C-99/74

3. Action for damages — Admissibility — Injury caused by the Community — Allegation — Condition (EEC Treaty, Articles 178 and 215)

1. The action for damages provided for to an exporter under Community law in Articles 178 and 215 of the Treaty is not a matter involving the non­ was included as an independent form contractual liability of the Community. of action with a particular purpose to 3. For an action involving non­ fulfil within the system of legal contractual liability to lie it is remedies and subject to conditions on necessary that an injury arising from its use arising out of its specific aim. an act or omission of the Community 2. A refusal by a Community institution be capable of adversely affecting the to pay a debt owed by a Member State applicant be alleged.

In Case 99/74

SOCIÉTÉ DES GRANDS MOULINS DES ANTILLES, acting through its Chairman and Managing Director, represented by Jean-Denis Bredin, Advocate at the Cour de Paris, with an address for service in Luxembourg at the Chambers of Georges Margues, 20 rue Philippe II, applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, J. H. J. Bourgeois, acting as Agent, assisted by G. zur Hausen, a member of its

1 — Language of the Case: French.

Advocate-General: A. Trabucchi

Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts and the arguments advanced by With regard to maize, it is provided that the parties in the course of the written such a payment must necessarily be procedure may de summarized as made if certain conditions are fulfilled. follows: In Regulation No 1406/73 (OJ 1973, L 139, p. 30) the Council fixed the amount of such payments in respect of stocks I — Facts and procedure remaining at the end of the 1972/73 marketing year and certain conditions for 1. Article 9 (1) of Regulation No the grant thereof. 120/67/EEC of the Council of 13 June 1967 on the common organization of the In Regulation No 1554/73 (OJ L 156, market in cereals (OJ 1967, p. 2269) p. 13) the Commission laid down further provides that a carry-over payment may conditions for the grant of such be granted in respect of stocks of certain payments. Article 3 (1) of the latter cereals harvested in the Community regulation states that a carry-over remaining at the end of the marketing payment shall be granted by the year. competent authority of the Member State

in whose territory the stocks are situated; According to the second subparagraph of this authority is the intervention agency Article 227 (2) The conditions under or any other agency appointed by the which the other provisions of this Treaty Member State (Article 6 (4) of Regulation are to apply shall be determined, within No 1554/73). two years of the entry into force of this Treaty, by decisions of the Council, Article 16 (1) of Regulation No acting unanimously on a proposal from 120/67/EEC provides that the difference the Commission'. between quotations on the world market for products covered by the organization Under Article 40 (4) of the EEC Treaty, of the market and prices in the 'In order to enable the common Community may be covered by an organization referred to in paragraph (2) export refund to the extent necessary to to attain its objectives, one or more enable those products to be exported. agricultural guidance and guarantee funds may be set up'. Article 16 (2) provides that the refund, which is fixed by the Commission in The European Agricultural Guidance and accordance with the Management Guarantee Fund (EAGGF) was set up on Committee procedure, shall be the same the basis of Article 40 (4) of the EEC for the whole Community and that it Treaty by Regulation No 25 of the shall be granted on application by the Council of 4 April 1962 on the financing person concerned. of the common agricultural policy (OJ According to the first indent of Article 7 1962, L 30, p. 991). (1) of Regulation No 139/67/EEC of the

from the Community. Regulation No 729/70 of the Council of 21 April 1970 on the financing of the Regulation No 1041/67/EEC of the common agricultural policy (OJ 1970, Commission, on detailed rules for the L 94, p. 13). application of export refunds on products subject to a single price system (OJ L Carry-over payments for stocks are 314, p. 9) provides that the Member State available under the EAGGF [Article 2 (d) from whose territory the goods are of Regulation No 787/69 of the Council exported is empowered to pay the of 22 April 1969 on the financing of the

