C-12/79

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

THE COURT

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

Advocate General : J.-P. Warner Registrar: J. Pompe, Deputy Registrar

gives the following

WAGNER COMMISSION

Article 19 of Regulation No 3330/74 allows for the difference in prices on the (a) The regulations applicable world market and within the Community to be covered by an export refund. Article 4 of Regulation (EEC) No (aa) The system applying to the export 766/68 of the Council of 18 June 1968 of sugar laying down general rules for granting export refunds on sugar (Official Journal, English Special Edition 1968 (I) Article 12 of Regulation No 3330/74 of p. 155) provides that the refunds may be the Council of 19 December 1974 on the fixed by tender. By Regulation (EEC) common organization of the market in No 2101/75 of 11 August 1975 (Official sugar (Official Journal No L 359, p. 1, Journal No L 214, p. 5) the Commission repealing Regulation No 1009/67/EEC made provision for a standing invitation of the Council of 18 December 1967, to tender, which was to remain open Official Journal, English Special Edition until a date to be determined sub-

1967, p. 304), makes all imports into or sequently, to determine an export levy exports out of the Community of the and/or export refund on white sugar, products in question conditional upon and, during the period of validity of the the submission of an import or export standing invitation, for weekly partial licence. The issue of a licence is invitations to tender. Tenders were made

conditional on the lodging of a deposit in accordance with the provisions of guaranteeing that importation or expor- Regulation No 766/68 of the Council tation will be effected during the period and of Regulation No 2101/75 of the of validity of the licence and the deposit Commission.

the unit of account and the exchange rates to be applied for the purposes (bb) The system applicable to changes in of the Common Agricultural Policy the exchange rate (Official Journal, English Special Edition 1959-1962, p. 274), which allows dero- Article 4(1) of Regulation (EEC) No gations from the principle of the use of 1134/68 of the Council of 30 July 1968 parities for converting one currency into (Official Journal, English Special Edition another, the Council, on 27 February 1968 (II), p. 396) provides: 1975, adopted Regulation No 475/75 on "In the case of an alteration of the the exchange rates to be applied in agri- relationship between the parity of the culture. Article 6 of that regulation currency of a Member State and the provided that the provisions of Regu- value of the unit of account, the Member lation No 1134/68 in respect of an State concerned, using the new parity alteration of the relationship between the relationship and without prejudice to the parity of the currency of a Member State and the value of the unit of account application of Article 1(2), shall adjust the following amounts, given in units of should apply (see above). account, if they appear in national currency in the documents or certificates issued in pursuance of the Common On 15 March 1976 the Council adopted Agricultural Policy or the special trade Regulation No 557/76 (Official Journal systems for goods processed from agri- No L 67, p. 1) repealing Regulation No cultural products: 475/75 and fixing new exchange rates to be applied in agriculture. Article 5(1) of (a) amounts which have been fixed in this regulation also provided that the advance for a transaction or part of a provisions of Regulation No 1134/68 transaction still to be carried out should apply but paragraph (2) after alteration of that parity introduced the following restriction: relationship;

of the last subparagraph of Article 4(1) concerned this compensation shall be of Regulation No 1134/68 shall apply to as shown in the annex.

products and Member States concerned with effect from the dates set out in (2) In respect of the export licences Article 2(2) of Regulation No 557/76 (as referred to in paragraph (1), the regards sugar: the beginning of the right to cancel under the last sub- 1976/1977 marketing year, that is to say, paragraph of Article 4(1) of Regu- 1 July 1976). The said provisions apply lation (EEC) No 1134/68 may not only to advance fixing and to the be exercised. relevant documents or certificates issued before 15 March 1976 (Article 2(2) of Article 2 Regulation No 571/76).

