C-51/81

As is apparent form Article 215 of the The period of limitation which applies EEC Treaty and Article 43 of the to proceedings in matters arising trom Protocol on the Statute of the Court of the non-contractual liability of the Justice of the EEC, the involvement of Community therefore cannot begin the non-contractual liability of the before all the requirements governing the Community and the assertion of the obligation to provide compensation for right to compensation for damage damage are satisfied and in particular suffered depend on the satisfaction of a before the damage to be made good has number of requirements relating to the materialized. Accordingly, since the existence of an unlawful measure situations concerned are those in which adopted by the Community institutions, the liability of the Community has its actual damage and a causal relationship origin in a legislative measure, the period between them. of limitation cannot begin before the injurious effects of that measure have been produced.

In Case 51 / 81

DE FRANCESCHI SPA MONFALCONE , whose registered office is at Monfalcone , acting through its legal representative for the time being, Coclite De Franceschi, represented and assisted for the purpose of the present proceedings by Giovanni Maria Ubertazzi and Fausto Capelli, of the Milan Bar, with an address for service in Luxembourg at the Chambers of Louis Schütz , 83 Boulevard Grande-Duchesse-Charlotte ,

applicant,

I — Language of the Case: Italian

JUDGMENT OF 27. 1. 1982 — CASE 51/81

THE COURT

composed of: J. Mertensde 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

DE FRANCESCHI v COUNCIL AND COMMISSION

JUDGMENT

The facts, the procedure and the 250/78 DGV, Deutsche Getreidever- arguments of the parties put forward wertung und Rheinische Kraftfutterwerke during the written procedure solely on and Others v Council and Commission the issue for admissibility of the action [1979] ECR 3017, Joined Cases 261 and may be summarized as follows: 262/78 Interquell Stärke Chemie & Co. KG and Diamalt A G v Council and Commission [1979] ECR 3045 and I — Facts and written procedure Joined Cases 64 and 1131/76, 167 and 239/78, 27, 28 and 45/79 Dumortier By judgments delivered on 19 October Frères SA and Others v Council and 1977 in Joined Cases 117/76 and 16/77 Commission [1979] ECR 3091, the Court Albert Ruckdeschel & Co. and Hansa- recognized the Community's liability Lagerbaus Ströh & Co. v Hauptzollamt under the second paragraph of Article Hamburg St. Annen; Diamalt AG v 215 of the Treaty as regards the period Hauptzollamt Itzehoe [1977] ECR 1753 prior to 19 October 1977. and Joined Cases 124/76 and 20/77 SA Referring to the above-mentioned Moulins et Huileries de Pont-à-Mousson v judgments, the applicant has claimed by Office National Interprofessionnel des way of compensation for damage Céréales; Société Providence Agricole de suffered the payment of the refunds Champagne v Office National Inter- which it ought to have received for the professionnel des Céréales [1977] ECR period prior to 19 October 1977 for the 1795, the Court of Justice found that the use or meal processed from maize legal position created by Regulations ("gritz"). On 23 November 1978 it Nos 1125/74 and 665/75 of the Council submitted an application to the Finance (Official Journal L 128 of 10 May 1974, Administration in Rome for the payment p. 12 and Official Journal L 72 of 20 of production refunds for maize groats March 1975) involving the repeal of the used in the brewing industry for the provisions for the grant of refunds for period from 4 April 1977 to 18 October quellmehl and gritz was incompatible 1977. On 22 January 1979 the Finance with the principle of equality because Administration in Rome rejected the the refunds were maintained in the application on the ground that there was competing sector of starch. no Community refund provided for the period in question. Following those judgments Council Regulations Nos 1125 and 1127/78 On 19 December 1979 the applicants (Official Journal L 142 of 30 May 1978, submitted an application to the Ministry pp. 23 and 24 respectively) supplemented of Agriculture and the Finance by the implementing Commission Regu­ Administration setting out its reasons in lation No 1570/78 (Official Journal L law and in fact for considering that it 185 of 7 July 1978, p. 22) re-established was entitled to compensation in lieu of equality between the products in the production refund in respect of a question but with retroactive effect to 19 consignment which it had imported to October 1977 only and not to the date the value of LIT 54 327 278 together of abolition of the refunds. with interest. By judgments delivered on 4 October On 15 April 1980 the applicant submitted 1979 in Case 238/78 Ireks-Arkady v a similar application directly to the Council and Commission [1979] ECR Commission of the EEC. By letter of 3 2955, Joined Cases 241, 242 and 245 to September 1980 sent to the Permanent