Republic. Pursuant to paragraph (2) total revenue from the agricultural levies thereof, with regard to the French shall be entered in the budget of the overseas departments, the general and Communities'. particular provisions of the Treaty relating to agriculture, save for Article 40 2. The applicant company is es (4), shall be applicable as soon as the tablished in Baie-Mahault (Guadeloupe), Treaty enters into force. an overseas department within the

meaning of Article 227 (2) of the EEC 4. On 27 August the applicant Treaty. company made a complaint through official channels, asking the Commission During the 1972/73 marketing year the to pay it the sum of FF 501 428·15, applicant company exported a certain which represents the total amount of the quantity of flour and bran to third refunds and carry-over payments for countries. For each export it requested stocks payable to it. and obtained an export certificate fixing in advance the amount of the export Following the implied rejection of this refund. complaint the applicant company, by an application lodged at the Court Registry on 19 December 1974, claimed Having regard to the tonnage of cereals remaining in stock at the end of the compensation under the second 1972/73 marketing year, the applicant paragraph of Article 215 of the EEC company considered that it was entitled Treaty. to the carry-over payment provided for Upon hearing the report of the in Article 9 of the abovementioned Judge-Rapporteur and the views of the Regulation No 120/67. Advocate-General the Court decided to open the oral procedure without any The refunds payable to the applicant preparatory inquiry. company for its exports under export certificates involving advance fixing amount to FF 222 975·97. The amount of II — Conclusions of the parties the carry-over payments for stocks is said to amount to FF 278 452·18. The applicant company claims that the Court should: 3. In various letters the applicant — order the European Economic company requested payment of those Community to pay it the sum of amounts from the Office National FF 501 428·15 together with interest Interprofessionnel des Céréales (National at the discount rate of the Banque de Cereal Trade Board), the competent France, payable from 27 August 1974, French body. the date of the lodging of its complaint through official channels The Board replied in a letter of 11 May constituting notice to the Com­ 1973 that it had 'taken the steps mission, until the day of actual necessary to initiate a specific procedure payment, and in addition to order it for the grant of refunds in respect of to bear the entire costs of the exports from the French overseas proceedings. departments since, under Article 227 of the EEC Treaty, the EAGGF cannot be The defendant contends that the Court should required to undertake payment of refunds for overseas departments'. — dismiss the application as inad­ missible or in any case as unfounded; By a letter of 5 August 1974 the Board — order the applicant to bear the costs. again replied to the applicant company that the problem of carry-over payments III — Summary of the for stocks, like that of the refunds, was submissions and arguments still being considered. The anomaly of the parties consists in refusing export refunds and carry-over payments to inhabitants of Admissibility overseas departments whilst levies in respect of imports and exports are 1. The Commission considers that since imposed'. these proceedings are in substance to be

the Community, which is a question of the relationships between the Member The classification of an action as an State and the Commission: cf. Joined application for damages does not depend Cases 178, 179 and 180/73, Belgium and on the fact that it could lead to an Luxembourg v Mertens ([1974] ECR outcome comparable to that of another 383); in so far as it is directed against action: Case 5/71, Aktien-Zuckerfabrik the Community the application is Schöppenstedt v Council ([1971] ECR consequently inadmissible. 975), Case 4/69, Lütticke v Commission ([1971] ECR 325), Case 153/73, Holtz v 3. In any event the application is Council and Commission ([1974] ECR inadmissible at this stage. The fact that 675) and Case 43/72, Merkur the Member States are competent to Außenhandels GmbH v Commission decide on the grant of refunds and ([1973] ECR 1055). carry-over payments means that it is for the national courts to rule as to whether The specific object of the application for the trader has a right to the amount in damages is to make good damage caused question. The Court cannot at this stage by an institution in the performance of give a ruling on an application for its duties. The action of the relevant compensation for any damage which institution must be illegal or constitute a may follow from the non-payment of the wrongful act (cf. the opinions of refunds: cf. the abovementioned Case Advocates-General Dutheillet de La­ 96/71, Haegeman v Commission. mothe the Compagnie and Mayras in d'Approvisionnement and Merkur The judgment in Case 43/72 — Merkur Außenhandels GmbH cases). Außenbandels GmbH ([1973] ECR 1055) is inapplicable. Since the applicant is claiming compensation for damage caused by the The present case relates to the question illegal and wrongful withholding of whether the applicant is entitled to various sums to which it was entitled, its compensation because of the application is admissible.

