C-26/74

JUDGMENT OF THE COURT 21 MAY 1976 1

Société Roquette Frères v Commission of the European Communities

Case 26/74

Summary

1. EEC — Own resources — Monetary compensatory amounts — Amounts improperly collected — Reimbursement — Award of interest — National authorities — Jurisdiction (Decision of the Council of 21 April 1970, Article 6; Regulation No 2/71 of the Council, Article 1);

2. Non-contractual liability — Application — Claim for nominal damages — Specific damage — Causal connexion — Proof (EEC Treaty, Article 215)

re-opening of the oral procedure, by its Legal Advisers Michel Van Ackere and Richard Wainwright, acting as Co-agents, with an address for service in Luxembourg at the office of its Legal Adviser, Mario Cervino, Bâtiment Chemins de Fer Luxembourgeois, place de la Gare,

defendant,

Application for compensation under the second paragraph of Article 215 of the EEC Treaty in connexion with monetary compensatory amounts.

THE COURT

composed of: R. Lecourt, President, H. Kutscher and A. O'Keeffe, Presidents of Chambers, A. M. Donner, J. Mertens de Wilmars, P. Pescatore and Lord Mackenzie Stuart, Judges,

Advocate-General: A. Trabucchi

national currency, lower than the At the beginning of 1973 the actual intervention or buying-in prices laid market exchange rates of the currencies down by Community rules on the basis of certain Member States appreciably of the official parity, the Council, by exceeded the lower limit of fluctuation Regulation No 974/71 of 12 May 1971 permitted by the international rules in on certain measures of conjunctural force on 12 May 1971. By means of policy to be taken in agriculture Regulation No 509/73 of 22 February following the temporary widening of the 1973, amending Regulation No 974/71 margins of fluctuation for the currencies (JO L 50, p. 1), the Council therefore of certain Member States (JO L 106, p. provided for the grant on imports and 1), gave its authority, subject to certain the charge on exports of compensatory conditions to Member States which, for amounts by those Member States whose the purposes of commercial transactions, currencies had thus decreased in value. allowed the exchange rate of its currency to fluctuate by a margin wider than the Regulation No 509/73 added to one permitted by international rules, to Regulation No 974/71 an Article 4 a, apply compensatory amounts, to be according to which, in trade with third charged on imports of certain agricultural countries, compensatory amounts granted products granted on certain exports. on imports shall be deducted from the import charge and compensatory According to Article 1 (2) of Regulation amounts charged on exports shall be No 974/71 compensatory amounts are deducted from the export refund and, in applicable, on the one hand, to products trade between the Member States and covered by intervention arrangements with third countries, compensatory under the common organization of amounts due to the decrease in value of agricultural markets, and, on the other the currency concerned may not be hand, to products whose price depends higher than the charge on products on the price of the products mentioned imported from third countries. above and which are governed by the common organization of the market or By Regulation No 218/74 of 25 January are the subject of a specific arrangement 1974 of 25 January 1974 fixing the under Article 235 of the EEC Treaty. monetary compensatory amounts and In accordance with the final recital to certain rates for their application (JO L Regulation No 974/71 the compensatory 24, p. 1), the Commission recorded, in amounts should be limited to the particular, that the currency of France amounts strictly necessary to compensate had depreciated by more than the the incidence of the monetary measures margin of fluctuation permitted and fixed, for that Member State, the on the prices of basic products covered by intervention arrangements and should monetary compensatory amounts to be be applied only in cases where this charged on exports and granted on incidence would lead to difficulties. imports of certain agricultural products.

and foodstuffs concerning monetary Republic and the Commission of the compensatory amounts. European Communities, and, on the other hand, in the present action by the The company Roquette Frères, having its Roquette company and the Commission. registered office at Lestrem (Pas- de-Calais), is largely concerned in the The Advocate-General delivered his manufacture of amyloid products opinion in both cases at the hearing on processed from maize, mainly intended 23 October 1974. for export. In its judgment of 12 November 1974 in As from 28 January 1974 the French Case 34/74 ([1974] ECR 1217) the Court Customs Administration demanded of gave a preliminary ruling on the the Roquette company the payment of questions submitted to it by the Tribunal monetary compensatory amounts on its d'instance of Lille. exports of amyloid products both to Member States and to third countries. On the same date the Court decided to stay the proceedings in the present case until the Tribunal d'instance of Lille had II — Procedure given judgment on the substance of the Since it was of the opinion that the dispute before it. payment of those compensatory amounts could not be justified, the Roquette By a judgment of 22 April 1975 the Tribunal d'instance of Lille found, company brought two parallel actions: it instituted proceedings before the referring to the preliminary ruling of the Court of 12 November 1974, that there Tribunal d'instance of Lille, against the French Customs Administration and, was no legal basis for the monetary pursuant to the second paragraph of compensatory amounts claimed from the Article 215 of the EEC Treaty, by an Roquette company during the period application entered at the Court Registry from 28 January to 21 October 1974 on on 26 March 1974, it brought the present the exportation of amyloid products action for compensation against the manufactured by it; consequendy it ordered the French State, Customs Commission of the European Com­ munities. Administration, to make a payment of FF 7 500 000 on account to the Roquette The written procedure in the present company, and suspended judgment with case followed the normal course. regard to the balance.

