C-241/78

S.P.R.L. MASÉLIS Frères , Roeselare (Belgium) (Case 246/78),

Codrico B.V., Rotterdam (Netherlands) (Case 247/78),

Hansa-Lagerhaus Ströh , Hamburg (Federal Republic of Germany) (Case 248/78),

B.V. Meelfabriek "WEERT" V/H Gebr. van de Venne , Weert (Netherlands) (Case 249/78),

Contifex Getreideprodukte GMBH & Co. KG, Oldenburg (Federal Republic of Germany) (Case 250/78),

represented by the Advocates of the Chambers of Fritz Modest and Others, Hamburg, with an address for service in Luxembourg at the Chambers of J. Hansen-Housse, 21 Rue Aldringen, applicants, v

composed of: H. Kutscher, President, J. Mertens de Wilmars and Lord Mackenzie Stuart (Presidents of Chambers), P. Pescatore, M. Sørensen, A. O'Keeffe, G. Bosco, A. Touffait, T. Koopmans, Judges,

Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the National Interprofessionnel des Céréales procedure, the conclusions and the [1977] ECR 1795, the Court decided submissions and arguments of the parties that: may be summarized as follows.

with Regulation (EEC) No Rules for the application of those 1955/75 of the Council of 22 July provisions were laid down by 1975 and the subsequent regu­ Commission Regulation No 1570/78 of lations which replaced it, are 4 July 1978 laying down detailed rules incompatible with the principle of for the application of Regulation No equality in so far as they provide 2742/75 as regards production refunds for a difference of treatment in on starches and repealing Regulation No respect of production refunds 2026/75 (Official Journal L 185 of between maize groats and meal for 7 July 1978, p. 22). the brewing industry and maize starch. Article 4 of Regulation No 1570/78 provides as follows: (2) It is for the institutions competent in matters of common agricultural "For maize processed into groats and policy to adopt the measures meal, broken rice produced in or necessary to correct this imported into the Community, and incompatibility." wheat or maize processed into quellmehl, between 19 October 1977 and the date of entry into force of this regulation, and used respectively in brewing or baking, 2. By Regulations No 1125/78 of the production refund shall be paid 22 May 1978, amending Regulation provided the applicant furnishes proof No 2727/75 on the common organi­ that the maize, wheat or rice has been zation of the market in cereals (Official processed during such period and Journal L 142 of 30 May 1978, p. 21) attaches to the application for the refund and No 1127/78 of 22 May 1978, proof of sale to a brewery or bakery of amending Regulation No 2742/75, on the maize groats and meal, broken rice production refunds in the cereals and or quellmehl, giving the details regarding rice sectors (Official Journal L 142 of 30 quantity and destination required in May 1978, p. 24) the Council re­ Article 3 (4)." introduced until the end of the 1978/79 marketing year a scheme of production refunds for the maize used for the manu­ facture of groats and meal (hereinafter 3. The applicants manufacture maize referred to as "gritz") intended for the groats and meal which they sell to the brewing industry. The main features of brewing industry and which are used in those regulations are: the brewing of beer.

5. By an order of 22 November 1978 — In the alternative, authorize and the Court decided to join the present compel the Federal Republic of cases for the purpose of the written and Germany (Cases 241, 242, 248 and oral procedure. 250), the Kingdom of Belgium (Cases 245 and 246), and the Kingdom of the Netherlands (Cases 247 and 249) to pay them by way of damages 6. After hearing the report of the owed by the Community and for its account, a production refund for the Judge-Rapporteur and the views of the Advocate General, the Court decided to quantities of maize which they open the oral procedure without any processed into groats and meal between 1 August 1975 and 18 preparatory inquiry. However, the Court October 1977 (Cases 241, 242, 246, asked the parties to reply to certain 247, 249 and 250), between February questions. 1976 and 18 October 1977 (Case 245), and between August 1975 and December 1975 (Case 248), and which they subsequently sold to breweries, the said damages to be calculated by reference to the conversion factor of 1.8 tonnes of II — Conclusions of the parties maize to 1 tonne of groats or meal, at the same rate as the production refund which was fixed and paid for the processing of maize into starch A — The applicants claim that the during the corresponding period plus Court should: interest at 6% from the aforesaid dates;