Commission is consequently guilty of a flagrant breach of duty the consequences Regulation No 25 merely sets out a more of which must be made good by the general principle inseparably connected Community. with the common market in agriculture and consequently applicable in all the territories to which the latter extends. In its reply the Commission admits, for the purposes of the case, that since the The existence of uniform prices and applicant fulfils all the conditions to more generally of a Community policy which the Community provisions subject involves the principle of Community the grant of export refunds and financing. carry-over payments for products in There is a clear correlation between stock, it is entitled to those amounts. Community financing of the costs of the common agricultural policy and the The principle of Community financing allocation to the Community of the cannot be directly deduced from the revenue arising from the said policy. The provisions of the Treaty on agriculture. reason for the allocation of the entire This principle was only established by resources arising from Community Regulation No 25, which was adopted in agricultural measures to the Community implementation of Article 40 (4) of is the transition to the stage of the single the Treaty. Since that article is not market. automatically applicable to the overseas departments the principle of Community The applicant consequently relies upon financing does not apply to them. the legal requirement to apply Community financing to the overseas Article 227 (2) of the Treaty has as its departments. By its refusal to finance precise object the exclusion, saving a the expenses arising from the application decision to the contrary, of Community to the overseas departments of financing for the agricultural policy for the arrangements of the common those regions. organization of the market in cereals the Community is infringing Community Consequently, the Community is not provisions. It is clear from the Merkur obliged to pay the corresponding sums to judgment that the present action may be the applicant or even to finance such brought directly before the Court of payment. Justice and that the Commission may not rely on the fact that payment of the Finally, the situation of which the refunds and aids in which the dispute applicant complains does not originate in originates fall within the competence of the Commission's refusal to pay it the the State. sums in dispute or even in the fact the Commission failed to extend Since the damage arises directly from Community financing to the transactions the Community's refusal to accept

'as compensation for the damage occasioned it by the illegal implied refusal of the Commission of the European Communities to pay the following sums:

1. The refunds payable to it in respect of exports of cereals from the French Overseas Department … to third countries;

2. The carry-over payment in respect of stocks remaining at the end of the 1972/73 marketing year: FF 278 452·18.'

2 The applicant company, which is established in one of the French Overseas Departments, requested a certain number of export certificates for cereals fixing in advance the amount of the export refund.

3 In addition, it maintains that it fulfilled all the conditions entitling it to the refunds fixed in advance under Article 16 of Regulation No 120/67 (OJ 1967, p. 2269) and the regulations in implementation thereof.

JUDGMENT OF 26. 11. 1975 —CASE 99/74

10 The Commission by implication rejected this claim and the applicant initiated the present proceedings under Article 215 of the EEC Treaty.

11 The Commission puts forward three objections of inadmissibility with regard to the application.

12 First, it maintains that the 'wrongful act' alleged by the applicant consists in the refusal of the Commission to make the payment, whilst recourse to an

GRANDS MOULINS v COMMISSION

action for damages implies that an injury distinct from the failure to pay is alleged.

13 Secondly, it contends that the application is misdirected since only the Member States, and not the Community, have authority to pay the sums in question.

expenses arising from the agricultural regulations for which the French Republic is liable in relation to the Overseas Departments which has led the competent French authorities to refuse the applicant the sums payable to it, and that such unlawful refusal on the part of the Commission involves the non-contractual liability of the Community.

JUDGMENT OF 26. 11. 1975 —CASE 99/74

20 The applicant again invokes the right to receive payment either from the Commission or from the French authority pursuant to Regulation No. 120/67 and the regulations adopted in implementation thereof.

21 Its application is in fact for payment by the Community instead of by the competent authority of the State in question of the sums which it claims are payable to it under Community law.

22 The provisions of Community law, especially Article 10 of Regulation No 1041/67 and Article 3 of Regulation No 1554/73, leave no doubt that payment or refusal of payment are measures appropriate to the national authorities.

23 It is thus for the national courts having jurisdiction in the matter to give a ruling on the legality of such measures, in pursuance of Community law, within the forms laid down by national law, following recourse, where necessary, to Article 177 of the Treaty.

GRANDS MOULINS v COMMISSION

On those grounds,

THE COURT

hereby:

1. Dismisses the application as inadmissible.

2. Orders the applicant to bear the costs.

Mr President, Regulation No 139/67 of the Council Members of the Court, and in Regulation No 1041/67 of the Commission, which lay down detailed The applicant undertaking, which has its rules for the application of these refunds. head office in a French overseas Article 10 of the latter regulation lays department, exported cereals to third down that the refund shall be paid by countries during the 1972/73 marketing the Member State in whose territory the year; in respect of these transactions it customs export formalities were had previously obtained from the concluded. By virtue of Article 227 (2) of competent French body, the Office the EEC Treaty, Community rules on national interprofessionnel des céréales agriculture were applicable to the French (ONIC) the export certificates which overseas departments as soon as the entitled it to advance fixing of the Treaty entered into force with the sole, refunds provided for in Article 7 (1) of express exception of Article 40 (4), which

1 — Translated from the Italian.