C-217/81

JUDGMENT OF 10. 6. 1982 — CASE 217/81

In Case 217/81

COMPAGNIE INTERAGRA SA, whose registered office is at 152 Avenue de Malakoff, Paris 16, represented by its Managing Director, Gustave Grandin, assisted by X. de Roux and C. H . Léger, Advocates at the Cour de Paris, with an address for service in Luxembourg at the Chambers of Jacques Loesch, 2 Rue Goethe, applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by F. Lamoureux, a member of its Legal Department acting as Agent, with an address for service in Luxembourg at the office of O. Montalto, a member of its Legal Department, Jean Monnet Building, Kirchberg, defendant,

APPLICATION for damages under Article 178 and the second paragraph of Article 215 of the EEC Treaty,

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

The facts of the case, the course of the d'Orientation et de Régularisation des procedure and the submissions and Marchés Agricoles [Agricultural Markets arguments of the parties may be Guidance and Stabilization Fund, here- summarized as follows: inafter referred to as "the French Fund"] for an advance-fixing certificate for 25 000 tonnes of butter and indicated that its application was to be considered I — Facts and written p r o c e d u r e in connection with Prodintorg's invitation to tender. /. History of the dispute On 19 November 1980 Interagra agreed By Regulation (EEC) No 2943/80 of 13 to Prodintorg's request to extend the November 1980 fixing the export refunds validity of its tender to 20 December on milk and milk products (Official 1980. Journal 1980, L 305, p. 27) the Commission fixed in advance the refunds On 20 November 1980 Commission on exports of butter to the Soviet Union Regulation (EEC) No 2993/80 of 19 to be carried out after 1 January 1981 at November 1980 temporarily suspending an amount varying between 113.41 and advance fixing of the export refund for 197.00 European currency units (here- butter and butter-oil (Official Journal inafter referred to as "ECU") per 100 1980, L 310, p. 18) entered into force. kilograms depending on fat content by That regulation suspended advance weight. fixing of export refunds until 27 November 1980 which date was On the same day on which that regu- extended to 11 December 1980 by lation was adopted the Soviet agency Commission Regulation (EEC) No V. O. Prodintorg of Moscow invited 3070/80 of 28 November 1980 (Official Interagra SA to participate in an inter- Journal 1980, L 322, p. 27). On 12 national invitation to tender for the December 1980 the Commission adopted delivery of 100 000 tonnes of butter and the first of a series of regulations (Regu- 15 000 tonnes of butter-oil between lation (EEC) No 3218/80, Official Januar>' 1981 and Februar)' 1982. The Journal 1980, L 334, p. 18) fixing the tenders had to be submitted to Pro- expon refunds on milk and milk dintorg by no later than 25 November products. Those regulations ceased to fix 1980 and were binding on the tenderers any refunds on exports of butter to the until 5 December 1980. Soviet Union.

expon certificates submitted after 17 tender in response to the international November 1980 were devoid of purpose call for tenders and that it is therefore and should be refused. After receiving a under an obligation to compensate request for confirmation made by the Prodintorg for the damage suffered by French Fund on 21 November 1980 the that agency because of its non- Commission confirmed its interpretation performance. in a telex message of 27 November. Interagra considers that the Commission On 28 November 1980 the French Fund is liable for the damage which it has informed Interagra that because of the incurred as a result of its obligation to Commission's decision to suspend indemnify Prodintorg and for the non- advance fixing of refunds from 20 to 27 material damage and damage to its November applications for certificates commercial reputation arising from its submitted after 17 November 1980 were non-performance of the contraa. devoid of purpose.