This regulation shall enter into force on On the ground that if the right of can- 1 July 1976." cellation "were widely exercised, it could in certain cases seriously hinder good Community administration of a given (b) The matter in dispute agricultural market" and that "provision should therefore be made for it to be

replaced by the right to compensation In accordance with Regulation No 2101/75 the Bundesanstalt für Land- for the disadvantage suffered", the wirtschaftliche Marktordnung [Federal Council adopted on 22 June 1976 Regu- lation No 1451/76 (Official Journal No Office for the Organization of Agri- cultural Markets], hereinafter referred to L 163, p. 5). That regulation added the as "the Federal Office", which was following subparagraph to Article 5(2) of formerly the Einfuhr- und Vorratsstelle Regulation No 557/76 (see above): für Zucker und Rohtabak, delivered to Hans-Otto Wagner Agrarhandel KG "Provision may be made for this disad- (hereinafter referred to as "Wagner") a vantage to be compensated for by a statement of award of tender on the

By letter dated 1 July 1976, received at — Order the defendant to pay the costs. the Federal Office on the same day, Wagner asked for cancellation of the The defendant contends that the Court export licence and release of the security should: of DM 107 362 which it had lodged. — Dismiss the application ás inadmissible; By decision dated 5 July 1976 the Federal Office, referring to Regulation — Alternatively, dismiss the application No 1579/76, rejected the application. as unfounded; The Federal Office had already notified the decision to Wagner by telephone on — Order the applicant to pay the costs. 2 July 1976.

III — Submissions and argu- Wagner thereupon used the export ments of the parties licence, but states that the transaction caused it considerable losses. Admissibility ofthe application

Wagner took the view that Regulation The applicant claims that it did not take No 1579/76 could not apply to proceedings against the decision by the applications for cancellation of licences Federal Office dated 5 July 1976 for it

WAGNER COMMISSION

would have had to expect lengthy The defendant refers to the case-law of

The defendant considers that the application is inadmissible. The applicant had two choices. On the one hand at the risk of forfeiting its security it could have brought an action The applicant ought to have brought against the decision by the Federal proceedings against the decision by the Office. On the other hand it could have Federal Office dated 5 July 1976 before the national authorities and courts. used the licence, together with the various advantages, that is to say it would have received the general monetary compensation and the special It is clear that when on 1 July 1976 the compensation for the disadvantage it had applicant lodged its application for can- suffered. cellation of the licence it did not yet know that the publication of the Official Journal in Luxembourg had been delayed by one day. That fact was revealed during the course of the The applicant preferred the latter alter- proceedings. Either the Federal Office native. It was perfectly at liberty to take would then simply have granted the such a decision, but it had then to abide application or else the application would by it and suffer the consequences. The have led to a request for a preliminary applicant could not claim to hold the ruling under Article 177 of the EEC Commission liable for a disadvantage Treaty; at the latest when the Court of amounting to damage for the fact that it Justice had given judgment the question had not brought an action before the would have been settled as in Case national courts which had jurisdiction. 88/76 1 and the applicant would have obtained full satisfaction, that is to say it would have not had to use its export licence and its security would have been released. Further, it is the general administrative practice of the Federal Office that pending proceedings there is no forfeiture of the security. To this extent I — Case 88/76 Société pour l'Exportation des Sucres S. A. Commission [1977] ECR 709. therefore the applicant ran no risk.

influenced by conduct on the part of the Commission, is not authority to the contrary effect. Finally, the applicant has received no advantage in relation to other exporters. It has simply suffered losses for which it seeks compensation. The advantages It is not possible to require the applicant from cancelling the licence would have to bring proceedings before the national been greater. Instead of losses as a result courts. of using the licence the applicant would have made a profit in the event of can- cellation of the licence. The applicant did not learn of the late publication of Regulation No 1579/76 until after the time-limit had expired for In its rejoinder the defendant observes appealing against the decision of the that the decisive factor is whether the Federal Office dated 5 July 1976. application is directed against measures adopted by national authorities on the basis of provisions of Community law. For this reason the applicant could not at the time actually assess the chances of success of a claim and weigh up the risks The case-law of the Court is guided by resulting from not using the licence save the legitimate aim of drawing a on the basis of its objections in substance systematic and clear dividing line to the lawfulness of Regulation No between the various legal remedies 1579/76. At the time the applicant was (Court of Justice and national courts) not able simply to content itself in this and preventing overlapping of these legal respect with bringing a claim against the remedies in spite of substantially similar decision of the Federal Office dated 5 aims; in this connexion priority is given July 1976; it would have had further to to pursuing legal remedies before the resolve to allow the period of validity of national courts in so far as these are or

