C-11/81

In Case 11 / 81

FIRMA ANTON DÜRBECK, whose registered office is in Frankfurt am Main , represented by Messrs. Ehle , Feldmann , Schiller and Eyl of the Cologne Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt , 34 Rue Philippe-II ,

applicant,

v

COMMISSION OF THE EUROPEAN COMMUNITIES , represented by Jörn Sack , a member of its Legal Department , acting as Agent , with an address for service

I — Language of the Case: German.

gives the following.

JUDGMENT

Facts and Issues

I — Facts and written procedure On 21 January 1981, while the reference for a preliminary ruling was pending, Firma Anton Dürbeck (hereinafter referred to as "Dürbeck") submitted the The facts which gave rise to the present present application under the second case are the same as those in Case paragraph of Article 215 of the EEC 112/80, a reference for a preliminary Treaty against the European Economic ruling in which judgment was given on Community represented by the Com- 5 May 1981. mission of the European Communities.

DÜRBECK v COMMISSION

Material loss in the form of lost goodwill and lost market-share; The Commission contends that the Court should: Other contingent and future losses. 1. Dismiss the action as inadmissible and The action was lodged at the Court in any event unfounded; Registry on 21 January 1981. 2. Order the applicant to pay the costs. Upon hearing the report of the Judge- Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any III — Submissions and argu­ preparatory inquiry. The Court also ments of the parties decided pursuant to Article 95 (1) and (2) of the Rules of Procedure to refer Diirbeck first of all gives the following the case to the First Chamber. particulars concerning the amount which it claims as compensation for damage which it has suffered or will suffer by II — Conclusions of the parties reason of the suspension ordered by the Commission on 5 April 1979 of impor­ tations of Chilean dessert apples: Diirbeck claims in its application that the Court should: By way of damages payable to the Chilean producer for failure to take 1. Order the défendent to pay the delivery of some 110 000 boxes of applicant 506 850 US dollars, with dessert apples which were the subject of interest at 6 % from the com­ a firm order, the sum of 300 000 US mencement of the proceedings; dollars, that is to say the difference between the contract price and the price 2. Declare that the defendant is obliged which the producer subsequently to compensate the applicant for all obtained on the Chilean market;

JUDGMENT OF 1. 4. 1982 — CASE 11/81

10 000 US dollars by way of damages for In its first submission Diirbeck alleges loss of goodwill and position in the that the protective measure was adopted market, leading in Dürbeck's view to with regard to Chile because Chile financial losses far in excess of the refused to agree to voluntary restraint as amount claimed as compensation; proposed by the Commission. It considers that such agreements, being instruments of economic policy, may be Further contingent damage, the amount concluded by the Commission only on of which is not yet quantifiable. the basis of express authorization from the Council pursuant to Articles 113 and As the basis for its claim for 43 of the EEC Treaty and that no such compensation Diirbeck submits that the authorization was granted in the present adoption of the protective measure and case. Since it was thus contrary to the refusal to adopt special transitional Community law to conclude such provisions in its favour are unlawful for agreements it was even more so to the following reasons: penalize Chile's refusal to be a party thereto.

1. Lack of legal basis for the conclusion of agreements on voluntary restraint; In its second submission Diirbeck states first of all that the decisive factor in assessing the existence of conditions 2. Breach of the provisions of Article 29 justifying the adoption of a protective of Regulation (EEC) No 1035/72 in measure in the present case was the conjunction with Articles 1, 2 and 3 situation of the apple market not for the of Regulation (EEC) No 2707/72; whole of the 1978/79 marketing year but only during the first half of April 1979.

(b) The Commission assessed the previous years, the situation of the apple situation on the market in dessert market has been discussed by the apples according to criteria which Advisory Committee and the Man­ did not comply with the provisions agement Committee. The Commission on the adoption of protective thus had at least five months to consider measures inasmuch as it took into and assess from all aspects the need for account produce not qualifying protective measures in 1979. for intervention and thus not marketable (in Dürbeck's view some Dürbeck then states that contrary to 70 % of the 1978 production) and what the Commission said in the produce qualifying for intervention preamble to Regulation No 687/79 the but not marketable as dessert apples imports to be feared when the protective and thus not competing with fresh measure was adopted were not imports apples from the southern of unlimited quantities of fresh apples hemisphere; from non-member countries but solely imports from Chile since the other (c) The Commission wrongly assessed countries in the southern hemisphere had the quantity of marketable dessert concluded agreements on voluntary apples still in storage when the restraint with the Commission. protective measure was adopted, that Moreover, the quantity which could have been exported from Chile (13 000 tonnes is to say on 5 April 1979, since for of which between 5 000 and 8 000 tonnes technical reasons the stocking of were in transit to Austria) was known to apples in ordinary or cold storage the Commission, which had received could not be extended (save in the precise information on that subject case of controlled atmosphere during a meeting of its representatives warehouses) beyond the end of with the representatives of the importers February and beginning of March in on 14 March 1979. each year;

