T-226/94

Commission of the European Communities, represented by Gérard Rozet, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of the Legal Service, Wagner Centre, Kirchberg,

defendant,

A P P L I C A T I O N for compensation for the damage allegedly suffered by the appli- cant following suspension of the arrangements for the buying-in of butter by the intervention agencies from 11 January 1991 to 26 February 1991,

* Language of the case: French.

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JUDGMENT OF 21. 6. 1996 — CASE T-226/94

Legislative background

1 Under Article 6(1) of Regulation (EEC) N o 804/68 of the Council of 27 June 1968 on the common organization of the market in milk and milk products (OJ, English Special Edition 1968(I), p. 176), the intervention agency designated by each Mem- ber State is under an obligation to buy in all butter offered to it.

2 Article 1 of Council Regulation (EEC) N o 777/87 of 16 March 1987 modifying the intervention arrangements for butter and skimmed-milk powder (OJ 1987 L 78, p. 10) provides that the buying-in of butter may be suspended when the quantities

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offered for intervention exceed 180 000 tonnes (Article 1(1)) and that, by way of an alternative arrangement, butter may be bought in under a standing invitation to tender (Article l(3)(a)), in accordance with detailed rules laid down by Commis­ sion Regulation (EEC) N o 1589/87 of 5 June 1987 on the sale by tender of butter to intervention agencies (OJ 1987 L 146, p. 27).

6 During the period from 11 January 1991 to 26 February 1991, although Regulation N o 1772/87 was in force, the applicant ('Dischamp') offered the French interven- tion agency — on 11 and 22 January and on 6, 8, 12, 22 and 26 February 1991 — consignments of butter totalling 1 968 000 kg, which it hoped to sell at the inter- vention price.

7 By letters of 17 January and 1 February 1991, the intervention agency informed Dischamp that it could not take those offers of butter into consideration because the standing intervention arrangements had been suspended and, pursuant to Regu- lation N o 1589/87, replaced by a standing invitation to tender.

8 Dischamp therefore had to sell a large quantity of that butter under the tendering procedure.

Procedure and forms of order sought

9 By application lodged at the Registry of the Court of First Instance on 9 June 1994, Dischamp brought the present proceedings.

10 Upon hearing the report of the Judge-Rapporteur, the Court (Fifth Chamber) decided to open the oral procedure without any preparatory inquiry. However, it asked the Commission, by way of measures of organization of procedure, to pro- duce certain documents and to answer two written questions.

— order the Commission to pay the costs of the procedure.

13 The Commission contends that the Court should:

— dismiss the application as unfounded;

— order the applicant to pay the costs.

1 4 In its rejoinder, the Commission asks the Court to declare inadmissible, by reason of their confidential nature, certain internal working documents produced by Dis- champ in annex to its reply.

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17 The Commission contends that the conditions for applying the standing interven- tion arrangements were not satisfied, since at times the price of butter on the French market rose to 92.01% of the intervention price and was therefore higher than 92%, and at other times the price was below the 92% threshold but never- theless higher than 90% at times when butter stocks exceeded 275 000 tonnes.

— The degree of accuracy of the market price percentage

18 By way of a contrary inference from the fact that the percentages quoted in Regu- lation N o 1547/87 are expressed as whole numbers — while under Commission

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Regulation (EEC) N o 3578/88 of 17 November 1988 laying down detailed rules for the application of the system for the automatic dismantlement of negative mone­ tary compensatory amounts (OJ 1988 L 312, p. 16) figures are to be calculated to six decimal places — Dischamp argues that the Commission was not entitled to calculate that percentage to the degree of accuracy of two decimal places. Further­ more, the figures given in a table drawn up by the Commission, summarizing cur­ rent butter prices in the Member States, are all expressed to one decimal place. In the present case, if the Commission had based its calculations on a percentage fig­ ure rounded off to the nearest whole number or expressed to one decimal place, the conditions for resuming the standing intervention arrangements would have been satisfied.

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stocks communicated by the Member States pursuant to Regulation (EEC) N o 210/69 of the Commission of 31 January 1969 on communications between Member States and the Commission with regard to milk and milk products (OJ, English Special Edition 1969(1), p. 28), Dischamp maintains that the stocks to be taken into consideration did not reach the 275 000 tonnes ceiling until the end of February 1991. Consequently, the Commission should have resumed the standing intervention arrangements earlier.