damage is the export licence issued by the national authority, namely the Federal Office, in conjunction with the The applicant claims that in adopting decision refusing to cancel that licence. Regulation No 1579/76, which was at By bringing an action under Article 215 the origin of the rejection by the Federal of the EEC Treaty the applicant is Office of the request for cancellation seeking subsequently to escape the lodged by the applicant on 1 July 1976, consequences of the national measures the defendant was the cause of the and thus to avoid the conditions laid damage which the applicant suffered. down by the national law for making an application for annulment (inter alia time-limits). The application is therefore basically directed against the said Further, since the defendant knew at the measures. latest on 2 July 1976 that Regulation No 1579/76 had not been published either on 30 June 1976 or on 1 July 1976, it The defendant maintains that the ought to have explained to the applicant ought to have brought the competent national authorities that the matter before the national courts. The regulation could not apply to requests very fact that to begin with the applicant for cancellation of 1 July 1976. knew nothing of the delay in the publi- cation of the Official Journal shows the artificial nature of this application based on this factor which could not have had In its defence the defendant alleges that the slightest influence on the commercial there was no wrongful conduct on its measures which the applicant took. part on which the non-contractual liability of the Cpmmunity could be based. In fact, the applicant would receive an advantage vis-à-vis other exporters if it were successful in the present action. At the time an exporter who decided to First of all it observes that the applicant bring an action against the national bases its complaint of wrongful conduct refusal ran the risk of forfeiting his on the part of the Commission only on security. the delay in publication of Regulation

could have informed the competent national authorities on 2 July 1976 that It alleges that the decision of the Federal Regulation No 1579/76 was temporarily Office of 5 July 1976 was not only inapplicable. The defendant did not learn temporarily unlawful but was based on until 14 September 1976 of the delay in provisions which were absolutely inappli- publication, that is to say the date when cable because they had not yet entered the application in Case 88/76 was into force. There is scarcely any more lodged. serious legal defect,

Assuming that there was wrongful The wrongful conduct on the part of the defendant lies in the fact that it did not conduct on the part of the Commission, it is not sufficient to give rise to non- immediately state that the regulation contractual liability on the part of the could not apply to requests to cancel Community within the meaning of lodged on 1 July 1976. Article 215 of the Treaty. The misconduct relied on in the present case It is therefore irrelevant that the late relating to the publication of the. Official publication of the Official Journal was Journal is to be regarded as a formal due to force majeure. Further, the defect. Whatever may be the legal defendant cannot base a case of force consequences of such defects, they majeure on the strike of its own staff.

WAGNER COMMISSION

The defendant or in any event certain Community. There is no wrongful breach staff of the Office for Official Pub- by the Commission of its duty. lications knew on 2 July 1976 of the late publication of Regulation No 1579/76. If that information was not passed within the defendant's organization to the If it is thought that the wrongful conduct of the Commission lies in the fact that it proper officers that was due to the negligence on the part of that organi- neglected to warn the Federal Office, the zation. question arises whether the decision by the Federal Office is unlawful. In this

In its rejoinder the defendant points out first of all that under Article 42 of the If it is assumed that the wrongful Rules of Procedure a fresh issue is conduct of the Commission consisted in inadmissible. The applicant has never the delay in publishing Regulation No alleged even indirectly in its application 1579/76, then there is no causal link that the content of Regulation No between the fact and the damage alleged. 1579/76 is unlawful. It is only in the If the regulation had been published, as reply that it claims that the regulation is expected, by 1 July 1976 at the latest, the unlawful. applicant would have been in exactly the same position as now.

As regards the substance of the case the defendant alleges that the late pub- lication involves no misconduct by the Even on the basis of the alleged Commission giving rise to non-contrac- negligence by the Commission in not tual liability on the part of the informing the Federal Office, there is no

JUDGMENT OF 12. 12. 1979 — CASE 12/79

sufficient causal link between this and to cancel caused the applicant to suffer. the damage. The purpose of a special The compensation was equal only to the duty to inform could only be to protect difference between the monetary exporters against damage which would compensatory amount applicable from be a consequence of the delay in 1 July 1976 and that which would have publishing Regulation No 1579/76. been applicable if the new conversion There was no such damage and as a rates had not been used from 1 July result there is no specific causal link 1976.