On 25 September 1980 the customs Order the European Economic Com­ office at Monfalcone forwarded the munity to pay the costs. Commission's reply to the applicant. The Council and the Commission of the The applicant brought this action on European Communities contend that the 9 March 1981. Court should: By interlocutory applications dated 15 April 1981 made pursuant to Article Dismiss the action as inadmissible 91 (1) of the Rules of Procedure of without considering the substance of the the Court of Justice the Council and case; the Commission of the European Communities raised an objection of Order the applicant to pay the costs. inadmissibility and asked the Court to decide that question without considering the substance of the case. III — Submissions and argu­ ments of the parties On 22 May 1981 the applicant lodged an answer to the interlocutory applications of the Council and Commission. The commencement of the five-year period of limitation in Article 43 of the Statute of Upon hearing the report of the Judge- the Court Rapporteur and the views of the Advocate General the Court decided to The Council and the Commission in their give a ruling on the objection of interlocutory applications of 15 April inadmissibility without considering the 1981 put forward the following substance of the case and to open the submissions and arguments: oral procedure without any preparatory inquiry. The Council refers to the fact that the Commission stated in a letter rejecting the claims for compensation made by the II — Conclusions of the parties applicants in Joined Cases 256, 257, 265, 267/80 and 5/81 Birra Wührer and The applicant claims that the Court Others v Council and Commission [1981] ECR 85 which were similar to the should: present claim, that the limitation period Order the European Economic Com­ began on the date of publication of the munity and, through it, the Council and regulations which originally abolished the Commission, to compensate the the refunds in question, that is to say 20 applicant for the damage caused to it as March 1975. In that respect the Council a result of the abolition of the stresses that the applicants in the above- production refunds in respect of maize mentioned cases, like the applicant in groats and meal used for the manu­ the present case, all submitted their facture of beer (which abolition was applications to the relevant institution of

the Community after 20 March 1980 so the commencement of the limitation that their applications must be period and the "event giving rise" to considered as having been submitted out non-contractual liability, that is to say, of time since the period of five years the origin of the damage. In other words after which proceedings are barred under the provision means that as from the Article 43 of the Statute of the Court time when it is certain that the person expired on 20 March 1980. concerned has suffered or will suffer damage the period of five years begins to run. That view implies that on the The Council observes that the applicant economic level there is a certainty of and the applicants in the other similar damage so far as the interests of the cases consider that the date from which party in question are concerned without time began to run for the purposes of the its being necessary, for the purposes of limitation period must be later and, in causing time to begin to run, for liability the present case, must be either the date to be established. of actual production of the quantities of goods giving rise to entitlement to refunds during the period in question or In other words it is necessary and the date of publication, namely 30 May sufficient that the person concerned was 1978, of Regulations Nos 1125 and fully aware or could or ought to have 1127/78, which did not establish the become so, as an informed and prudent legal basis for the payment of the trader, of the fact that his interests were refunds for the period between 1 August or would be affected and it is not 1975 and 18 October 1977. necessary for him to be certain that the damage will be made good, that is to say that the Community will have to accept liability for it under Article 215 of the The Council admits that theoretically it EEC Treaty. is possible to consider other dates as constituting the beginning of the limitation period, for example the date of The Council stresses that if the date of adoption of the regulations repealing the publication of the regulations which provisions providing for the grant of the abolished the refunds is taken as the refunds, the date on which the payment commencement of the period after which of refunds actually ceased or 4 October proceedings become barred, this may in 1979 when the Court held that the the present case meet the requirements in reintroduction of refunds not covering that regard of the national laws of the the period in question was unlawful. Member States.

