C-256/80

JUDGMENT OF THE COURT 27 JANUARY 1982 1

Birra Wührer SpA and Others v Council and Commission of the European Communities

(Gritz — Barring of proceedings in matters arising from non-contractual liability)

Joined Cases 256, 257, 265 and 267/80 and 5/81

Action for damages — Period of limitation — Date of commencement — Liability arising from a legislative measure — Date on which the injurious effects of the measure are produced (EEC Treaty, Art. 178 and second paragraph of Art. 215; Protocol on the Statute of the Court of Justice of the EEC, Art. 43)

DE FRANCESCHI MARINO & FIGLI SPA , whose registered office is at 72a Viale Grigoietti, Pordenone, acting through its legal representative, Dino De Franceschi, the Managing Director,

RISERIA MODENESE SRL, whose registered office is at 5 Via Milano, Carpi (Modena), acting through its legal representative, Natalino Baetta,

and

RISERIE ANGELO E GIACOMO RONCAIA, whose registered office is at Castelporte (Mantua), acting through its proprietors, Angelo Roncaia and Giacomo Roncaia,

represented and assisted by Nicola Catalano of the Rome Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, Centre Louvigny 34 / B / 4 , Rue Philippe-II,

applicants,

composed of: J. Menens de Wilmars , President, G. Bosco, A. Touffait and O . Due (Presidents of Chambers ), P. Pescatore , Lord Mackenzie Stuart, A. O'Keeffe, T . Koopmans , U . Everling, A. Chloros and F. Grévisse, Judges ,

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

gives the following

JUDGMENT

Facts and Issues

The facts, the procedure and the detriment of the producers of maize arguments put forward by the parties gritz. during the written procedure solely on the issue of the admissibilitv of the Following that judgment, the refunds in actions may be summarized as follows: question, both for maize gritz and for broken rice, were restored by Council Regulations (EEC) Nos 1125, 1126 and 1127/78 of 22 May 1978 (Official I — Facts and written procedure Journal 1978, L 142) with effect from the date of the above-mentioned By Regulations Nos 665/75 and 668/75 judgment of the Court, that is to say of 4 March 1975 (Official Journal 1975, from 19 October 1977. Thus, no refunds L 72, pp. 14 and 18), the Council were granted in respect of the period abolished the refunds granted to from 1 August and 1 September 1975, producers of maize gritz and broken rice the dates on which they were abolished, used in the brewing industry with effect to 19 October 1977, the date on which from 1 August 1975 and 1 September they were restored. 1975 respectively. A number of producers of gritz brought By its judgment of 19 October 1977 in actions before the Court in order to Joined Cases 124/76 and 20/77, SA establish the non-contractual liability of Moulins et Huileries de Pont-à-Mousson v the Community. By its judgment of Office National Interprofessionnel des 4 October 1979 in Joined Cases 241, 242 Céréales [1977] ECR 1795, the Court and 245 to 250/78 DGV, Deutsche held that by abolishing the refund for Getreideverwertung und Rheinische Kraft- maize gritz whilst maintaining the refund futterwerke GmbH and Others v Council for the competing product, namely maize and Commission of the European starch, the Council had infringed the Communities, [1979] ECR 3017, the principle of equal treatment to the Court held that the Community had

incurred liability and ordered it to pay to (b) The second applicant, Mangimi the parties concerned amounts equivalent Niccolai SpA, produced maize groats to the production refunds which they intended for the brewing industry from would have been entitled to receive in 16 March 1976. Pursuant to Article 3 of respect of the period from 1 August 1975 Regulation No 665/75 of 4 March 1975, to 19 October 1977. it received no refunds in respect of its production during the period to During that period the applicants 18 October 1977. produced maize gritz or broken rice which were used in the brewing industry. On 19 November 1979, following the More precise details of the individual judgments of the Court of Justice of cases are as follows: 19 October 1977 and 4 October 1979 in the above-mentioned cases, the company applied for payment of the refunds of (a) Between 1 August 1975 and 18 Oct the Italian Ministries of Finance and ober 1977 the first applicant, Birra Agriculture and, by telex message of Wahrer SpA, used for the manufacture 15 March 1980, submitted a similar of beer maize groats and broken rice application to the Commission of the bought directly from the producers who, European Communities.