— Order the defendant to pay them the sums of — Order the defendant to pay the costs. DM 9 425 280.50 (Case 241) DM 1 909 488.82 (Case 242) Bfr 45 990 977 (Case 245) B — The Council and the Commission Bfr 27 564 886 (Case 246) claim that the Court should: Hfl 2 551 531.63 (Case 247) DM 188 685.60 (Case 248) Hfl 1 791 901.03 (Case 249) — Dismiss the applications as DM 311 836.93 (Case 250) inadmissible;

— In the alternative, dismiss them as to obtain damages by means of a unfounded; "restitution in kind". In its view, the laws of most of the Member States on actions for damages against public auth­ — Order the applicants to pay the costs. orities do not allow such a procedure. In any case, the claim is inadmissible, according to the Commission, for still other reasons: if it means that the applicants are thus seeking to obtain the III — Submissions and arguments adoption of certain regulations, it is of the parties inadmissible under paragraphs (1) and (3) of Article 175 of the Treaty, since it is not a question of acts addressed to the applicants; an action which is A — Admissibility inadmissible under Article 175 cannot become admissible by using Article 215. 1. The Council points out that under the relevant regulations the national If the claim seeks the adoption of a authorities are responsible for the decision benefiting the applicants in payment of production refunds. There­ particular, it is likewise inadmissible fore the applicants should have sought under the third paragraph of Article 175 payment of the refunds from the national of the Treaty, since it is seeking a authorities. Consequently, the Council decision addressed not to the applicants considers that the applicants' claims for but to the Federal Republic of Germany, damages are inadmissible. In this regard, the Kingdom of Belgium and the it cites the judgment of the Court of 26 November 1975 in Case 99/74 Société Kingdom of the Netherlands. des Grands Moulins des Antilles v Commission [1975] ECR 1531. 3. The applicants reply that their principal claim does not seek to obtain 2. The Commission observes, with the adoption of a regulation: they merely regard to the applicants' principal claim, seek to enforce an individual right to that they could not secure the adoption compensation for an infringement of the of regulations entitling them to the principle of equality lying in the failure payment of the refunds requested by of the institutions of the Community to bringing an action under Articles 173 adopt such a regulation in the first place. and 175 of the Treaty, which, in their The issue of the applicants' entitlement view, argues against the admissibility of to such compensation is a question an action for damages with the same affecting the substance and not the object. admissibility of the claim.

in the oral procedure, since the Council B — Substance and Commission have not joined issue with them on that point. 1. The applicants claim that by adopting Article 4 of Regulation No 1570/78, the organs of the Community limited their discretionary power regarding the manner of eliminating, and retroactively, 4. The Council points out in its the discrimination against gritz. In their rejoinder that the applicants have opinion, the principle of equality requires brought proceedings against the that the discrimination during the period Community in order to obtain a payment from 1 August 1975 to 19 October 1977 to which, under the legislation be eliminated in the same way. applicable, they are not entitled. Consequently, the Council asks whether the applications are not in reality meant to secure the adoption of a regulation. It Article 4 of Regulation No 1570/78 adds that if that is the case these actions therefore infringes the principle of are no different from an action, for equality inasmuch as it does not make annulment and in reality seek by means provision for payment of the production of a claim for payment to obtain the refund for gritz in respect of that period. restoration by the Council of a right to refunds for a particular period. Doubting whether such an action is in accordance The applicants conclude that to that with the decision of the Court in Case extent the organs of the Community are 43/72 Merkur v Commission [1973] ECR obliged to make good the damage caused. 1055, judgment of 24 October 1973, the Council concludes that the actions are inadmissible. The applicants add that, in order to remain competitive against maize starch and wheat starch, they did not increase Finally, the Council asks whether in this their selling prices as a result of the case the Court could not treat such a abolition of the production refund. claim as an action for a failure to act brought by an individual in order to compel it to adopt a general measure. Finally, they state that in order to relieve Once again, such a claim is inadmissible the Court of preparatory inquiries and to according to the settled case-law of the accelerate the procedure, they submitted Court. their alternative claim, which allows the question of principle to be dealt with alone without inquiries, namely the question whether the Community is required to grant the production refund for maize intended for the manufacture 5. In its rejoinder, the Commission of gritz for use in brewing also in respect examines the criteria governing the of the period prior to 19 October 1977. admissibility and the substance of the applications in the same context. The Commission's observations on that question are summarized under heading 2. The Council explains that the starch III, B. sector represents a heavy financial