expected of him to bring an action This interpretation is moreover not only against the latter. consistent with the wording of Article 43 In the Council's view it was clear, as of the Statute of the Court but is all the from the date of publication of the regu more compelling for reasons of legal lations abolishing the restrictions, that certainty because it makes it possible to those concerned would suffer some ascertain, in a particular case, a specific financial loss by not receiving the date, and one which is not arbitrary, for refunds in respect of their production the beginning of the limitation period. after the entry into force of the regu The other dates which might constitute

informed and prudent. It cites the judgment in Joined Cases 46 and 47/59 judgments of the Court in Cases 169/73 Meroni v High Authority [1967] ECR Compagnie Continentale France v Council 411, referred to by Mr Advocate General [1975] ECR 11 and 78/77 Firma Johann Reischl in his Opinion in Case 44/76, Lührs v Hauptzollamt Hamburg-Jonas mentioned above, does not conflict with [1978] ECR 169 as authorities for that that interpretation.

In those circumstances the Council states know for certain whether it has been or that it is not unreasonable to raise the will be incurred. plea that the applicant's action is time- barred for it has not acted with the The Council adds on the other hand that diligence which might legitimately be if it is accepted that time should begin to expected of it. run from the date of publication of Moreover the Council stresses that this is Regulations Nos 1125 and 1127/78 the attitude adopted by the Court in which omitted to reinstate the refunds those of its judgments in which it has with effect from the date on which they held to be admissible an action relating were abolished, actions in respect thereof to future damage, the cause of which would not be barred until 22 May 1983, was however certain (Joined Cases 56 to that is five years after the publication of 60/74 Kurt Kampffmeyer Mühlerverei- Regulations Nos 1125 and 1127, which nigung KG and Others v Commission and would mean that there would be a Council [1976] ECR 711). limitation period of almost eight years.

"Proceedings against the Community in The Council maintains that that matters arising from non-contractual conclusion is all the more compelling liability shall be barred after a period of since the Court has stressed in a five years from the occurrence of the consistent line of decisions that Article event giving rise thereto. The period of 215 of the EEC Treaty provides an limitation shall be interrupted if independent remedy which is not subject proceedings are instituted before the to the requirements that the other Court or if prior to such proceedings an remedies or means of legal protection application is made by the aggrieved afforded by the Treaty should first have party to the relevant institution of the been exhausted. Community . . .".

The Council nevertheless observes that In the Commission's view the parties, as one special circumstance is deserving regards the calculation of the limitation of consideration. According to its period, are not at issue on the dies ad application, the applicant did not begin quern, which can only be 15 April 1980, to product maize groats until April 1977 the date of the letter sent to the and the Council admits that it may be Commission by the applicant, which may wondered whether the applicant is not be regarded as the prior application by

JUDGMENT OF 27. 1 . 1982 — CASE 51/81

"Article 215 of the Treaty does not (a) the limitation period of five years prevent the Court from being asked to applies to proceedings brought declare the Community liable for against the Community in relation to imminent damage forseeable with non-contractual liability; and sufficient certainty even if the damage cannot yet be precisely assessed. To prevent even greater damage it may (b) the dies a quo is expressly defined as prove necessary to bring the matter that of the occurrence of the event before the Court as soon as the cause of giving rise to such proceedings. damage is certain. This finding is confirmed by the rules in force in the legal systems of the Member States, the Under the system established by Article majority, if not all, of which recognize 43 it is necessary therefore to identify the an action for declaration of liability time when, in relation to the specific based on future damage which is "event'-, the right to institute sufficiently certain." "proceedings" accrues.

Since the damage which could result interpreted in the light of the case-law of from the factual situation and the rules the Court already cited. In the second was imminent, the applicants could place the argument applies to this case reserve the right to specify the amount of the criteria generally applied to liability the damage which the Community would arising from an event which is unlawful have eventually to make good and in the strict sense. The Commission restrict themselves for the time being to observes that in the latter case if the asking for a finding of the Community's event giving rise to the damage and the liability." damage are not simultaneous but the damage becomes apparent after the event giving rise to it, the limitation period In the Commission's opinion the analog)' runs from the first moment when there is with the circumstances of the present awareness of the damage and that in case is obvious. It observes that if that itself constitutes a legitimate derogation case-law is compared with what has been on grounds of equity from the general stated above it is necessary to conclude principle. In such a case, on the one that since the cause of the action for hand, the damage is at the time of the damages accrued immediately after pub­ event simply a possibility and unfore­ lication of the unlawful measures, seeable and, on the other hand, it namely 20 March 1975, that date remains the direct consequence of the constituted the beginning of the event. limitation period relating to the action.