On Rheinische Kraftfutterwerke GmbH cited 8 November 1979, following the above, Birra Wührer SpA by telex judgments of the Court of Justice of message of 18 August 1980, applied to 19 October 1977 and 4 October 1977, in the Commission of the EEC for payment the above-mentioned cases, it applied for of the refunds due to producers of maize payment of the refunds to the Italian groats and broken rice.

From laid down by Article 43 of the Protocol the Commission, on the other hand, on the Statute of the Court of Justice of whilst not specifying a figure, it claimed the EEC [hereinafter referred to as the an amount equal to the refunds due for "Statute of the Court"]. maize groats and meal and stated the

quantities produced during the period cases, it applied for payment of the from 1 August 1975 to 19 October 1977. refunds to the Commission of the European Communities by letter of 2 September 1980. That application By letter of 30 September 1980, the evoked no response. The applicant points Commission replied that it was unable to out that the Commission has refused grant the application because it had similar applications on the ground that received the direct application after the they were received after the expiry of the expiry of the five-year period laid down five-year period referred to in Article 43 by Article 43 of the Statute of the Court. of the Statute of the Court, a period which in the Commission's view began to run on 20 March 1975, the date on (d) During the period from 1 Sep which the regulation unlawfully

received. That application evoked no (Case 267/80, on 1 December 1980 and response. The applicant points out that the fifth applicant, Riserie Roncata (Case the Commission rejected similar ap 5/81), on 12 February 1981. plications on the ground that it had received them after the expiry of the By interlocutory applications lodged on five-year period laid down by Article 43 29 December 1980 and 30 January 1981, of the Statute of the Court, a period the Commission and the Council of the which in the Commission's view began to European Communities raised objections run on 20 March 1975, the date on of inadmissibility against the first four which the regulation abolishing the actions under Article 91 of the Rules of refunds was published. Procedure of the Court of Justice and requested the Court to declare the actions inadmissible without considering (e) The fifth applicant, Riserie Angelo the substance of the cases.

March 1975. its statement lodged on 3 March 1981, declared their agreement that the_Court Following the judgments of the Court should decide upon—tmí objection of of Justice of 19 October 1977 and inadmissibility without considering the 4 October 1979 in the above-mentioned substance of the cases.