21 Furthermore, Dischamp criticizes the Commission for having included in its cal- culation of the stocks quantities of butter which were accepted under the tendering procedure after the reference period for that calculation. For example, when cal- culating the actual stocks for the week from 4 to 10 February 1991, the Commis- sion included 21 332 tonnes of butter which were accepted under the tendering procedure on 14 February 1991.

22 The Commission states that it calculates butter stocks on the basis of the volume of actual stock at the end of each month — as communicated to it by the Member States — with the addition of quantities accepted in the interim period under ten- ders under the management committee procedure, but with the deduction of quan- tities released from stock.

Findings of the Court

25 Secondly, the Court notes that Regulation N o 1180/90 fixing the intervention prices for butter for the 1990/91 milk year quotes prices in ecus expressed to two decimal places, and that Article 4 of Regulation N o 1547/87 requires the Commis­ sion to compare the market price with the intervention price in order to establish the percentage of the intervention price represented by the market price.

26 The Court considers that those two prices can be validly compared only if they are expressed to the same degree of accuracy. However, as the Commission rightly pointed out, the range of figures corresponding to the percentage rounded off to a whole number, as quoted in the regulation concerned, would span almost E C U 3.

27 As regards the table produced by Dischamp, it is true that the figures therein are expressed to only one decimal point, but the fact remains that, as the Commission pointed out at the hearing, that document is a purely internal summary table for purposes which do not require accuracy to two decimal points.

28 Lastly, the Court finds that Dischamp's argument on the basis of a monetary regu­ lation is not relevant, given that a regulation dealing with monetary matters has no bearing on the fixing of official prices in the agricultural sector.

29 In the light of the above, the Court concludes that the Commission was fully enti­ tled to calculate the relationship between the market price and the intervention price in figures accurate to two decimal places.

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32 In the Court's view, the term 'actual stocks of butter held by intervention agencies' in the second subparagraph of Article 1(4) of Regulation N o 777/87 does not pre- clude taking into account quantities of butter accepted under the tendering pro- cedure but not yet put into store, since, as the Commission pointed out at the hearing, the objective of removing butter from the market in order to cause prices to rise is attained as soon as the intervention agencies buy in surplus quantities. Also, the wording of that provision does not rule out the possibility of the quan- tities bought being held by an intermediary acting for a third party. Consequently, the Court considers that the Commission was not at fault, when calculating the actual stocks, in including the quantities of butter bought by the intervention agen- cies under the tendering procedure, irrespective of when they were put in the agen- cies' stores.

33 The Court considers that the errors which Dischamp has pointed out in the Com- mission's calculations (see above, paragraph 21) do not affect the fact that the actual

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stocks, updated as described above, exceeded 275 000 tonnes throughout the period when the market price was at a level equal to, or less than, 92% of the intervention price. In those circumstances, the Commission cannot be accused of wrongful or unlawful conduct, since the conditions laid down in Article 1 (4) of Regulation N o 777/87 and Article 1(2) of Regulation N o 1547/87 for the resumption of the buying-in of intervention butter — as provided for in Article 6(1) of Regulation N o 804/68 — were never satisfied during the period at issue.

— FF 59 515 by way of financing costs for the lost earnings and the cost of stor­ ing the butter, resulting from the fact that sales by tender are twice-monthly and not daily, as under the standing intervention arrangements;

— loss of earnings through being unable under the tendering procedure to sell all quantities of butter offered, as is possible under the standing intervention arrangements.

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JUDGMENT OF 21. 6. 1996 — CASE T-226/94

37 According to Dischamp, the damage is real, certain and serious and exceeds the limits of economic risk inherent in the activities of the sector concerned. By main- taining in force Regulation N o 1772/87 during the period at issue, the Commission infringed Dischamp's established rights under Regulation N o 777/87 and breached the principle of the protection of legitimate expectations.

38 The Commission maintains that it strictly complied with the applicable regulations and contends that the action for damages should be rejected. In the alternative, the Commission submits that the application as a whole has been insufficiently sub- stantiated. In particular, it points out that Dischamp failed to establish that the consignments of butter which, during the period at issue, it sold on the market and not by tender, met the conditions for intervention buying-in, and queries the accu- racy of the assessment of the financing and storage costs constituting the second head of alleged damage.

Costs

42 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicant has been unsuccessful in its pleadings, it must be ordered to bear its own costs and pay those incurred by the Commission.

O n those grounds,

T H E C O U R T O F FIRST INSTANCE (Fifth Chamber)

hereby:

1. Dismisses the application;