In this regard the Council points out that the use of gritz or any other raw grain in After explaining the measures taken by the brewing of beer is prohibited in the the Community institutions in May 1978, Federal Republic of Germany, except for the Council concludes that it fully beer intended for export. complied with the requirements laid down by the Court. It notes, moreover, that the Court had indicated that there None the less, the German gritz market existed other legislative solutions by is flourishing. In fact, it is argued, which the incompatibility established German exports of gritz have increased could be remedied. Thus it could have rather impressively since 1974: 135 923 abolished all the refunds either for starch tonnes in 1974, 141 754 tonnes in 1975, products used by the brewing industry or 175 437 tones in 1976 and 191 296 for all starch products; by the same tonnes in 1977. token, it could have reduced the amount of the refunds.

The Council also points out that the German undertakings tend to be large The Council considers that it chose the and sound, well-structured, practising a solution most favourable to the very flexible commercial policy; they do producers concerned. It stresses that in not depend solely on the production of its judgment the Court did not require gritz: they are all well situated geo­ the Community to take measures of a graphically, along the Rhine or on the retroactive nature. It observes further Main, which enables them to reach that the Commission's proposals did not numerous regions at modest transport envisage any retroactivity. Consequently, costs. The Council adds that all the

Exports of gritz to all countries 3. The Commission points out that the Netherlands Belgium/Luxembourg applicants are not claiming compensation for damage suffered, but that they are requesting the payment of production 1974 6 760 t 14 598 t refunds. It recalls that according to the 1975 7 806 t 8 016 t judgment of the Court of 15 June 1976 in Case 74/74 CNTA v Commission 1976 17 166 t 21 995 t [1976] ECR 797, it is not the unpaid 1977 16835t 28 141 t benefits which must be regarded as damage for which compensation may be recovered by means of an action for damages, but only the material losses suffered as a result of the non-payment According to the Council, those figures of the benefits. That is in accordance prove that for the Netherlands and the with the concept of damage in the form Belgo-Luxembourg gritz markets the in which it exists in most of the national abolition did not cause a slump or any legal systems. real commercial difficulty.

Commission, it is particularly surprising starch producers could not be abolished that that applicant was able to develop its retroactively; that is why, if the Court undertaking from one marketing year to shared the applicants' point of view, it the next without the benefit of any could easily have said, with regard to the subsidy. The Commission goes on to period elapsed, that the manufacturers state that, as regards the other were entitled to the same refund as that applicants, those in Cases 247, 249 and granted for starch; the Court declared 250/78 were able, during the period that there were several courses of action when they did not benefit from any for making good "any damage sustained refund, to increase their sales of gritz by those concerned". Thus it was for the considerably from one marketing year to institutions of the Community to make a the next. In the case of the applicant in choice between those possible courses of Case 242/78, sales had more than action. doubled in relation to the previous year.