By order of 11 March 1981 the Court, sales of gritz effected during the with the agreement of the parties, period to 19 October 1977, by pre­ ordered that the cases be joined tor the scribing for the assessment of purposes of the oral procedure and the damages the criteria set out in the judgment. application, or such others as the Court may consider fair and appro­ Upon hearing the report of the Judge- priate (Case 257/80), Rapporteur and the views of the Advocate General, the Court decided to (iii) the damage sustained by the give a decision on the objection of applicant, De Franceschi Marino & inadmissibility without considering the Figli SpA, as a result of the abolition substance of the cases and to open the by Regulation No 665/75 of oral procedure without any preparatory 4 March 1975 of the production inquiry. refunds and as a result of the Community's failure to restore the said refunds in respect of sales of gritz effected during the period to II — Conclusions of the parties 19 October 1977, by prescribing for the assessment of damages the 1. The applicants claim that the Court criteria set out in the application, or should: such others as the Court may consider fair and appropriate (Case Dismiss the objection of inadmissibility 265/80); raised by the Council and the Commission; (iv) the damage sustained by the Order the European Economic applicant, Riseria Modenese Srl, as Community to make good: a result of the abolition by Regu­ lation No 668/75 of 4 March 1975 (i) the damage sustained by the of the production refunds and as a applicant, Birra Wührer SpA, as a result of the Community's failure to result of the abolition by Regu­ restore the said refunds in respect of lations Nos 665 and 668/75 of sales of broken rice effected during 4 March 1975 of the production the period to 19 October 1977, by refunds and as a result of the prescribing for the assessment of Community's failure to restore those damages the criteria set out in the refunds in respect of supplies of application, or such others as the broken rice and gritz effected Court may consider fair and appro­ during the periods from 4 Sep­ priate (Case 267/80); tember 1975 to 19 October 1977 and 14 June 1977 to 19 October (v) the damage sustained by the 1977, by prescribing for the applicant, Riserie Angelo e Giacomo assessment of damages the criteria Roncata, as a result of the abolition set out in the application, or such by Regulation No 668/75 of others as the Court may consider 4 March 1975 of the production fair and appropriate (Case 256/80); refunds and as a result of the failure to restore the said refunds in respect (ii) the damage sustained by the of sales of gritz effected during the applicant Mangimi Niccolai SpA, as period to 19 October 1977, by pre­ a result of the abolition bv Regu­ scribing for the assessment of lation No 665/75 of 4 March 1975 damages the criteria set out in the of production refunds and as a application, or such others as the result of the Community's failure to Court may consider fair and appro­ restore the said refunds in respect of priate (Case 5/81);

Furthermore, order the European period, there can be no dispute as to the Economic Community to pay interest dies ad quem, which can only be from the dates on which each refund 18 August 1980 (the date on which the should have been received; telex message was sent to the Commission by the applicant in Case Finally, order the European Economic 256/80), 25 March 1980 (the date on Community to pay the costs. which the telex message was sent to the Commission by the applicant in Case 2. The Council and the Commission, 257/80), 27 March 1980 (the date on raising the objection pursuant to Article which the telex message was sent to the 91 of the Rules of Procedure of the Commission by the applicant in Case 275/80), 8 August 1980 (the date on Court of Justice that the applicants' which the telex message was sent to the actions are time-barred under Article 43 Commission by the applicant in Case of the Statute of the Court, contend that 267/80) and 2 September 1980 (the date the Court should: on which the letter was sent to the Dismiss the actions as being out of time Commission by the applicant in Case without considering the substance of the 5/81). Each of those dates must be cases; and considered to be that on which the prior application was made by the aggrieved Order the applicants to pay the costs. party to the relevant institution of the Community pursuant to Article 43 of the Statute of the Court. III — Submissions and argu­ ments of the parties In the Commission's view those applications were submitted after the five-year period of limitation provided The commencement of the five-year period for by Article 43 of the Statute of the of limitation provided for by Article 43 of Court had expired, owing to the fact that the Statute of the Court the dies a quo to be adopted for the purpose of calculating the limitation The Commission of the European period is 20 March 1975, the date on Communities considers that the actions which Regulations Nos 665 and 668/75 brought by the applicants are barred by were published. reason of the five-year period of limitation referred to in Anicie 43 of the The Commission considers that there are Statute of the Court (Title III, two elements in the first sentence of Procedure), which is worded as follows: Article 43 which are essential to the interpretation of the provision, namely: "Proceedings against the Community in matters arising from non-contractual (a) the limitation period of five years liability shall be barred after a period of applies to proceedings brought five years from the occurrence of the against the Community in relation to event giving rise thereto. The period of non-contractual liability, and limitation shall be interrupted if proceedings are instituted before the (b) the dies a quo is expressly defined as Court or if prior to such proceedings an that of the occurrence of the event application is made by the aggrieved giving rise to such proceedings. party to the relevant institution of the Community . . .". Under the system established by Article The Commission observes that, as 43 it is therefore necessary to identify the regards the calculation of the limitation time when, in relation to the specific