INTERAGRA v COMMISSION

for by Regulation No 2943/80 of 13 The Commission contends that the November 1980 to which it was entitled; decision to refuse the applications for export certificates was taken by the Declare and adjudge that the damage French intervention agency, namely the which it suffered as a result amounts in French Fund, in the exercise of its power total to FF 61 956 250; to implement, on its own responsibility, the Community rules on agriculture. In a consistent line of decisions the Court of Declare and adjudge that the Justice has held that it is for those Commission is liable in the matter concerned to contest decisions of because the French Fund was only an intervention agencies adopted in intermediary and simply acted on the implementation of the Community rules basis of the regulation and on the in- before their national courts and, if structions of the Commission; necessary, for the court seised of the matter to refer to the Court of Justice Declare and adjudge that Regulation No for a preliminary ruling questions 2993/80 adopted by the Commission on relating to the interpretation or validity 19 November 1980 offends against the of those rules. The applicant may not principle of legitimate expectation. circumvent the allocation of jurisdiction between the Court of Justice and national courts by bringing before the The Commission contends that the Court Court of Justice an action for damages should: which is really based on the alleged illegality of a measure adopted by a Dismiss the application as inadmissible or national administration which could have alternatively as unfounded; been challenged by an action for annulment before the national court Order the applicant to pay the costs. having jurisdiction in the matter. In support of its contention the Commission refers to passages in the Court's judgment of 5 December 1979 in Joined Cases 116 and 124/77 Amylum [1979] IV — Submissions and arguments ECR 3497 at p. 3560 and of 12 of the parties in the written December 1979 in Case 12/79 Wagner procedure [1979] ECR 3657 at p. 3671.

March 1980 not to be capable of It was not a case of the French Fund's incurring the liability of the Community. changing its mind but simply of its carrying out the instructions of the Commission. Besides, the French Fund considers itself to be bound b) We Commission's interpretation of • :t- munity regulations it only because í <·. In its reply the applicant states that financial risks which it would concurrently with the proceedings before under the rules of the European the Court it has brought an action cultural Guidance and Guarantee .

It contends November 1980 to the Directorate- that the real purpose behind the action is General for Agriculture shows that the to have the Court examine the validity of French Fund thought that the applicant's a decision adopted by a national rights could not be affected by the intervention agency in implementation of suspension of advance fixing by Regu- the common agricultural policy. It denies lation No 2993/80. The Commission that decision, which was one taken by a took the contrary view in its reply by national agency, was the result of way of telex message of 27 November instructions given by the Commission to and the French Fund then informed the the French Fund. The telex message sent applicant on 28 November that it could by the French Fund on 27 November not grant its application for a certificate. 1980 merely mentioned the applicant's

1. Interpretation of Regulation (EEC) No 2044/75 of the Commission of The applicant stresses the fact that the 25 July 1975 (Official Journal 1975, interpretation which the Commission L 213, p. 15) endeavoured to impose on the French Fund has since been achieved by means of the amendment of Regulation No 2044/75 by Commission Regulation Interagra takes the view that Article 3 (3) (EEC) N o 3137/80 of 4 December 1980 of Regulation No 2044/75, which (Official Journal 1980, L 329, p. 20). provides that in the case of butter the However, that amendment, made after export certificate is to be issued on the the date on which the application for a fifth working day following that on cerifícate was lodged, cannot affect which the application is lodged unless adversely the rights which the applicant special measures are taken in the enjoys under the rules in force on the intervening period, does not apply to day on which it lodged its application. cases in which the butter is to be exported in connection with an invitation to tender opened in an importing non- The applicant also contends that Article member country. That follows from 6 of Regulation No 2044/75 cannot be Article 6 of Regulation No 2044/75 understood as determining only the date which provides that in such cases the from which an issued certificate is to expon certificate "shall be valid from its have validity, leaving the date of issue to day of issue within the meaning of be determined in accordance with Article Article 9 (1) of Regulation (EEC) No 3 (3) of that regulation. Article 19 of