The Commission observes that in the first place that argument is incompatible Finally the Commission observes that if with the wording of Anicie 43 as this argument, which associates the

JUDGMENT OF 27. 1. 1982 — CASE 51/81

DE FRANCESCHI v COUNCIL AND COMMISSION

In the applicant's view, it appears from a The applicant adds that that conclusion reading of the Opinion that the is also suggested by the case-law of the Advocate General was obviously dis- Court. It observes that on the basis of posed to adopt the solution according to the distinction between the event and the which the limitation period begins at the damage the case-law has long indicated time when the damage becomes known that the limitation period begins to run but, however that may be, it is clear that

JUDGMENT OF 27. I. 1982 — CASE 51/81

In this case the "event" was a legislative In the applicant's view it is clear that act, namely Regulation No 665/75. with that provision the Council did not There was therefore a presumption that take all the measures necessary to that act was valid. Until the judgment of comply with the decisions of the Court 19 October 1977 the regulation could and that as a result of that failure the not be regarded as unlawful and could aggrieved parties had to institute not therefore give rise to an action or, in proceedings and the well-known other words, a right to compensation. decisions of the Court were given.

The second observation is based on the The applicant states however that what is effect rattorte tempons of the judgment of important in this case is the fact that in 19 October 1977. taking the necessary measures the Council relied on logical premises incompatible with the objections made In that respect the applicant, without by the Commissions to the applicant's expressing a view on the general problem claim. In that respect the applicant of the temporal effects of preliminary observes that the passage in Regulation rulings, puts forward two possible alter- No 1125/78 which sutes that the natives. According to the first, the

DE FRANCESCHI v COUNCIL AND COMMISSION

It says that the undertaking concerned in According to the applicant both express Case 245/78 SA Matsenes Benelux NV, principles which are part of the legal in which judgment was given on heritage of the Member Sutes and are 4 October 1979, had sold a product pertinently referred to in a study of the which was originally intended for uses pandects of the previous century for which refunds were not provided. Windscheid,, Diritto delle Pandette (Windscheid Pandette,, That undertaking was thus claiming translation,, Milan 1930 Italian translation 1930,, Vol Vol.. I, compensation for damage under another pp.. 366 pp 366,, 2 and 376 376,, 2). The applicant head. On the contrary in the present case states,, referring to legal writing then states the applicant has in fact produced the Ferrucci,, Della Tutela dei Diritti (Ferrucci Diritti,, in raw material for a use for which Commentario ài Codice Civile, Book IV, provision is made. This gives the Volume IV, Turin 1964, p. 394), that the applicant the right to refunds and it now two principles amount to fundamental claims compensation for the damage reasons of equity and that they cannot resulting from the fact that it has not therefore be disregarded in interpreting been able to receive the refunds Article 43 of the Statute without risking unlawfully abolished by the Council.

JUDGMENT OF 27. 1. 1982 — CASE 51/81

and a similar application sent to the In the present case that makes a total Commission on 15 April 1980 had no period of four months and ten days from effect on the expiration of the period of the last interruption of the period of limitation which the Council says took limitation on 19 December 1979, that is place on 20 March 1980. 29 April 1980. The Council points out that the applicant did not bring The Council observes that according to proceedings before the Court until the wording of Article 43 of the Statute 9 March 1981. of the Court approaches to the Italian authorities cannot produce such effect because Article 43 provides that the If the applicant were to maintain that its period of limitation is to be interrupted approach to the Commission on 15 April "if proceedings are instituted before the 1980 could have interrupted the period Court or if prior to such proceedings an of limitation the Council observes that it application is made by the aggrieved could be objected that the period had party to the relevant institution of the already expired 25 days previously.

regarded as an application by the aggrieved party to "the relevant The applicant observes that, assuming, institution of the Community" (Council contrary to the applicant's own opinion, or Commission) within the meaning of that the period of limitation runs from Article 43 of the Statute of the Court. the date of the contested regulation and was not suspended, it must be asked whether it was not for one reason or Accordingly the Council concludes that another interrupted before it expired. applications made by the applicant to the Italian authorities could not interrupt the period of limitation. In the applicant's view that question is justified by the inadequacies and defects Should the Court not agree with the in the drafting of Article 43 which were Council on that point, the Council relies stressed by Mr Advocate General Gand on another provision of Article 43 of the in Joined Cases 5, 7 and 13 to 24/66 Statute of the Court requiring an Kampffmeyer and Others v Commission

