C-133/79

JUDGMENT OF 27. 3. 1980 — CASE 133/79

co-operation cannot make the administrative acts of Member States Community liable to individuals. in applying Community law is primarily a matter for national courts, without prejudice to their power to That is in any case the position where refer questions for a preliminary it is not the Commission's expression ruling to the Court under Article 177 of opinion but solely the national of the EEC Treaty. In these circum- authority's decision ratifying it which stances the remedy to be envisaged in might be regarded as causing damage such a case is an action before the to the applicant. Indeed, a review of national courts.

In Case 133/79

1. SUCRIMEX S.A., Paris,

2. WESTZUCKER G M B H , Dortmund

represented by Messrs Funck-Brentano, of the Paris Bar, with an address for service in Luxembourg at the Chambers of M. Neuen-Kauffman, 21 Rue Philippe II, applicants, v

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the Frankfurt, (hereinafter referred to as the procedure and the submissions and "Federal Office"), which had issued the arguments of the parties may be licences, prepared fresh licences and the summarized as follows: 2 600 tonnes of sugar to which they related were exported on 30 and 31 May 1979 under cover of those licences. I — Facts and written p r o c e d u r e Sucrimex subsequently applied on 6 and 7 June 1979 to the Fonds d'Intervention 1. The first applicant, Sucrimex, sold et de Régularisation du Marché du Sucre sugar to the second applicant, [Sugar Market Intervention and Stabi- Westzucker. Westzucker in turn assigned lization Fund], Paris, (hereinafter to Sucrimex the rights attached to export referred to as "the Fund") for the licences relating to 2 600 tonnes of sugar payment of the exports refunds at the to enable the latter to arrange customs rate indicated in the licences. By a letter clearance of the sugar for the account of of 5 July 1979 the Fund rejected the Westzucker. The licences were valid applications "in view of the opinion until 31 May 1979 and indicated the rate expressed by the Commission" in a telex of export refund fixed by tendering message signed by the Director General procedure. for Agriculture which was sent to the Fund on 3 July 1979. Consequently the Sucrimex received the licences on 16 Fund agreed to pay only the refund May 1979 and passed them on the same applicable on the day when the customs day to a transport undertaking for formalities for export were completed, delivery to the forwarding agent in which was FF 921 339.04 less than the Dunkirk. The licences were lost en route. amount requested by Sucrimex. At the request of Westzucker, the Bun- desanstalt für landwirtschaftliche Markt- ordnung [Federal Office for the Organi- The Commission's telex message referred zation of Agricultural Markets], to above is worded as follows:

"Following the discussions at the were completed (See the Commission meeting of the Management Committee rules fixing the refunds applicable to for Sugar of 13 June 1979, I write to exports). inform you that: C. Villain, Director General". 1. When the Federal Office issued the documents referred to above it made The Commission's telex message was an error (the word 'duplicate' not preceded amongst other things by a telex appearing on the licence); these message of 23 May 1979 sent by the documents which seem to be extracts Association des Organisations Profes- from licence N o 251 55986 are sionnelles du Commerce des Sucres actually duplicates of the extracts [Association of Sugar Trade Organi- which were lost. zations] requesting it to deal urgently with the problem created by the lost Article 17 (7) of EEC Regulation No certificates and 193/75 provides that duplicates may not be submitted for purposes of "at least to give the national organi- carrying out export operations. zations provisional authority to deal with this situation by requiring from the The validity of this provision has not holder such guarantees as may be been questioned by the Court of thought appropriate". Justice in the judgment delivered in Case 168/73. The Commission replied first by telephone on 23 May 1979 to the Normally the documents could not President of the Syndicat du Commerce have been used for the purpose of des Sucres [Sugar Trade Association] in carrying out export operations owing Paris and then by a telex message on 6 to their bearing the word June 1979 to the Association des Organi- 'duplicate'..." sations Professionnelles that where a licence is lost, the duplicate may not be submitted for purposes of carrying out Having given the factual background, export transactions. The Commission the Commission continues: confirmed its position by a telex message of 9 August 1979 sent to Sucrimex. "The Commission's officers feel that Sucrimex cannot claim that it did not know that the documents which it held 2. Article 17 (7) of Regulation No were not genuine licence extracts. 193/75 of the Commission of 17 January 1975 laying down common detailed rules 3. Therefore the officers of the for the application of the system of Commission conclude that there is no import and export licences and advance legitimate reason for paying the fixing certificates for agricultural refund calculated on the basis of the products (Official Journal L 25, p. 10), rate fixed by tendering procedure referred to in the Commission's telex appearing in those documents. message of 3 July 1979, reads as follows:

3. The principal claim of this In support of their claim for damages the application is for the annulment under applicants contend amongst other things the second paragraph of Article 173 of that the Commission was guilty of the Treaty of the alleged decision which negligent failure to act in not clearly the Commission communicated to the explaining its position until 3 July 1979 Fund on 3 July 1979 and, in the alter- in spite of the Association's telex native, for a declaration that the message of 23 May 1979. Commission should pay the said sum of FF 921 339.04 by way of damages together with legal interest on the basis Referring to their observations of Article 178 and the second paragraph concerning the claim for annulment, the of Article 215 of the Treaty. applicants next point out that the Commission was in breach of the principles of legal certainty and of the To support their claim for annulment the protection of legitimate expectation by applicants argue that the Commission treating documents properly issued as erred in law in the disputed decision by non-existent. The applicants conclude calling the licences issued by the Federal that Sucrimex has suffered damage of an Office "duplicates" They were amount equal to the refunds not paid "identical" certificates. Furthermore the owing to the Commission's default and Commission was in breach of Regulation that the conditions for the second No 192/75 of 17 January 1975 laying paragraph of Article 215 to apply are down detailed rules for the application therefore fulfilled. of export refunds in respect of agri- cultural products (Official Journal L 25, p. 1) as well as Regulation No 193/75 referred to above. Since the sugar to 4. By a document lodged on 28 which the licences related was exported September 1979 the Commission raised and the "identical" licences submitted an objection of inadmissibility under and verified on the day of export, the Article 91 (1) of the Rules of Procedure applicants say that they are entitled to by which it claims that the Court should: payment of the refunds requested. — Dismiss the applications as Moreover, by not taking a decision inadmissible; quickly, the Commission was in breach of the principle of legal certainty which — Order the applicants to pay the costs. requires that a decision should be taken quickly in order to protect traders engaged in firm and irrevocable transactions. It likewise infringed the 5. In their pleading relating to the principle of the protection of legitimate objection of inadmissibility lodged on expectation, since the applicants were 8 November 1979, the applicants contend entitled to rely on the licences in that the Court should:

II — S u b m i s s i o n s a n d a r g u m e n t s As regards the claim for damages the of the parties on the Commission refers to the arguments a d m i s s i b i l i t y of t h e a c t i o n which it presented in regard to the application for annulment. It expresses the view that the attitude expressed in its 1. As regards the applicants' claim for telex message cannot be treated as annulment the Commission contends behaviour fulfilling the conditions amongst other things that its telex required by Article 215 of the Treaty for message of 3 July 1979 simply constitutes an action to be brought before the an informatory letter recalling the rules Court. applicable in a case of this kind and that it cannot have any legal effect. As regards the "negligent failure to act" alleged by the applicants, the Furthermore this telex message binds the Commission points out that it informed officers of the Commission only and the President of the Syndicat du cannot be imputed to the Institution Commerce des Sucrés in Paris as early as itself. In fact there is no provision laying 23 May 1979 of what the rules provided. down in this matter that the Director General for Agriculture shall have the power to bind the Commission. The Commission adds that the applicants could have challenged before the More generally, there is no provision national courts the measures adopted laying down a specific procedure to pursuant to Regulation N o 193/75 settle cases such as this. The Commission refusing to accept the export licences for

SUCRIMEX v COMMISSION

JUDGMENT OF 27. 3. 1980 — CASE 133/79

presence of a representative from the 3. The Commission referred amongst Fund. The minutes show that, subject to other things to the judgment of the any contrary opinion of the Commission, Court of 12 December 1979 in Case the Fund intended to pay the refunds in 12/79, Wagner v Commission, and in dispute. particular to paragraph 10 in which the Court stated that: It also emerges that the representatives of the Legal Department of the Commission: "The action for damages provided for in Articles 178 and 215 of the Treaty" was — Declare that he could not approve of not intended "to enable the Court to a solution whereby a replacement examine the validity of decisions taken licence would be issued for the by national agencies responsible for the purpose of completing the export implementation of certain measures transactions and the exporters would within the framework of the Common be asked to put up security equal to Agricultural Policy or to assess the the refund; financial consequences resulting from — Requested that payment of the any invalidity of such decisions". refund provided for by the lost certi- ficates should not be made; 4. The applicants pointed out inter alia — Did not see any difficulty in the that if the Fund had disregarded the Fund's paying the refund applying at Commission's opinion, when accounts the date of export in regard to the were cleared the Commission would exports made; have refused to recognize the expenses in question as being for the account of the — Wished to support any initiative of European Agricultural Guidance and the departments concerned to amend Guarantee Fund. the existing rules which did not provide any solution for the case in The applicants further informed the hand. Court that they had brought an action before the French administrative court 2. At the sitting held on 30 January against the refusal of the Fund to pay the 1980, the applicants, represented by Lise refunds. Funck-Brentano, of the Paris Bar, and the Commission, represented by J. Delmoly, a member of its Legal 5. The Advocate General delivered his Department, presented oral argument. opinion on 6 March 1980.