A — With regard to admissibility The additional oral observations of the parties and their replies to the questions Although the Commission does not raise put by the Court were heard on 9 March a formal objection of inadmissibility it 1976. disputes various aspects of the admissibility of the application. The Advocate-General delivered a further opinion at the hearing on 31 March (a) Although in its judgment of 12 1976. November 1974 in Case 34/74 the Court found that the Commission had made an error it did not find that it was thereby III — Conclusions of the parties guilty of wrongful act or omission. What occurred in the present case was not a Since the applicant has obtained the negligent act but an error in the reimbursement of all the compensatory interpretation of the relevant provisions; amounts wrongly paid, it formally such an error is understandable and abandons, so far as is appropriate, this consequently does not constitute head of its conclusions; on the other negligence. hand it states that the Tribunal d'instance of Lille has refused to order (b) The claim for the award of interest the French State to pay it interest on the on the compensatory amounts repaid to overdue payment of those sums. the applicant company is ancillary to the main claim. It constitutes an action for In the new state of the procedure the the recovery of undue payments which is applicant thus requests the Court foreign to the action for compensation (a) to rule that it is entitled for damage under Article 215 of the EEC — to the payment of interest Treaty; in the present state of calculated at a suitable rate on the Community law it is entirely a matter for compensatory amounts calculated the national courts. from the dates of each such wrongly-made payments; According to the applicant it is — to nominal damages in impossible seriously to dispute the compensation for the damage admissibility of the application. resulting from the effects on its activity of the unfair treatment it (a) The Court has found that the has suffered from the point of Commission wrongly interpreted the view of competition; Community regulations on monetary (b) to order the Commission to bear the compensatory amounts. It is therefore costs of the proceedings. guilty of a wrongful act or omission.

The applicant considers that the mistake The first argument appears debatable in of interpretation and consequently the the extreme. Nevertheless the applicant wrongful act or omission of the did not think that it should or could, for Commission, found by the judgment of that reason alone, lodge an appeal, the Court of 12 November 1974, especially since its rights to constitutes the sole cause of the damage compensation had been reserved. which it has suffered. The interpretation Moreover the line of argument adopted of the Commission was binding on the by the Tribunal d'instance of Lille in Member States which therefore cannot these two respects cannot simply be incur liability in operating the machinery transposed to the present case. of the monetary compensatory amounts. The award of interest calculated at an The Commission maintains that the error appropriate rate on the compensatory of interpretation which led to the amounts, to run from the dates on which improper charging of the compensatory each of those amounts was wrongly paid, amounts in no way arose in Regulation enables proper compensation to be made No 218/74; the error came about on the for the effect which the cash withdrawals application of the compensatory amounts had on the liquid assets of the applicant. fixed in this regulation in conjunction with the so-called 'levelling-off rule In its originating application the provided for in Article 4 a of Regulation applicant suggested that the Court No 974/71 of the Council. The liability should fix such interest at the discount for the error of interpretation thus rests rate of the Banque de France. This in the first instance with the national suggestion was subsequently adopted in authorities which are required to apply the law of 11 July 1975 Article 1 of the 'levelling off rule in granting or which provides that 'the rate of legal charging compensatory amounts. interest shall in all cases be fixed for the duration of the calendar year. For the 2. The nature of the damage year in question it shall be equal to the discount rate applied by the Banque de According to the applicant the damage France on 15 December of the foregoing for which, having regard to the year'. Article 3 of that law further judgments of the Tribunal d'instance of provides that when an order for payment

is made the rate of legal interest shall be Those benefiting from these sums could increased by five points upon the expiry have put them to extremely varied and of a period of two months from the day complex uses, whether they retained on which the judgment, if it were them solely for their own advantage or provisional, became enforceable. whether they passed on the benefit thereof in whole or in part to their The applicant is however prepared to customers by reducing the selling prices. leave the matter to the discretion of the In any case the compensatory amounts Court, should the Court prefer to adopt a helped to distort a free competitive method which it considers better. market of which the applicant holds a 45 % share. (b) It is scarcely possible without a certain arbitrariness to provide The Commission opposes the claims of information and statistical data with the applicant by submitting the regard to unfair treatment and its effects following considerations: on the activity of the applicant. The distortion of competition was all the (a) The claim for compensation for the more serious since the obligation to pay consequences of unfair treatment cannot compensatory amounts on exported be accepted. Damages, albeit nominal, products corresponded, so far as foreign are justified only to the extent that competitors selling in France was damage is proved. There is nothing in concerned, to the grant of compensatory the case-law of the Court to provide amounts on products imported into grounds for the conclusion that such France by those competitors. The damages may be awarded in the absence repayment to the applicant of the sums of proof expressed in figures. Although wrongly collected redresses more or less the applicant has lodged certain exactly the first aspect of the situation; statistical tables it has failed to adduce on the other hand foreign competitors even a shred of evidence to show that no doubt do not have to repay the damage has occurred and still subsists, far amounts wrongly granted to them which, less the existence of quantifiable damage. during the period complained of, allowed Furthermore it does not even maintain them to benefit from advantageous that such damages must be awarded by conditions vis-à-vis the applicant. virtue of principles common to the laws of the Member States.