"events", the right to institute This finding is confirmed by the rules in "proceedings" accrues. force in the legal systems of the Member States, the majorit)·, if not all, of which According to the Commission, by the recognize an action for a declaration of word "event" the Community legislature liability based on future damage which is meant not only a simple event or a sufficiently certain." simple material act but any kind of conduct or failure to act and any The Commission points out that in the situation, in the widest sense of the term, same case the Court made the following which causes damage to be sustained. statement with regard to the precise That wide concept cannot fail to cover point at which actions arising out of the actions of a "public authority", or in liability may be brought: other words, the measures adopted by ii, which as a result are capable as such of "... As soon as the Community rules in "giving rise" to proceedings arising from question were published and before they liability. were put into effect the applicants were justified in bringing before the Court the In that regard, the Commission considers question whether and to what extent that it is a principle generally recognized these rules were such as to put them at a in the legal systems of the Member disadvantage in relation to their French States that the period of limitation begins competitors and if so whether these rules to run from the day on which were for this reason contrary to the proceedings may be brought and refers principle of equal treatment. to Article 2935 of the Italian Codice Civile, Article 198 of the German Bür­ Since the damage which could result gerliches Gesetzbuch and Article 2252 of from the factual situation and the rules the French Code Civil. was imminent, the applicants could reserve the right to specif)' the amount of In order to identify the date on which the damage which the Community would the applicants were able to bring have eventually to make good and proceedings arising out of liability, the restrict themselves for the time being to Commission cites the judgment of the asking for a finding of the Community's Court of 2 June 1976 in Joined Cases 56 liability." and 60/74 Kampffmeyer v Commission and Council [1976] ECR 711 and the In the Commission's opinion, the judgment of 2 March 1977 in Case analogy with the circumstances of the 44/76 Milch-, Fett- und Eier-Kontor present cases is obvious and it considers GmbH v Council and Commission [1977] that if that case-law is compared with ECR 393, where the Court held as what has been stated above, the follows: necessary conclusion so far as the present cases are concerned is that since the "Article 215 of the Treaty does not cause of the actions for damages accrued prevent the Court from being asked to immediately after publication of the declare the Community liable for unlawful measures abolishing the imminent damage foreseeable with refunds, namely on 20 March 1975, that sufficient certainty even if the damage date constituted the beginning of the cannot yet be precisely assessed. limitation period relating to the actions.

seeable with sufficient certainty exists in this were not the case, it would have to these cases notwithstanding the fact that be acknowledged that the cause of the the loss of the refunds by the applicants damage was not the Community regu did not become effective until 1 August lations but the activity of the person or 1 September 1975, the respective dates claiming compensation, which would be on which Regulations Nos 665 and manifestly absurd. 668/75 entered into force. The Moreover, if the five-year limitation Commission adds that it was even period were calculated from a date sub possible for the applicants to assess the sequent to the publication of the quantum of the damage by means of a Community regulations, the limitation mathematical calculation based on the period would no longer be five years but relationship between the amount of the five years increased by the period refunds and the quantities of goods between publication in the Official produced which qualified for the Journal and the date on which the trader production refunds. claims that he has in fact suffered The Commission does not accept the damage. argument that in order to determine the Finally, the Commission observes that if date on which the period of limitation the applicants' argument that the began to run it is necessary to refer to beginning of the limitation period the time when the applicants actually coincided with the manifestation of the produced the goods in question and damage which each of them sustained actually found that there were no were accepted, there would be as many

but may become apparent later. In such a five-year period of limitation laid down case, the limitation period runs from the by Article 43 of the Court. moment when the damage is perceived The Council points out that the and that in itself constitutes a derogation applicants maintain inter alia that it from the general principle, but one would be possible to regard the legitimately imposed on grounds of limitation period as having commenced equity, because although at the time at a later date, in this case at the date on when the event occurs the damage is which Regulations Nos 1125, 1126 and merely a possibility and unforeseeable, it 1127/78 were published, in so far as nevertheless remains a direct con those regulations failed to re-establish sequence of the event. the right to payment of the refunds in respect of the period from 1 August or The Commission observes that in the 1 September 1975 to 18 October 1977. present cases the cause of the damage was the Community regulations whose The Council accepts that theoretically it publication gave rise to the actions for would be possible to consider other dates