The Commission considers that the argument put forward by the applicant against the Commission's interpretation of Regulation No 2044/75 is based on a 2. Breach of the principle of legitimate confusion of the date of issue of the expectation certificate with the duration of its validity. Article 6 of Regulation No 2044/75 is concerned only with determining the duration of the validity of the certificate and cannot prevent The applicant claims that by abruptly applications for certificates from being suspending the fixing of refunds on refused under Article 3 (3) if the exports of butter to the Soviet Union Commission suspends the advance fixing Commission Regulation No 2993/80 of refunds in the period of five days disregarded the legitimate expectation following the day on which they are which traders were entitled to have that lodged. As regards Regulation No such refunds would be granted and on 3137/80, the Commission contends that the basis of which they had submitted its purpose is to clarify the scope of the firm tenders to the Soviet agency seventeenth amendment made to Regu- Prodintorg. The applicant acknowledges lation No 2044/75 by Commission Regu- that the Commission enjoys a wide lation No 3105/80 (Official Journal discretion in such matters but in its view 1980, L 312, p. 24), which reduces the that does not entitle the Commission to duration of validity of certificates issued ignore the legitimate interests of traders in connection with invitations to tender. who have entered into commitments in Moreover Regulation No 3137/80 may the light of a well-considered and plainly not be constituted as extending the expressed policy of the Commission. In waiting period laid down in Article 3 (3) that regard, the applicant reminds the of Regulation No 2044/75 to appli- Court that during the greater part of cations for certificates submitted in 1980 the Commission pursued a policy connection with invitations to tender of restricting butter exports to the Soviet because that period was applied to such Union, which had already drawn applications from the time when the criticism from the European Parliament, system of monitoring the advance fixing that on 23 October 1980 it restored the of refunds was introduced by Regulation rate of refund to 160 ECU per 100 kg No 445/77 of 2 March 1977 (Official for all destinations, including the Soviet

Union, that that decision was suspended been less damaging and perhaps tolerable on 11 November 1980 mainly because of for the traders concerned. the volume of applications for advance- fixing certificates and that, finally, it was re-introduced on 14 November 1980 but with a reduced refund of 150 ECU per 100 kg. From those facts the applicant In reply to the applicant's contention concludes that on 14 November 1980 the that it offended against the principle of Commission was well aware of the legitimate expectation the Commission market situation and of the possibility, argues first that the applicant had no indeed even the probability, that it would vested right in the export refund receive applications relating to a subs- prevailing on the day of its application. tantial volume of exports to the Soviet Such a right does not arise until the fifth Union and that the reaction of the working day following that on which the European Parliament would be unfav- application was lodged, as is stated in ourable. Accordingly Regulation N o Article 3 (3) of Regulation N o 2044/75, 2993/80 cannot be attributed to a as there are no special rules governing sudden change in the market due to an applications for certificates submitted in abnormally high influx of applications connection with invitations to tender for certificates, especially as the opened in a non-member country. The applications for advance-fixing certi- Commission also believes that the ficates related to quantities to be suspension measure was quite fore- delivered in 1981, a year in which it was seeable. It never made any secret of its clearly impossible to foretell, at that intention to monitor exports as closely as time, whether the normal volume of possible in order not to allow traders to trade would be exceeded. According to obtain unjustified advantages at the the applicant, the origin of Regulation expense of the Community budget. In No 2993/70 is to be found in a motion view of the substantial profits anticipated for an emergency debate tabled in the by traders from Prodintorg's invitation European Parliament on 18 November to tender announced on 13 November 1980 by 30 or so of its members. The 1980 and relating to substantial Commission changed its policy to take quantities it was therefore reasonably account of that development, first by foreseeable that speculative operations suspending advance fixing of refunds in would be mounted and that a measure Regulation No 2993/80, then by would consequently be adopted to discontinuing the grant of refunds on suspend the advance fixing of refunds, exports of butter to the Soviet Union. especially as the situation had been the same under Regulation No 2697/80, which had fixed refunds valid from 1 January 1981 and had had to be suspended from 12 to 14 November 1980 (Regulation No 2913/80, Official Journal 1980, L 302, p. 17).