JUDGMENT OF 4. IC. 1979 — JOINED CASES 241. 242 AND 245 TO 250/78

of the limits imposed upon the exercise Community institutions manifestly and of its power: the abolition of the refunds seriously exceeded the limits placed upon was the consequence of considerations of their powers: they knew that gritz and a practical nature and was in no way starch are interchangeable and that they arbitrary. compete with each other.

The applicants further submit that a Further, after the Court's judgment of comparison could be made between the 19 October 1977, there cannot in the facts of these cases and those of Case Commission's view be any question of a 74/74 CNTA, which concerned the serious and manifest abuse of power on abolition of monetary compensatory its part: there are important con­ amounts, only if the institutions had siderations of principle which go against suddenly abolished the production a right to the retroactive granting of refund both for gritz and for starch. refunds; besides, the judgment of the Since it is a question in these cases not of Court does not impose any obligation the infringement of the principle of the

DGV v COUNCIL AND COMMISSION

purpose. The applicants add that since the extent of the damage suffered The applicants further deny that the depends on the conduct of the manufac claim for damages for an amount turers during that period, the Court was equivalent to the refunds abolished not in a position to ascertain the amount depends on whether they were able to of the damage. pass on the increase in their costs caused by that abolition. They draw that conclusion from the general concept of The applicants further state in reply that damage: damage which it is intended to during the period in question they were make good by means of an action for able to pass on to the buyers the damages is equal to the difference increases in the cost of raw materials, between the material situation in which brought about by the increase in the the person injured would be if the act threshold prices for maize, since the causing the damage had not taken place manufacturers of starch who continued and the situation which arose as a direct to receive the production refund had to consequence of that act. bear the same costs in that respect and were obliged to pass them on to the buyers of their products.

The occurrence, the cost price for the dealer applicants go on to state that according increases and he is not able to pass the to the German case-law only circum-

The applicants in Cases 241, 242, 246, 247 and 249 further state in their replies that the Commission is mistaken in so far The applicant in Case 248/78 explains as it concludes from the fact that they that it mills maize and manufactures maintained or even increased their sales gritz for the Deutsche Conti Handels­ of gritz to the breweries that the abolition of the refund did not cause gesellschaft mbH, Hamburg. Following the abolition of the refund, the applicant them any damage. and Deutsche Conti continued with that production in October and November 1975, but terminated it at the end of 1975. In order to be able to continue production after the abolition of the refund, the applicant was forced to allow The applicants add that even if their Deutsche Conti unusual conditions as turnovers show increases, these are due regards the price for milling. As a result above all to the fact that they had to of the abolition of the production refund ensure that the breweries did not switch Deutsche Conti also suffered damage in to the use of starch and thus had to respect of the gritz delivered to attempt to make up for any lost sales breweries in October and November from that quarter, even if they incurred 1975. Deutsche Conti assigned to the losses as a result. applicant the part of the amount of that

DGV v COUNCIL AND COMMISSION

damage which, along with the direct the abolition of the production refund at damage suffered by the applicant, is the all in their selling prices to the breweries subject of the present dispute. and that, moreover, they were not able to do so.

JUDGMENT OF 4. 10. 1979 — JOINED CASES 241, 242 AND 245 TO 250/78

in particular the French and Belgian As regards the question whether the brewers, did not in any way alter their applicants have produced sufficient proof traditional use of gritz for the brewing of of significant damage, the Council beer, even after the abolition of the observes in the first place that the failure refund. of the German producers to pass on the loss from the refund in their selling prices cannot in any way be blamed on The Council observes further that the measures taken in 1975 by the following the abolition of the refund the institutions of the Community. In fact, production and consumption of gritz in the Council questions whether, in view the brewing industry in the Community of the technical and historical monopoly did not fall. In this regard, it refers to its of gritz, the brewers would have turned observations in Joint Cases 64 and to starch if those producers had 113/76, 167 and 239/78, 27, 28 and increased their prices. 45/79.