JUDGMENT OF 27. 1. 1982 — JOINED CASES 256, 257, 265 AND 267 / 8 : AND 5/81

date of publication of the 1975 regu In the Council's view, Article 43 lations, that those concerned would established a close connection between suffer some financial loss by not the commencement of the limitation receiving the refunds in respect of their period and the "event giving rise" to production after the entry into force of non-contractual liability, that is to say, the regulations concerned. the origin of the damage. Thus, the provision means that as from the time The Council observes that those regu when it is certain that the person lations were unconditional measures and concerned has suffered or will suffer that their implementation at national damage the period of five years begins to level was automatic.

decision). The Council stresses that if the date of publication of the 1975 regulations is In that regard, the Council states that taken as commencement of the period of the majority of the undertakings in the limitation, this may in the present cases sector concerned brought actions directly

before the Court of Justice in order to Meroni v High Authority [1962] ECR make their claims in good time and 411, does not conflict with that interpre many undertakings began to do so as tation. early as 1975. The Council points out that in that In any event, the Council cannot accept judgment the Court held that the that an alleged ignorance of the limitation period under the ECSC Trean' Community law in force may be relied cannot begin to run in respect of damage upon in law against the Community. so long as the damage is still uncertain, In those circumstances, the Council that is to say so long as it is not possible considers that it is not unreasonable to to know for certain whether it has been raise the plea that the applicants' actions or will be incurred and submits that that are time-barred since they have not acted reasoning must also apply in the case of with the diligence which might the EEC Treaty. legitimately be expected of them.

That ECR 711, second subparagraph of means that there would be a limitation paragraph 6 of the decision (the second period of almost eight years. "durum wheat" case)). The Council concludes that is must The interpretation that the date on therefore be held that the applicants' which Regulations Nos 665 and 668/75 actions are out of time and are barred by were published is the commencement of Article 43 of the Statute of the Court. the period of limitation is, moreover, not only consistent with the wording of The Council nevertheless observes that Article 43 of the Statute of the Court but one special circumstance is deserving of is all the more compelling because of the consideration, because according to its legal certainty which it offers by making application the applicant in Case 257/80 it possible to ascertain, in each particular did not begin to produce gritz until case, a specific date, and one which is March 1976. The Council admits that it not arbitrary, for the beginning of the may therefore be wondered whether that limitation period. applicant is not justified in maintaining In the Council's opinion, the other dates that time could not have begun to run set out above all have the disadvantage against it in March 1975, one year of being uncertain or of being dependent before it began to produce gritz.

present case. The Council observes that the onlv judgment in which the Court has The applicants consider that it is interpreted Article 43 in a manner necessary first to clarify certain relevant to these cases, namely the fundamental concepts concerning the judgment in Joined Cases 46 and 47/59 date on which the limitation period

begins to run in the case of non-con The applicants observe that the tractual liability. distinction between a harmful event with lasting effects and a continuing harmful They accept that it is perfectly correct event is a corollary of the above- that Article 2935 of the Italian Codice mentioned case-law. They state that in Civile cited by the Commission states the first case there is a single, non that " the limitation period shall begin to recurring unlawful event from which the run on the date on which the right of period of limitation runs.

736). In other words, "the limitation gravation of the damage affects merely period for the right to claim the amount of financial compensation compensation for damage runs from the and cannot also have the effect of date on which the damage occurs and delaying until the aggravation occurs the not from the moment when the act is beginning of the period of limitation accomplished" (Cass. 18 November which still continues to be related to the 1974, No 3692, Arch. Giur.