exports, and this posed a serious threat above Article 6 and not Article 3 (3) of to the equilibrium of the market. Regulation No 2044/75 applies in its Between 17 and 19 November 1980 case, submits that it acquired an applications had reached a figure of incontestable right to the export certifi­ 352 555 tonnes, a figure which, cates fixing the refunds in advance once according to the Commission, showed it proved that it had been awarded a that the refunds, although reduced, were contraa. As regards the question still too high and that if such large whether the measure was foreseeable the quantities were exported the equilibrium applicant stresses that, although there of the market might be imperilled. had already been three periods in 1980 Moreove- subsequent developments on in which advance fixing had been the wor market showed how right the suspended (from 12 January to 1 Commi 3ΐ· had been to be prudent February, from 13 to 15 May and from because • :> : 1981 butter stocks fell so low 12 to 14 November), they were that if it hid been necessary in the first separated by intervals of several months few months of 1981 to meet export and it was hardly foreseeable, therefore, contracts for a quantity of 100 000 that only five days after altering the rate tonnes a temporary deficit would have of refund and re-adjusting it to the occurred in the Community in the spring market the Commission would again and prevented it from maintaining its suspend the advance fixing of refunds, relations with its long-standing cus­ particularly as speculative operations are tomers. The Commission therefore exer­ not possible where an invitation to cised its discretion at the right time. It tender is concerned because each par­ was not therefore guilty of misconduct, ticipant irrevocably fixes the price and manifest error or any unlawful act quantity proposed in his tender whilst capable of incurring the liability of the the buyer fixes in advance the toul Community. quantity of butter which he wishes to buy.

applicant believes that the figure of to tender which were submitted between 320 000 tonnes given by the Commission 17 and 19 November were for a should be compared with the minimum considerable quantity, namely 73 534 acceptable, which is 120 000 tonnes or tonnes, and demonstrate that the rate of the equivalent of one month's refund was too high. consumption. Stocks below that figure had not, moreover, prevented the Commission, in 1973, from considering the sale of 200 000 tonnes of butter to the Soviet Union. What is more, the Commission could not have been taken As regards the existence of an overriding by surprise by Prodintorg's invitation to public interest, the Commission disputes tender in respect of 100 000 tonnes of that the deliveries to Prodintorg were butter because the Soviet Union had spread over a period from January 1981 already imported similar quantities in the to February 1982. The contracts previous years, namely 135 000 tonnes in concluded by Prodintorg, particularly 1979 and 150 000 tonnes in 1980. that with Interagra, show that most of Besides, the Soviet Union is a long- the deliveries were to be made from standing customer of the Community January to May 1981. The Commission and it ill becomes the Commission to contend as justification for suspending also considers that toul real demand for refunds on exports to that country that it butter for export, which had risen to at was necessary to maintain its relations least 198 534 tonnes in November 1980 with such customers. In conclusion the and not 193 000 tonnes as asserted by applicant contends that Regulation No the applicant, was likely to cause a 2993/80 was adopted under pressure serious imbalance on the market whilst from the European Parliament for butter stocks, which were already reasons which had nothing technical running low, would fall to 45 000 tonnes about them. in March 1981. The situation was -not comparable with that in 1973 because in November 1980 stocks were in any event lower than in May 1973. As for the Soviet Union being a "long-sunding customer", the Commission points out that although the Soviet Union bought a large quantity of butter in 1973 it did not In its rejoinder the Commission import any or hardly anv butter in 1971, contends, as regards the question 1972, 1974, 1975 or 1976 whilst exports whether the suspension measure was of butter from the Community to non- foreseeable, first that it is not true that member countries have consistently and speculative action is not possible where considerably increased since 1973. invitations to tender are concerned because there is nothing to prevent the agency of a non-member country from changing the toul quantity originally specified in such a way that a quantity larger than that announced in the The Commission therefore maintains invitation to tender leaves the that if it had not suspended the advance Community, and secondly that even on fixing of refunds there would have been the view that no speculation is possible a real risk that the Community's where invitations to tender are available stocks, which were declining, concerned, nevertheless the applications would be insufficient to meet its for certificates not related to invitations commitments, both internal and external,

Amount due to Prodintorg by way of compensation for the damage suffered by The Commission also contests the it owing to the non-performance of the applicant's method of quantifying the contraa; damage. An expert's report would be needed to determine the exact price at which Prodintorg bought supplies on the Non-material damage; world market. For the rest, there are no grounds for claiming compensation for non-material damage because the Commercial loss equivalent to the profit Community's action has not injured the anticipated from the transaction. applicant's reputation or standing. Finally, the Commission considers that where transactions of this kind are That damage is real and not uncertain concerned the Community is not and arose when, once the refunds were required to make good commercial loss actually refused and the applicant found because "the purpose of Community that it was impossible to perform the regulations... is not to eliminate the contraa without incurring considerable risks to traders which are inherent in any loss, the issue of the applicant's liability commercial activity". under the contract was raised. The damage is unavoidable and cannot be mitigated because the applicant has In its reply the applicant contends that it already reduced it by a substantial extent decided not to have recourse to arbi- by incurring liability for non-per- tration in order to keep the dispute formance instead of performing the within reasonable limits and thus avoid contract without refunds. There is no aggravating the damage. It also admits way by which it can escape its con- that the damage which it suffered is not tractual liability. special, inasmuch as many traders were affeaed by the refusal of applications for certificates lodged in connection with The Commission contests that the invitations to tender. However, that damage is certain on the ground that the admission does not prevent it from contract between Prodintorg and claiming compensation for its own direct Interagra made provision for arbitration, loss, which was not due to its own fault to which apparently recourse has not as the period of five working days which