the amounts are charged and granted by national law which excludes the payment the Member States the relationships of interest. This would lead to the deriving from them are constituted Community's paying interest instead and between those liable for payment and the in place of a Member State without being beneficiaries on the one hand and the able to claim repayment from that State. national authorities on the other. In the absence of Community provisions in this Furthermore it has been in no way sphere and provided that there is no proved that any provision or principle of infringement of the rights to which French law confers upon the applicant a Community law gives rise for the benefit right to the repayment of interest in of individuals, such relationships are addition to the repayment of sums necessarily governed, for the purpose of wrongly paid by it to the French filling the lacunae, by the provisions of authorities. Contrary to a generally national law. recognized principle the applicant claims compensation for damage which it could No provision of Community law governs the question of interest. In the present itself have avoided by appealing against the judgment of the Tribunal d'instance state of affairs the question whether there of Lille; accordingly its action must be exists a right to be awarded interest on dismissed on this ground too. sums wrongly paid and at what rate it is calculated thus comes under the 3. Causal connexion provisions of national law governing the relationships which arise between individuals and the national authorities In the view of the applicant the damage when those sums are granted or charged. which it alleges is a direct result of the mistaken interpretation by the In those circumstances it does not appear Commission of the provisions in that the solution sought by the applicant question. is acceptable. This solution consists in obtaining, through an application for On the other hand the Commission compensation, a benefit which is considers that it is in no way responsible governed by national proceedings in for the situation of which the applicant contentious matters of payment and complains and that it is thus impossible which is refused by Community law to to involve the liability of the Community the extent to which the latter defers to a through the action of the Commission.

4 In these proceedings the Tribunal submitted to the Court under Article 177 of the Treaty preliminary questions as to whether the application of compensatory amounts in respect of the export of amyloid products provided for by Regulation No 218/74 of the Commission was in accordance with Regulations Nos 974/71 and 509/73 of the Council.

5 In the judgment given on 12 November 1974 in reply to those questions (Société Roquette Frères v French State, Case 34/74 [1974] ECR 217) the Court found that for the relevant period the fixing of the compensatory amounts for the products in question by Regulation No 218/74 of the Commission was not in accordance with the provisions of the basic regulations of the Council.

6 Following that judgment the applicant obtained an order against the French State for reimbursement of the compensatory amounts in dispute, by virtue of a judgment of the Tribunal d'instance of 22 April 1975.

7 On the other hand in the same judgment the Tribunal d'instance ruled that the applicant was not entitled to interest at the legal rate on the sums reimbursed.

JUDGMENT OF 21. 5. 1976 — CASE 26/74

8 In view of this judgment the applicant amended its conclusions and now only claims from the Community:

12 In the absence of provisions of Community law on this point, it is currently for the national authorities, in the case of reimbursement of dues improperly collected, to settle all ancillary questions relating to such reimbursement, such as any payment of interest.

ROQUETTE v COMMISSION

13 The Tribunal d'instance thus had sole jurisdiction to decide whether interest should be awarded and in exercise of that jurisdiction it came to a decision on this point in its judgment of 22 April 1965 against which, moreover, no appeal was made.

14 In those circumstances the head of the claim relating to the award of interest on the sums improperly collected is inadmissible.

With regard to the compensation claimed on the ground of adverse affect on the conditions of competition

15 It is clear from the additional pleading lodged after the judgment delivered by the Tribunal d'instance that the reimbursement of the compensatory amounts improperly collected compensates to the applicant's satisfaction the damage which its own exports suffered.

21 Under the second paragraph of Article 215 the Community shall, in accordance with the general principles common to the laws of the Member States, make good 'any damage caused by its institutions'.

22 Even supposing that the fact that Regulation No 218/74 of the Commission is not in accordance with the basic regulations of the Council, as was found by the Court in its judgment of 12 November 1974, were capable of rendering the Community liable, it would still be the case that the applicant has failed to prove the damage which it claims to have suffered.

23 Although the Court expressly requested the applicant to supplement the particulars of its claim in this respect, the latter merely produced overall figures the interpretation of which is doubtful and it failed to prove any actual damage which it has specifically suffered in the course of its business or a causal connexion between this damage and the measures adopted by the Commission.

24 The fact that the applicant has reduced its claim to nominal damages does not relieve it of providing conclusive proof of the damage suffered.

25 Consequently this head of the claim must be dismissed.

Costs

1. Dismisses the application;

2. Orders the applicant to bear the costs.

Lecourt Kutscher O'Keeffe

Donner Mertens de Wilmars Pescatore Mackenzie Stuart

Delivered in open court in Luxembourg on 21 May 1976.

A. Van Houtte R. Lecourt