degree, but have a positive marketing the Netherlands by persons who effect upon the sales of domestic dessert reintroduced on to the market some apples both from the quantitative point 8 000 tonnes of apples which had already of view and as regards the prices benefited from intervention. That fact obtained. Moreover, the passage in the shows that in spite of the imports reasons given for Regulation No 687/79 expected from overseas it was reasonable which states that imports from non- in 1979 to consider that there was still a member countries " could .

The prices of dessen apples Dürbeck's opinion that the Commission were subject in 1980 to great fluctuation in no way attempted to enquire about until the 13th week of the marketing the distribution of dessert apples year, which is the week when imports according to size and whether those from overseas normally begin each year; stored and those benefiting from thereafter prices increase constantly. intervention complied with the standards There was no such trend in 1979 and the of quality. The defective nature of the

varieties. In the present case it is Finally, Dürbeck mentions fraudulent necessary to analyse the prices for the transactions carried out in 1979 in "golden delicious" variety having a

diameter of 70 mm or more, since it is The objectives of Article 39 were disre­ only apples of that kind and size which garded by the protective measure have been supplied by countries of the although the importation of Chilean southern hemisphere. The information apples would not have exposed them to provided by the Commission does not any risk. The first paragraph of Article meet the said criterion. 110, which provides that the Community and the Member States shall contribute to the progressive abolition of restrictions on international trade, was The Commission's infringement of Regu­ disregarded in an even more flagrant lation No 1035/72 involves at the same manner. That also involves, moreover, time a breach of the applicant's right to disregard of the undertakings assumed carry on its trade, which right is under GATT. protected by the German constitution. That leads to the conclusion that the Commission has infringed a superior rule Diirbeck's fifth submission is that in the of law conferring rights on individuals. context of the general relations between the Community and non-member countries there has been a breach of the principle of non-discrimination inasmuch Diirbeck's third submission is that in arbi­ as the import quota granted to Chile has, trarily and for no good reason disre­ for no valid reason, been reduced prop­ garding existing contracts in order to ortionately to a much greater extent than show Chile what might be the the impon quota granted to other consequences of not accepting voluntary countries. restrictions the Commission acted in breach of the principle of the protection of legitimate expectation. The adoption of an unjustified protective measure was Further, by authorizing in Regulation intervention which could not reasonably No 1152/79 the importation of goods be expected. The admission for many which were not in transit so the years of a total quantity of some 360 000 Community when the protective measure tonnes with a tendency to increase, the was adopted the Commision disregarded obligation laid down by Article XI of the special principle of non-discrimi­ GATT, numerous meetings between the nation laid down in Article 40 (3) of the Commission and the exporting countries EEC Treaty. That regulation practically of the southern hemisphere and with the amounted to a special rule for a single importers, and the precise knowledge German undertaking which shipped the which the Commission had of the goods after the protected measure was market, created between the Commision adopted. and the importers special legal relations on which the importers might rely in their business transactions. In its reply, Dürbeck discusses in particular the question of the burden of proof since the Commission repeatedly stressed that certain facts alleged by the Diirbeck's fourth submission is that, applicant had not been proved. according to Article 37 thereof, Regu­ lation No 1035/72 must be so applied that "appropriate account is taken, at the Dürbeck concedes that, according to same time, of the objectives set out in decisions of the Court of Justice, there is Articles 39 and 110 of the Treaty". a presumption that regulations adopted

Dürbeck adds that the Commission, as Where the first condition is not satisfied, an 'impartial authority', must not act as the facts stated in the reasons given for an ordinary party, but in cases before the the regulation should be conclusive and Court must produce all documents relevant; or relating to information made available to it by the Member States pursuant to legal provisions, since such documents, in view "Where the aforementioned conditions of their confidential nature, are not are not satisfied, the Commission can available to private parties. prove that it has given careful consideration to the conditions for recourse to the protective measure and that it has exhausted all possible sources The Commission first of all challenges of information. the applicant's conduct of the proceedings and states that even if the action is strictly admissible Dürbeck Dürbeck considers that none of these ought to have awaited the conclusion of conditions has been satisfied in the the reference for a preliminary ruling in present case. Case 112/80 before bringing its action for damages.