2 The following facts are established: the statement of award was delivered to the applicant on 11 March 1976. The export licence relating thereto was issued on 18 March 1976. In the meantime, namely on 15 March 1976, the exchange rates for transactions concerned with the Common Agricultural Policy were altered by Council Regulation No 557/76 of 15 March 1976 on the exchange rates to be applied in agriculture (Official Journal No L 67, p. 1). On 1 July 1976 the applicant applied to the appropriate German intervention agency, the Bundesanstalt für Landwirtschaftliche Markt- ordnung (hereinafter referred to as "the Federal Office") to request can-

WAGNER COMMISSION

cellation of the export licence and release of the security which it had lodged. This request was refused by the Federal Office by a decision of 5 July 1976.

3 It should be recalled that Regulation No 1134/68 of the Council of 30 July 1968 laying down rules for the implementation of Regulation No 653/68 on conditions for alterations to the value of the unit of account used for the

4 On 22 June 1976 the Council adopted Regulation No 1451/76 amending Regulation No 557/76 (Official Journal No L 163, p. 5). According to the recitals in the preamble thereto the aim of the regulation was to prevent a wide exercise of the right to cancel from hindering good Community administration of a given agricultural market. To this end it provides that the "disadvantage" resulting from an alteration in the exchange rate may be compensated for by a suitable measure and that in such a case the right to request cancellation may no longer be exercised. Following that regulation flat rate compensation was fixed for white sugar by Commission Regulation No 1579/76 of 30 June 1976 laying down special detailed rules of application for sugar under Regulation No 557/76 on the exchange rates to

JUDGMENT OF 12. 12. 1979 — CASE 12/79

be applied in agriculture (Official Journal, No L 172, p. 59). Article 1 (2) of that regulation provides that expon licences for which compensation may be granted cannot be cancelled under the rules previously applicable.

5 The aforementioned Regulation No 1579/76 provides that it shall enter into force on 1 July 1976. It was published in an Official Journal dated 1 July 1976 but because of a strike that issue was not in fact published and distributed until the next day.

6 In its judgment of 31 March 1977 in Case 88/76 Société pour l'Exportation des Sucres v Commission [1977] ECR 709 the Court held that notwithstanding the fact that the regulation provides for its entry into force on 1 July 1976 it could properly be applied only on the following day and that consequently it could not be applied to applications for cancellation of licences lodged on 1 July 1976.

decision of the Federal Office was not challenged by the applicant, it is not for the Community to make good any damage caused by that decision.

10 The action for damages provided for in Articles 178 and 215 of the Treaty was included as an independent form of action, with a particular purpose to fulfil within the system of legal remedies, and subject to conditions on its use arising out of its specific nature. Its purpose is not to enable the Court to examine the validity of decisions taken by national agencies responsible for the implementation of certain measures within the framework of the Common Agricultural Policy or to assess the financial consequences resulting from any invalidity of such decisions.

11 The applicant has brought its action against the Community on the basis of non-contractual liability, alleging that the contested refusal by the Federal Office is entirely the result of the Commission's conduct. In the applicant's view the damage suffered arises from that conduct, since the national auth- orities had no choice other than to apply the Community provisions and to follow in this respect the directions given to them by the Commission.

12 It follows from the judgment of the Court of 31 March 1977 in the aforementioned Case 88/76 that Regulation No 1579/76 could not lawfully be applied to a request for cancellation lodged on 1 July 1976. However, it was for the national courts to give a ruling on the legality of the refusal by the Federal Office in pursuance of Community law within the forms laid down by national law, following recourse, where necessary, to Article 177 of the Treaty.

16 Pursuant to Article 69(2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs if they have been asked for in the successful party's pleading. Since the applicant has failed in its claim, it must be ordered to pay the costs.

On those grounds,

THE COURT

hereby:

1. Dismisses the application as inadmissible;

2. Orders the applicant to pay the costs.