2037 Giust, Civ. I, 1970), which has of determinant significance for the decided that "the event whose question at issue. Thus they maintain not occurrence marks the date on which the only that the period of limitation could period of limitation laid down in Article not begin to run before the occurrence 2497 begins to run . . . must be of the harmful effect resulting from the understood to mean the event as a unlawful measures contained in Regu whole, including the wrongful conduct lations Nos 665 and 668/75 but also that of the person concerned and its harmful even if the right to receive the

BIRRA WÜHRER v COUNCIL AND COMMISSION

before the Court. In that regard, the applicants consider it It follows that, at most, their claims significant that Article 2947 of the Italian could not be accepted in full; they Codice Civile provides that the period of cannot, however, be rejected completely. limitation is to begin to run on the day Although the problem does not arise in on which the event giving rise to the these cases because, as the applicants damage occurred. However, in a have stated, none of their claims are consistent and unanimous line of time-barred, either wholly or in part, the decisions the provision has been judi applicants consider that the explanations cially interpreted to the effect that the set out above are necessary in order to term "event" means the occurrence as a clarify all aspects of the question. whole and encompasses the wrongful act or omission and the damage arising from The applicants state that French case-law it. The applicants maintain that this is

injury or damage actually became apparent (paragraph 38 of the above- Without undertaking an analysis of mentioned text). comparative law, the applicants are convinced that the solutions adopted in The applicants observe that the the other Member States are, if not Commission expressly acknowledges that identical, then analagous to Italian and according to the principles generally French case-law. They consider that that applied in the case of liability for an is the conclusion to be drawn from the unlawful act in the strict sense, the comparative study undertaken by Mr period of limitation is calculated from Advocate General Reischl in Case 44/76 the occurrence of the damage and not Milch-, Fett- und Eier-Kontor GmbH from the event giving rise to it, but they Council and Commission [1977] ECR criticize the Commission for making the 410, at p. 414, which, they consider, mistake of considering that solution to fully supports their view.

It suffices, they claim, to point out that They stress that the judgment in Joined the differences in the case-law as to the Cases 56 to 60/70 Kampffmeyer cited time at which the damage and the person above was not in any way concerned liable are identified are not relevant to with the question of limitation but solely the present disputes, because in the with the admissibility of an action present cases the damage occurred and brought in respect of damage which had was repeated only when the meal and not yet occurred but which was fore broken rice were produced and seeable and arose from the provisions of designated for the manufacture of beer. regulations which had been published but had not yet entered into force and that The applicants submit that the references the Court held that Article 215 did not made by the defendants to precedents in prevent a person from bringing an action the case-law of the Court are wholly before the Court immediately, whilst irrelevant. reserving the right "to specif)· the amount of the damage which the The Council's reference to the judgment Community would have eventually to of 14 December 1962 in Joined Cases 46 make good". and 47/59 Meroni [1962] ECR 411 is ill-

The of the Court (EEC). normal rule is that an action must be brought after the harmful provision has With regard to the judgment given in actually caused damage and therefore Joined Cases 56 to 60/74 Kampffmeyer, after it has entered into force. According cited above, the Court, according to the to the applicants, however, even the applicants, did not in any way concern entry into force of the harmful provision itself with the question of limitation, may be insufficient to justify an action whereas in Case 44/76 Milch-, Fett- und for damages (as distinct from an action Eier-Kontor GmbH, cited above, the confined to seeking a general declaration Commission had pleaded that the action of liability), which may only be directed was time-barred but the Court, which towards obtaining compensation for decided to consider the substance of the damage which has actually occurred, case first, took the view that the that is to say, in the words of the Court, application was unfounded and did not "the amount of the damage which the give a decision on the objection that the Community would eventually have to action was out of time. make good".