It follows from the wording of Articles 1 As regards Diirbeck's first submission, it and 2 of Regulation No 2707/72 says that although there are no express ('account shall be taken of' or 'account provisions empowering it to make shall be taken in particular of') that the agreements with non-member countries criteria set out there are not all binding on voluntary restrictions, it has the upon the Commission and are not power to adopt protective measures absolutely mandatory. Similarly, Article pursuant to Anicie 29 of Regulation No 3 states that certain measures may be 1035/72 of the Council of 18 May 1972 taken. All this implies relatively wide on the common organization of the discretion on the part of the market in food and vegetables. Commission.

alleged failure to fulfil its obligation to reintroducing on to the market apples acquaint itself with the actual facts which had already benefited from capable of justifying the adoption of intervention, the Commission observes protective measures. that those transactions took place in 1980, not 1979, so that they cannot be In substance, the applicant is not relied upon in judging the lawfulness of complaining that the Commission failed measures adopted by the Commission in to acquaint itself with the facts but that it 1979. drew the wrong conclusions from the information obtained.

States. It is apparent from those figures and statements that none of the supplier countries had any difficulty in using up With regard to the quantities in transit, its export quotas. the Commission stresses that the Chilean authorities could not give precise infor The statement to the effect that 70 % of mation and that the method of sur the dessert apples stored in March and veillance proposed by certain importers April 1979 did not satisfy the quality could not be accepted in the absence of criteria required for intervention is also sufficient means or control.

Community law. The applicant alone has Commission admits that the wording in the burden of proving such a systematic German is somewhat unfortunate since it and serious breach. For its part, the is not only in theory but also in practice Commission has no evidence warranting that imports cause increased recourse to the allegation. In view of the very serious intervention in respect of apples of standard which the Commission has Community origin. adopted in auditing the Member States' final accounts for the European Agri cultural Guidance and Guarantee Fund it The Commission is firmly of the opinion is most unlikely that the Member States that imported goods take the place on would systematically disregard the the market, to some extent at least, of Community rules concerning fruit and Community produce.

DÜRBECK v COMMISSION

import ceilings are exceeded the fact that Finally, the Commission sets out certain fresh imponed produce largely takes the objections to the amount of damages place of domestic produce is no longer claimed by the applicant. It makes the compensated for by an increase in total following observations: sales. That is confirmed by the price trend for the 1979 marketing year, prices having fallen sharply when imports of dessert apples from the southern hemisphere became available. The applicant has so far paid no damages to third parties by reason of the cancellation of the contract of sale or the charterparty and if it is not in a position to prove at least that it has had to The Commission considers that it did recognize claims to compensation or has not exceed its discretion, as regards the been found liable to some payment it has small quantities which might still be at present no right to quantifiable imported, by giving priority to goods in damages. transit to the Community and then to goods which had already reached a Community port. It categorically denies intending to favour specific under­ takings. It also states that from the outset it had informed the Chilean authorities The fact that it calculates the damages of its intention not to allow the impor­ for lost profits in US Dollars indicates tation of Chilean apples beyond 25 April that the applicant is apparently specu­ 1979, if, contran' to expectations, the lating in secret currency profits. quantity specified was not attained.

The Commission first of all most emphatically challenged the admissibility IV — Oral Procedure of the new submission and argued that the applicant had had the opportunity of relying on it, if only in the alternative, in its application and had not done so. The parties presented oral argument at the hearing on 19 November 1981.