4 In the meantime the Association des Organisations Professionnelles du Commerce des Sucres had asked the Commission by telex message of 23 May 1979 to deal urgently with the problem created by the lost certi- ficates since in its opinion the rule laid down by Article 17 (7) of Regulation N o 193/75 of the Commission of 17 January 1975 laying down common detailed rules for the application of the system of import and export licences and advanced fixing certificates for agricultural products (Official Journal L 25, p. 10) was unsatisfactory.

5 That provision reads as follows:

"Where a licence or certificate or extract therefrom is lost, issuing agencies may, exceptionally, supply the party concerned with a duplicate thereof, drawn up and endorsed in the same way as the original document and clearly marked with the word 'duplicate' on each copy.

Duplicates may not be submitted for purposes of carrying out import or export operations."

6 On the same day the Commission confirmed by telephone message to the President of the Syndicat du Commerce des Sucres in Paris and then by telex message of 6 June 1979 to the Association the content of the applicable rules,

JUDGMENT OF 27. 3. 1980 — CASE 133/79

io In support of their application for annulment the applicant companies contend that the Commission is wrong to refer to the "identical" licences as "duplicates", that it is disregarding the regulations on export refunds when rejecting an application for payment of refunds for exports made under cover

SUCRIMEX v COMMISSION

of "identical" licences, that it is in breach of the principle of legal certainty for not taking a decision quickly, and finally that it is in breach of the principle of the protection of legitimate expectation since the applicants were entitled to rely on the licences in question; moreover the decision in question is retroactive.

n In support of their claim for damages the applicants contend that they have suffered damage which is équivalent to the amount of the refunds unpaid owing to the unlawful acts described above and the default of the Commission in not clearly expressing its position until 3 July 1979 in spite of the Association's telex message of 23 May 1979.

i2 The Commission has raised an objection of inadmissibility under Article 91 (1) of the Rules of Procedure. It is appropriate to give a decision upon the admissibility of the different heads of the applicants' claims without going into the substance of the case.

u The Commission contends in support of its objection of inadmissibility relating to the application for annulment that its telex message of 3 July 1979 constitutes only an informatory letter addressed to the Fund, which is limited to summarizing the rules applicable to the case and cannot therefore have any legal effect. Furthermore the said telex message is binding only on the officers of the Commission and cannot be imputed to the institution itself.

i9 The application must therefore be dismissed as inadmissible in so far as it is founded upon the second paragraph of Article 173 of the Treaty.

20 In support of its objection of inadmissibility relating to the claim for damages the Commission contends that the opinion expressed in its telex message cannot be regarded as conduct which satisfies the conditions laid down by the second paragraph of Article 215 of the Treaty enabling an action to be brought before the Court. Furthermore, the applicants should have challenged before the national courts the refusal by the national body to grant the disputed refunds.

2i For their part the applicants take the view that since the Commission's solution cannot be justified in law they are entitled to seek payment of the rest of the refund by means of an action for damages.

22 As far as concerns this claim, which is in the alternative and is for an amount equivalent to the sum of the unpaid refunds and therefore closely bound up with the application for annulment, it suffices to call to mind the relationship, described above, between the Commission and the Fund. The telex message, like all the Commission's actions which are in dispute, is part

SUCRIMEX v COMMISSION

of the internal co-operation between the Commission and the national bodies responsible for applying Community rules in this field; as a general rule this co-operation cannot make the Community liable to individuals.

T H E C O U R T (Second Chamber)

hereby:

1. Dismisses the application as inadmissible;

OPINION OF MR REISCHL — CASE 133/79

2. Orders the applicants to pay the costs.

Touffait Pescatore Due

I — Translated from the German.