoinder the defendant says that the States any measures based on Article 115 introduction of the charges in question of the EEC Treaty; this was due to the fact was provided for under the heading of that under the transitional system these levies in the proposal of the Commission wines could only circulate in the territory to the Council published on 21 August of the Member State into which they had 1967 (JO 201, p. 13) and that the Council been imported. established the principle thereof in its In reply the applicant says that the Com resolution of 10 February 1970 (JO C 19, mission was under a duty to maintain

Moreover, within the territory of the Belgo-Luxembourg Economic Union it has (b) Second submission suffered damage arising from the com petition from wines imported from other The applicant complains that the Com previleged countries not subject to the mission upset the equilibrium between levying of a countervailing charge. the system of countries benefiting from a The defendant objects that the case of preferential system by abolishing the Greece was different from that of other countervailing charge on imports of wines associated countries benefiting from a from Turkey, Algeria, Morocco and transitional system after the entry into Tunisia whereas in respect of Greece by force of Regulation No 816/70.

JUDGMENT OF 25.10.1972 — CASE 96/71

system of imports satisfactory to Greece The assessment of the damage and the Community should result from bilateral negotiations the opening and out­ Reserving the right to supply further come of which in June/July 1970 appeared particulars or increase its claim the very uncertain for well-known political applicant assesses the material and non- reasons, the Commission was entitled to material damage which it has suffered adopt transitional measures only until 31 as a result of loss of profit, unforeseen August 1971 at the latest (Article 37 of outlay and losses on existing contracts at Regulation No 816/70). 10 000 u.a.

Grounds of judgment

1 The Haegeman undertaking is asking the Court to declare Regulation No 1019/70 (OJ, English Special Edition 1970(I), p. 294) and Regulation No 2320/70 (JO L 250) of the Commission and all other regulations of similar effect inapplicable to imports of Greek wine into the territory of the Belgo-Luxembourg Economic Union and thereby to annul the decision of 15 October 1971 refusing to exempt the applicant from the countervailing charge and to order the refund of the countervail­ ing charges wrongly levied.

2 By letters dated 9 August, 27 September and 15 October 1971 the Commission refused to accede to the applicant's request for a refund of the levies which it claimed to have paid wrongly on its imports of Greek wine.

3 The application essentially seeks the annulment of this refusal and thereby the refund of the contested charges.

9 The countervailing charge in question is part of the own resources referred to in Article 6 of the Council Decision of 21 April 1970.

10 It is therefore for the competent national authorities to rule on claims for the refund of that charge.

11 The applicant's claim for a refund should therefore have been made to those authorities.

12 In these circumstances the Commission ’s refusal of the applicant ’s request is not an act capable of being the subject of an application for annulment within the meaning of Article 173 of the Treaty.

13 The application for annulment is therefore inadmissible.

14 The applicant maintains further that by reason of the defendant’s behaviour it has suffered exceptional damage as a result of loss of profit, unforeseen financial outlay and losses on existing contracts.

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 the Treaty establishing the European Economic Community, especially Article 173 and the second paragraph of Article 215; Having regard to Article 6 of the Council Decision of 21 April 1970 on the replacement of financial contributions from Member States by the Communities' own resources;

Having regard to Regulation No 816/70 of the Council; Having regard to Regulation (EEC) Nos 1019/70 and 2320/70 of the Commission; Having regard to the Protocol on the Statute of the Court of Justice of the Euro­ pean Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,

THE COURT

hereby:

1. Dismisses the application for annulment and the claim for damages;