Decision

1 By application lodged at the Coun Registry on 20 July 1981 the undertaking Compagnie Interagra SA brought an action under Article 178 and the second paragraph of Article 215 of the EEC Treaty for compensation in the sum of FF 61 956 250 for the damage which, it says, it suffered as the result of the adoption of Commission Regulation (EEC) N o 2993/80 of 19 November 1980 temporarily suspending advance fixing of the export refund for butter and butter-oil (Official Journal 1980, L 310, p. 18) by virtue of which the applicant was refused a refund, to which it believed that it was entitled, in

JUDGMENT OF 10. 6. 1982 — CASE 217/81

respect of a contract concluded pursuant to an invitation to tender for the delivery of butter to the Soviet Union and as the result of instructions given by the Commission regarding the implementation of that regulation.

2 In response to an invitation to tender issued by the Soviet agency V. O. Prodintorg, Moscow, (hereinafter referred to as "Prodintorg") on 17 No- vember 1980 the applicant submitted a tender to that agency for 25 000 tonnes of butter in reliance on the rate of refund fixed by Commission Regulation (EEC) No 2943/80 of 13 November 1980 (Official Journal 1980, L 305, p. 27). The tender was valid until 20 December 1980. On the very day on which it submitted its tender the applicant lodged an application with the French intervention agency, the Fonds d'Orientation et de Régularisation des Marchés Agricoles [Agricultural Markets Guidance and Stabilization Fund, hereinafter referred to as "the French Fund"] for an advance-fixing certificate for 25 000 tonnes of butter.

6 After it had accepted the applicant's tender on 10 December 1980 Prodintorg served formal notice on the applicant on 9 January 1981 requiring it to perform its obligation to supply the products in question. By this application the applicant seeks compensation from the Commission for the damage which it has allegedly suffered as the result of the application of instructions given by the Commission and of the Community rules. The damage is alleged to consist of the loss incurred by Prodintorg which the applicant must make good, and the non-material damage and loss of profit incurred by the applicant itself.

Admissibility

7 The Commission contests the admissibility of the application. It contends, in this respect, that the two telex messages which it sent to the French Fund have no legislative force but merely constitute statements and communi- cations of information which cannot by themselves bind national bodies because those bodies apply Community law on their own responsibility. According to the Commission, it follows that the decision to refuse the applications for expon cenificates was adopted by the French intervention agency and it is for those concerned to contest such a decision before the national courts which if necessary may refer questions to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty.

8 In its judgment of 27 March 1980 in Case 133/79 Sucrimex [1980] ECR 1299 the Court had the occasion to record that the application of Community provisions on export refunds is a matter for the national bodies

11 The application must therefore be dismissed as inadmissible.

Costs

1: Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party's pleading. As the applicant has failed in its action it must be ordered to pay the costs.

INTERAGRA v COMMISSION

On those grounds,

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

O P I N I O N O F MR ADVOCATE GENERAL VERLOREN VAN THEMAAT DELIVERED O N 13 MAY 1982 '

Mr President, Interagra's arguments on the substance Members of the Court, of the case. Although it was my opinion in Case 45/81 Moksei, which is comparable in subject-matter, that the 1. Introduction action in that case is admissible, I consider that this action is manifestly My opinion in this case, Interagra, can inadmissible. To demonstrate this I shall be relatively short. I shall not examine, first summarize the facts and the except in the most cursory fashion, submissions supporting the claim for I — Translated trom the Dutch.