BIRRA WUHRER v COUNCIL AND COMMISSION

The applicants point out that in Joined (a) Birra Wührer SpA was not entitled to Cases 56 to 60/74 Kampffmeyer cited claim the refunds until it had above (as well as in Case 44/76 Milch-, purchased the maize meal and Fett- und Eier-Kontor GmbH, in another broken rice and had obtained from context), the Commission pleaded that the producers of the products the actions were inadmissible because an assignment of the refund«; they were premature in view of the fact themselves. In that regard the that the damage had not yet occurred in applicant in Case 256/80 observes full. However, the Commission did not that although it is not a producer but plead that the applicants had no locus merely a user of gritz and broken standi, that is to say, it did not dispute rice, it is entitled to take the place of the fact that the applicants carried on a the producers of the products which

JUDGMENT OF 27. 1. 1982 — JOINED CASES 256. 257, 265 AND 267/8C AND 5/81

BIRRA WUHRER v COUNCIL AND COMMISSION

Only from that date therefore could an action for The applicants observe that the fact that damages be brought. Consequently, the Mangimi Niccolai SpA did not begin period of limitation began to run as from production until March 1976 causes that date. some concern to the Council's defence which seeks to overcome that problem by In reply to the Commission's argument relying upon paragraph 19 of the to the effect that if the period of decision in the judgment of 4 October limitation is not calculated from the date 1979 in Case 245/78 (Joined Cases 241, on which the unlawful provision was 242 and 245 to 250/78 DGV, Deutsche published, the result will be to increase Getreideverwertung und Rheinische Kraft- the five-year period by the period from futterwerke GmbH and Others v Council the date of publication to the time when and Commission [1979] ECR 3017), the damage occurred, the applicants where the Court dismissed the maintain that that is precisely what has application of SA Maïseries Benelux NV, been stated in a consistent and which arose in a manner identical to the unanimous line of judicial decisions, both

causal link. In this case it is not in published later, at the end of the five- dispute nor can there be any dispute that year period, how could the right to bring a causal link exists. an action for damages have been refused to a person who commenced production The applicants observe, moreover, that not merely a short time before but also the defendants assen that if the event some considerable time after the expiry giving rise to the damage is the of the five-year period from the date Community regulation, it would be on which the unlawful measure was absurd that the period of limitation published? should run from the date on which the goods were produced, that is to say, as a Finally, in reply to the Commission's result of the activity of the very person argument to the effect that if the who is claiming reimbursement. applicants' view were accepted, "there would be as many five-year periods of In the applicants' view that reasoning is limitation as there were consignments of

JUDGMENT OF 27. 1. 1982 — JOINED CASES 256. 257, 265 AND 267/8: AND 5/81

mous line of decisions. The principle is a the Commission made no attempt to general one which applies for example in refute the applicants' arguments to the all cases involving payments of account, effect that it was unlawful for Council recurrent obligations, recovery of undue Regulations Nos 1125 and 1127/78 to payments, etc. restrict the re-introduction of the refunds to the period from 19 October 1977. That unlawful restriction which was According to the applicants, their view contested in the actions brought by the does not therefore lead to "a wholly applicants, so that, as the case mav be, it unjustified piecemeal division of the is possible for the period of limitation to concept of 'proceedings' which is at the have begun to run on the date on which basis of limitation", as asserted by the those regulations were published. Commission.

Interruption of the five-year period of Finally, the applicants consider that the limitation five-year period of limitation may have started to run on the date on which The Council of the European Regulations Nos 1125 and 1127/78 were Communities maintains that the published. That view is consistent with applications which the applicants sent to the reasoning of the defendants which the Italian authorities and to the seeks to establish the date on which the Commission of the European Com­ unlawful regulations were published as munities could not have the effect of the starting point of the limitation period interrupting the five-year period of provided for by Article 43 of the Statute limitation laid down by Article 45 of the of the Court. Statute of the Court.