([1967] ECR 245 at p. 272) and again in having effects similar to those which the before-mentioned Opinion of Mr national rules, such as the provisions of Advocate General Reischl (Case 44/76). Article 2944 of the Italian Codice Civile, accord to the recognition of theright.By recognizing the right the regulation would have the effect of interrupting the period of limitation, assuming that the In the applicant's view, assuming that the period had begun, and of initiating a lacunae in Community law must be fresh period as from 22 May 1978. "filled" by analogy with the experience acquired in the national legal systems of the Member States, it must be considered above all that Regulation No 1125/78, also or at least, constitutes a recognition The applicant observes in addition that of the right by the institution against although it is true that it was only on which the right itself may be invoked. 24 April 1980 that it sent to the On 22 May 1978, by adopting Regu- Commission a claim for compensation lation No 1125/78, the Council which the Commission considered to be recognized that the previous rules had out of time because it was submitted wrongly abolished the refunds in more than five years after the date of question. Regulation No 665/75, the fact remains that the applicant also made a claim for compensation by letter sent to the Finance Administration in Rome on 23 November 1978 and by letters dated 19 December 1978 sent respectively to According to the applicant that the Minister for Finance and the recognition is expressed in the second Minister of Agriculture and, once again, and third recitals of the preamble to the to the Finance Administration. regulation in question which states, in the terms used by the Council, that the grant of the production refunds "constitutes a means of conforming with the Court's conclusions" on the illegality According to the applicant, although, in of Regulation No 665/75 and on the this case, those to whom the claim was duty of the Community institutions to sent are not the "relevant institution of take the necessary action to eliminate the the Community" to which the second consequences of the unlawful situation. sentence of Article 43 refers, it may on According to the applicant it is hardly the other hand be properly considered at necessary to point out that if the Council the very least that the Ministry of Agri- had wished to do so it could, by using culture of the Italian Republic fulfils more careful wording, have complied the functions delegated to it by the with the decisions of the Court whilst Community institutions responsible for maintaining in principle the view which it managing the agricultural markets, just had previously propounded. as in the sphere of the administration of justice the national courts are also Community courts, quite apart from the fact that the applicant's claims were of course forwarded to the Commission in The applicant concludes that in those its capacity as the institution which circumstances it would be reasonable to ought to have taken the appropriate steps consider Regulation No 1125/78 as in the case.

3 The defendants plead that the action is inadmissible because the applicant was out of time in submitting to the Commission its application for payment

DE FRANCESCHI v COUNCIL AND COMMISSION

of the refunds in respect of the period from 4 April to 19 October 1977. That application was made to the Commission on 15 April 1980.

4 The defendants contend that the commencement of the period of limitation laid down by Article 43 of the Statute of the Court must be taken as being the moment when it becomes possible to institute proceedings in matters arising from liability and that, moreover, according to the case-law of the Court such proceedings may be instituted when the damage may be considered to be imminent and foreseeable with sufficient certainty even though it cannot be precisely quantified except as the result of assessment at a later stage.

5 According to the defendants the commencement of the five-year period of limitation must be 20 March 1975, the date of publication of Regulation No 665 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 defendant's view, that the applicant could have brought its action as from 20 March 1975 since the publication of the unlawful regu- lation which was at the origin of the damage sustained by the applicant 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.

11 Accordingly, it may not be claimed, as against the applicant, that the period of limitation began before the date on which the injurious effects of the unlawful measure adopted by the Community were produced.

12 It follows from this, moreover, that the commencement of the period of limitation cannot be the date on which the unlawful measures adopted by the Community entered into force or, a fortiori, the date of their publication.

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

DE FRANCESCHI v COUNCIL AND COMMISSION

On those grounds,

THE COURT

OPINION OF MR ADVOCATE GENERAL CAPOTORTI

(see Joined Cases 256, 257, 265, 267/80 and 5/81, p. 108)