The Council points out secondly at it is wrong to claim that the infringament The Council notes that all the applicants, except in Case 246/78, increased their of the principle of equality which the Court established did not entail any legal production of gritz between the 1975/ consequences: in fact, the institutions of 1976 marketing year and the 1976/1977 marketing year: the Community have had to adopt the measures necessary to restore equality for the future.

Production Production Case in 1975/1976 in 1967/1977 marketing year marketing year The payment of damages for the illegal act committed is, in the opinion of the 241/78 53 073.000 t 56 282.000 1 Council, quite a different matter. Citing 242/78 6 709.028 t 13 298.815 t the judgment of the Court of 25 May 245/78 8 664.290 t 26 749.350 t 1978 in Joined Cases 83 and 94/76, 4, 15 and 40/77, HNL, the Council points 246/78 11 941.070 t 11 496.619 t out that the general rules of law on civil 247/78 13 775.182 t 16 351.169 t liability cannot be applied in this context. 249/78 8 265.295 t 11 793.064 t In this regard, therefore, it cannot regard the reference made by the German 250/78 1 047.514 t .2 731.191 t applicants to German law as relevant.

the financial situation directly caused by detailed rules relating to the re-intro that act. duction of the production refund for gritz: after the adoption of the mandatory provision contained in Article 6 of Council Regulation No 1127/78, 6. The Commission points out in its the Commission no longer had any rejoinder that if the applicants' argument discretion in the matter; but that does to the effect that they are entitled to not prevent it from considering that the receive a production refund for gritz for reasons put forward by the Council are the period from 1 August 1975 to 18 entirely apt to justify different schemes October 1977 by virtue of the principle according as periods prior to or sub of equality is correct in these cases, it sequent to the delivery of the judgment follows that they are not entitled to of the Court of 19 October 1977 are damages, because they are still in a involved. position to bring proceedings directly for the enforcement of their claim.

it was already obvious at the time that it was not possible to require the manufac turers of starch to repay the amounts received in refunds. None the less the In the opinion of the Commission, the considerations discussed with regard to fact that the Court did not require the the threshold price of maize do not seem Council or the Commission to grant the relevant, as the manufacturers of starch refunds retroactively but expressly were affected by that price just as much mentioned in this regard the possibility as the manufacturers of gritz. of making good contingent losses must, in the opinion of the Commission, have been of some importance. The reason for Finally, the gross receipts calculated by allowing compensation to be paid only the applicant for the marketing years for contingent losses is essentially, in its 1973/1974 to 1976/1977 show, opinion, the fact that granting the according to the Commission, that it refunds ex post facto no longer permits carried out its calculations on the basis attainment of the objective in pursuance of incomplete figures: as the information of which they were established, namely supplied shows a minus figure for each encouraging the sale of certain products year, the applicant must always have sold during a certain period. the gritz which it manufactured at a loss; that is not the case, since the applicant states that the sales of secondary The Commission observes further that it products enabled it to record a profit per is not fair to say, as the applicants do, tonne of maize.

JUDGMENT OF 4. 10. 1979 — JOINED CASES 241, 242 AND 245 TO 250/78

products. In its view, if that factor is state of the gritz market contained in the taken into consideration it becomes Council's rejoinder and in particular on apparent that the applicant could still be the consumption of gritz and starch in assured of a profit from the processing the brewing industry, given for the of maize for the purpose of the manu different regions of France. facture of gritz after the abolition of the refunds. In reply to that question the applicants stated that the figures for exports given by the Council are not very relevant, in Finally, the Commission points out that the first place because they relate to the refunds have hitherto been granted maize gritz in general and not only to uniformly for the manufacture of certain gritz intended for the brewing industry, products, but that does not mean that a and secondly because they include particular product would cease to be exports to non-member countries. competitive if the refund were no longer