BIRRA BOHRER v COUNCIL AND COMMISSION

ihat those national authorities repon Moreover, the Council maintains that such applications to the Community the Commission's letter of 3 September authorities may not be regarded as an to the applicant in which it relied upon application by the aggrieved party to the period of limitation laid down by "the relevant institution of the Article 43 could not interrupt a period of Community" (the Council or the limitation which had already expired on Commission). the day on which the letter was sent.

JUDGMENT OF 27. I. 1982 — JOINED CASES 23o, 257. 265 AND 267/80 AND 5/81

Italian authorities were transmitted by IV — Oral procedure them to the Commission. Whilst they do not claim that those applications had the effect of interrupting the five-year period At the sitting on 8 July 1981 oral of limitation provided for by Article 43 argument was presented by the of the Statute of the Court, the following: N. Catalano, of the Rome applicants express their belief and are Bar, for Birra Wührer SpA, Mangimi prepared to give formal evidence to the Niccolai SpA, De Franceschi Marino &: effect that such transmission actually Figli SpA, Riseria Modenese Sri and took place before the expiry of the Riserie Angelo e Giacomo Roncaia; A. period which commenced on the date on Bräutigam and A Sacchettini, acting as which Regulations Nos 665 and 668/75 Agents, for the Council of the European were published. According to the Communities; and R. Wainwright and applicants that is apparent, moreover, G.L. Campogrande, acting as Agents, for from the fact that the Commission, in its the Commission of the European reply to the Italian Government, referred Communities. word for word and specifically to the applications, indicating by name those The Advocate General delivered his applicants which applied to the Italian opinion at the sitting on 13 October authorities. 1981.

Decision

1 By application lodged at »he Court Registry on 24 November 1980, 28 November 1980, 1 December 1980 and 12 February 1981, the applicants brought actions under Article 178 and the second paragraph of Article 215 of the EEC Treaty for compensation for damage caused to them by Regu­ lations (EEC) Nos 665 and 668/75 of the Council of 4 March 1975 abolishing the production refunds in respect of maize groats and meal and broken rice and as a result of the failure to restore the refunds in respect of the period from 1 August or 1 September 1975 to 19 October 1977, the last-mentioned date being the retroactive date of the application of Council Regulations (EEC) Nos 1125 and 1127/78 of 22 May 1978, which re­ introduced the above-mentioned system of production refunds.

5 According to the defendants the commencement of the five-year period of limitation must be 20 March 1975, the date of publication of Regulations Nos 665 and 668/75 of 4 March 1975, which the Court in its judgments of 19 October 1977 in Joined Cases 124/76 and 20/77 held to be invalid.

6 It follows, in the defendants' view, that the applicants could have brought their actions as from 20 March 1975 since the publication of the unlawful regulations which were at the origin of the damage sustained by the

JUDGMENT OF 27 1. 1982_ JOINED CASES 256, 257. 265 AND 267/80 AND 5/81

applicants may be considered as the event giving rise to the Community's liability and should therefore constitute the commencement of the five-year period of limitation laid down by Article 43 of the Statute of the Court.

7 According to the defendants the applications sent to the Commission could not interrupt the five-year period of limitation because they were submitted after the expiry of that period, whilst those sent to the Italian national auth­ orities on 8 and 19 November 1979 did not interrupt the period because they were made to authorities which were not "relevant" within the meaning of Article 43 of the Statute of the Court and were not followed by proceedings instituted by the applicants in conformity with the conditions laid down in the second paragraph of Article 175 of the EEC Treaty.

8 The applicants' argument is essentially to the effect that the commencement of the five-year period of limitation in relation to matters arising from the non-contractual liability of the Community can only be the moment when, in cases such as the present, the damage has in fact become apparent, that is to say, the date on which the refunds, became payable as the result of transactions creating an entitlement to them.

13 The preliminary objection raised by the Council and the Commission must therefore be dismissed.

On those grounds,

THE COURT ,

by way of interlocutory decision, hereby:

1. Dismisses the objections;

2. Reserves the costs.