As for the alleged breach of the principle of non-discrimination, the Commission Dürbeck took note of the judgment given observed that quantities of apples by the Court on 5 May 1981 in Case shipped after the protective measure was 112/81. It accordingly abandoned the adopted were first of all held up in first second and fourth submissions customs warehouses and their impor­ pleaded in its application. As regards the tation was authorized only when it was third submission based on the principle found that part of the apples already of the protection of legitimate imported were to be re-exported outside expectation, it stressed that henceforth it the Community. It added that the small was relying solely on the fact that the additional quantity which it thus became Commission disregarded that principle possible to import could not reasonably by not adhering to its statements that it be shared between a large number of would abide strictly by Regulation No undertakings and the preference 687/79 and only allow the importation reasonably given in the circumstances to of goods which were already in transit to goods -which had already reached a the Community when the protective Community port involved no discrimi­ measure was adopted. As regards the nation. fifth submission alleging breach of the principle of non-discrimination, it admitted that there was no breach of that principle when goods already in The Commission also denied infringing transit to the Community were exempted the principle of legitimate expectation from a protective measure but main­ since it could not know in advance tained that in fact the Commission auth­ whether, by reason of any re-expor­ orized the importation of goods which tations that there might be, subsequent were not in transit. imports would become possible.

Breach of Article 29 of Regulation No 1035/72 in conjunction with Articles 1, 2 and 3 of Regulation No 2707/72;

Breach of the principle of the protection of legitimate expectation;

Breach of Article 37 of Regulation No 1035/72 in conjunction with Articles 39 and 110 of the EEC Treaty;

Breach of the general principle of non-discrimination.

3 On 5 May 1981 in Case 112/80 the Court ruled, in reply to a preliminary question put to it by the Hessisches Finanzgericht [Finance Court, Hesse] on the validity of the regulations, that: "Consideration of the question raised has disclosed no factor of such a kind as to affect the validity of Commission Regulations Nos 687/79, 797/79 and 1152/79".

JUDGMENT OF 1. 4. 1982 — CASE 11/81

7 In this respect, Dürbeck stresses that by telex message of 10 April 1979 it asked the Commission for authorization to import before 10 or 15 May 1979 some 2 000 tonnes of Chilean dessert apples which were ready to be shipped and the Commission, the same day, refused, saying that the goods referred

DÜRBECK v COMMISSION

to in the applicant's telex message could not be regarded as goods in transit to the Community.

8 The above-mentioned submission was included in the application and is therefore admissible. Moreover, although it amounts in substance to challenging Regulation No 1152/79 as discriminatory, it is based on a factor which was not taken into account in Case 112/80. It is right therefore to consider the submission in the present action.

9 The Commission has rightly observed that the treatment of Diirbeck is not discriminatory. It explained at the hearing that the Chilean apples shipped after 12 April 1979 had first of all been held up in the customs warehouses of a Member State and their importation was subsequently authorized only on objective grounds not connected with the identity of the undertakings concerned after it had been found that part of the apples already imported would be re-exported outside the Community. The small additional quantity of apples which it thus became possible to import could not reasonably have been shared among a large number of firms and it accordingly appeared reasonable to give preference to goods which had already reached a Community port.

10 The solution adopted by the Commission does not exceed the limits of the discretion which it enjoys in the performance of the tasks entrusted to it by Regulation No 1035/72 of the Council on the common organization of the market in fruit and vegetables.

Possible liability of the Commission as a result of the adoption of lawful measures

15 It must be observed that this issue was raised only during the oral procedure and is therefore also a fresh submission based on the judgment of the Court of 5 May 1981.

16 The judgment given by the Court in Case 112/80 cannot however be regarded as a factor allowing a fresh issue to be raised pursuant to the aforesaid Article 42(2).

17 For a new fact to be able to justify the raising of a fresh issue during the proceedings the fact must not have existed or must not have been known to the applicant when the action was commenced. Since measures adopted by the Community institutions are presumed to be valid until such time as the Court may declare them incompatible with the treaties establishing the Communities, the judgment given by the Court in Case 112/80 merely confirmed the law which was known to the applicant when it brought its action.

18 In those circumstances Dürbeck could have safeguarded its position only by pleading in the application claims in the alternative which it considered it would still be able to argue if the contested measures were declared lawful.

DÜRBECK v COMMISSION

1. Dismisses the action as unfounded, so far as the submission relating to the breach of the principle of non-discrimination is concerned;

2. Dismisses the action as inadmissible, so far as the applicant's other submissions are concerned;

3. Orders the applicant to pay the costs.

Bosco O'Keeffe Koopmans

Delivered in open court in Luxembourg on 1 April 1982.

J. A. Pompe G. Bosco Deputy Registrar President of the First Chamber