1 August 1975, they then specialized in the production of gritz intended for other uses or for export to non-member All the considerations which have just countries; that is why the figures for the been discussed prove, in the opinion of production of brewing gritz for 1975/ the Commission, that the applicants' 1976 are lower than they would have dependence on the breweries was less been normally. strong than they have maintained and that it was perfectly possible, at least partially, to compensate for the abolition With regard to the figures given in the of the refunds by means of price Council's pleadings on the total increases. consumption of maize gritz in France

Decision

1 The applicants in these cases request that the European Economic Community, represented by the Council, be ordered, pursuant to the second paragraph of Article 215 of the EEC Treaty, to compensate them for the loss

JUDGMENT OF 4. 10. 1979 — JOINED CASES 241, 242 AND 245 TO 250/78

which they claim to have suffered on account of the abolition of the production refunds for maize groats and meal ("gritz") intended for the brewing of beer as a result of Regulation No 665/75 of the Council of 4 March 1975 amending Regulation No 120/67 on the common organi­ zation of the market in cereals (Official Journal 1975 L 72 of 20 March 1975, p. 14).

2 The cases were joined for the purpose of the procedure and it is appropriate to maintain the joinder for the purpose of the judgment.

3 In its judgment of 19 October 1977, delivered pursuant to references for preliminary rulings from two French administrative courts in Joined Cases 124/76 and 20/77 S.A. Moulins et Huileries de Pont-à-Mousson and Société Cooperative "Providence Agricole de la Champagne" v Office National Inter- professionnel des Céréales [1977] ECR 1795, the Court ruled that the disputed provisions of the Council regulations were incompatible with the principle of equality in so far as they provided for maize groats and meal for the brewing industry and maize starch to receive different treatment in respect of production refunds. The Court said further that it was for the institutions competent in matters of common agricultural policy to adopt the measures necessary to correct that incompatibility.

6 The Council and the Commission, the defendants, object that in order to obtain the refunds claimed the applicants should have brought an action for payment of the refunds against the competent national bodies in the national administrative courts. However, that objection cannot be upheld. Although it is true that an action for the payment of amounts due under Community regulations may not be brought under Article 178 and the second paragraph of Article 215 of the EEC Treaty, the claims submitted by the applicants in this case cannot be classed as claims for the payment of amounts due, but rather as claims for compensation for the alleged damage resulting from the unlawfulness established by the judgment of the Court of 19 October 1977. Moreover, according to the applicants, that damage is not measured solely by reference to the unpaid refunds. Besides, in the circumstances of the case it is clear that, pursuant to the said judgment of the Court, a national court could not have upheld such an action in the absence of any provisions of Community law authorizing the national bodies to pay the amounts claimed.

7 The same considerations apply to the Commission's objection that the real object of the applications, namely the payment of the refunds not granted, may be achieved only by the adoption of a new regulation and that, since the applicants may not pursue such an objective by means of the actions provided for in Articles 173 and 175 of the EEC Treaty, they are equally unable to do so by means of the action for damages under Article 178 and the second paragraph of Article 215. In fact, as the Court has declared on repeated occasions, the latter action was set up as an independent remedy. Thus the claims submitted by the applicants must be considered by way of such an action and may be upheld, if they are well founded, without its being necessary for the defendants to adopt new legislative measures.

9 The finding that a legal situation resulting from the legislative measures of the Community is unlawful is not sufficient in itself to give rise to such liability. The Court has already expressed that view in its judgment of 25 May 1978 in Joined Cases 83/76 and others Bayerische HNL Vermeh­ mngsbetriebe and Others v Council and Commission [1978] ECR 1209. In this regard, the Court recalled its settled case-law, according to which the Community does not incur liability on account of a legislative measure which involves choices of economic policy unless a sufficiently serious breach of a superior rule of law for the protection of the individual has occurred. Taking into consideration the principles in the legal systems of the Member States governing the liability of public authorities for damage caused to individuals by legislative measures, the Court said that in the context of Community provisions in which one of the chief features was the exercise of a wide discretion essential for the implementation of the Common Agricultural Policy, the Community did not incur liability unless the institution concerned manifestly and gravely disregarded the limits on the exercise of its powers.

10 In the circumstances of these cases, the Court is led to the conclusion that there was on the pan of the Council such a grave and manifest disregard of the limits on the exercise of its discretionary powers in matters of the Common Agricultural Policy. In this regard the Court notes the following findings in particular.

11 In the first place it is necessary to take into consideration that the principle of equality, embodied in particular in the second subparagraph of Article 40 (3) of the EEC Treaty, which prohibits any discrimination in the common organization of the agricultural markets, occupies a particularly important place among the rules of Community law intended to protect the interests of

15 The Council and the Commission objected to that method of calculating the damage on the ground that the gritz producers eliminated, or could have eliminated, the damage by passing on the loss resulting from the abolition of the refunds in their selling prices. In principle, in the context of an action for damages, such an objection may not be dismissed as unfounded. In fact, it

JUDGMENT OF 4. 10. 1979 — JOINED CASES 241, 242 AND 245 TO 250/78

must be admitted that if the loss from the abolition of the refunds has actually been passed on in the prices the damage may not be measured by reference to the refunds not paid. In that case the price increase would take the place of the refunds, thus compensating the producer.

16 For their part, the applicants dispute that the loss was passed on in the way alleged. They state that, faced with the competition from the starch producers benefiting from refunds, they chose, as a matter of commercial policy, to sell gritz at a loss in order to retain their markets, rather than raise the prices at the risk of losing those markets. The price increases referred to by the Council and the Commission are, in the applicants' submission, due to the rise in the threshold price of maize and to the increase in production costs.

17 The parties have put forward statistics and other data in support of their respective submissions. Those data do not permit the conclusion advanced by the Council and the Commission to be accepted. The conclusion which emerges is rather that during the period in dispute the prices for gritz charged by the applicants and the price of starch developed along similar lines without reflecting the absence of refunds for gritz.

20 The other applicants submitted a number of documents to the Court as proof of the quantities of gritz for which they claim to be entitled to compensation and of the amounts of the refunds not paid respect of those quantities. However, the Court is not in a position at this stage of the procedure to give a decision on the accuracy of those data. Therefore, it is necessary to lay down by interlocutory judgment the criteria whereby the Court considers that the applicants must be compensated, leaving the amount of the compensation to be determined either by agreement between the parties or by the Court in the absence of such agreement.

The claim for interest

21 The applicants further claim that the Community should be ordered to pay interest at a rate of 6 % from dates which are slightly earlier than the dates on which the actions were brought, it being alleged that the Community's liability for the unpaid refunds arose at those earlier dates.

22 As it is a question of a claim made in relation to the non-contractual liability of the Community, pursuant to the second paragraph of Article 215, it must be considered in the light of the principles common to the legal systems of the Member States, to which that provision refers. It follows that a claim for interest is in general admissible. Taking into account the criteria for the assessment of damages laid down by the Court, the obligation to pay interest arises on the date of this judgment, in that it establishes the obligation to make good the damage. The rate of interest which it is proper to apply is 6 %.

B. As an interlocutory decision, hereby:

1. Orders the European Economic Community to pay to

1) DGV, Deutsche Getreideverwertung und Rheinische Kraft­ futterwerke GmbH, Frankfurt am Main,

2) Werhahn Hansamühle, Neuss am Rhein,

3) S.P.R.L. Maselis Frères, Roeselare,

4) Codrico B.V., Rotterdam,

3. Orders the parties to inform the Court within twelve months from the delivery of this judgment of the amounts of compensation arrived at by agreement;

4. Orders that in the absence of agreement the parties shall transmit to the Court within the same period a statement of their views, with supporting figures;

5. Reserves the costs.

Kutscher Mertens de Wilmars Mackenzie Stuart Pescatore Sørensen

O'Keeffe Bosco Touffait Koopmans

Delivered in open court in Luxembourg on 4 October 1979.