1 THE APPLICANTS IN THESE CASES REQUEST THAT THE EUROPEAN ECONOMIC COMMUNITY , REPRESENTED BY THE COUNCIL AND THE COMMISSION , BE ORDERED , PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY , TO COMPENSATE THEM FOR THE LOSS WHICH THEY CLAIM TO HAVE SUFFERED ON ACCOUNT OF THE ABOLITION OF THE PRODUCTION REFUNDS FOR QUELLMEHL AS A RESULT OF REGULATION NO 1125/74 OF THE COUNCIL OF 29 APRIL 1974 AMENDING REGULATION NO 120/67 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OFFICIAL JOURNAL 1974 , L 128 , P . 12 ).
2 THE CASES WERE JOINED FOR THE PURPOSE OF THE PROCEDURE AND IT IS APPROPRIATE TO MAINTAIN THE JOINDER FOR THE PURPOSE OF THE JUDGMENT .
3 IN ITS JUDGMENT OF 19 OCTOBER 1977 DELIVERED PURSUANT TO A REFERENCE FOR A PRELIMINARY RULING FROM THE FINANZGERICHT HAMBURG IN JOINED CASES 117/76 AND 16/77 RUCKDESCHEL & CO . V HAUPTZOLLAMT HAMBURG-ST . ANNEN AND DIAMALT AG V HAUPTZOLLAMT ITZEHOE ( 1977 ) ECR 1753 , THE COURT RULED THAT THE DISPUTED PROVISIONS OF THE COUNCIL REGULATIONS WERE INCOMPATIBLE WITH THE PRINCIPLE OF EQUALITY IN SO FAR AS THEY PROVIDED FOR QUELLMEHL AND PRE-GELATINIZED STARCH TO RECEIVE DIFFERENT TREATMENT IN RESPECT OF PRODUCTION REFUNDS . THE COURT SAID FURTHER THAT IT WAS FOR THE INSTITUTIONS COMPETENT IN MATTERS OF COMMON AGRICULTURAL POLICY TO ADOPT THE MEASURES NECESSARY TO CORRECT THAT INCOMPATIBILITY .
4 FOLLOWING THAT JUDGMENT PRODUCTION REFUNDS FOR QUELLMEHL INTENDED FOR USE IN THE BAKERY INDUSTRY WERE RE-INTRODUCED BY COUNCIL REGULATION NO 1125/78 OF 22 MAY 1978 AMENDING REGULATION NO 2727/75 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OFFICIAL JOURNAL 1978 , L 142 OF 30 MAY 1978 , P . 21 ). THE AMOUNT OF THE REFUNDS WAS FIXED BY COUNCIL REGULATION NO 1127/78 ADOPTED AND PUBLISHED ON THE SAME DATE AS REGULATION NO 1125/78 ( OFFICIAL JOURNAL 1978 , L 142 , P . 24 ). BOTH REGULATIONS ENTERED INTO FORCE ON THE THIRD DAY FOLLOWING THEIR PUBLICATION IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES . HOWEVER , PURSUANT TO THE LAST PARAGRAPH OF ARTICLE 1 OF REGULATION NO 1125/78 AND ARTICLE 6 OF REGULATION NO 1127/78 , THE REFUNDS WERE GRANTED AT THE REQUEST OF THE INTERESTED PARTY AS FROM 19 OCTOBER 1977 , THAT IS TO SAY WITH RETROACTIVE EFFECT FROM THE DATE OF THE JUDGMENT OF THE COURT IN THE ABOVE-MENTIONED PRELIMINARY RULINGS .
5 THUS THE OBJECT OF THE APPLICANTS ' CLAIM IS TO OBTAIN COMPENSATION FOR THE DAMAGE WHICH THEY CLAIM TO HAVE SUFFERED AS A RESULT OF THE ABSENCE OF REFUNDS DURING THE PERIOD BETWEEN 1 AUGUST 1974 , ON WHICH DATE REGULATION NO 1125/74 WAS FIRST APPLIED , AND 19 OCTOBER 1977 . THE ALLEGED DAMAGE CONSISTS IN THE LOSS OF RECEIPTS EQUAL TO THE AMOUNTS OF THE REFUNDS WHICH WOULD HAVE BEEN PAID TO THE APPLICANTS IF QUELLMEHL HAD BENEFITED FROM THE SAME REFUNDS AS STARCH .
ADMISSIBILITY
6 THE COUNCIL AND THE COMMISSION , THE DEFENDANTS , OBJECT THAT IN ORDER TO OBTAIN THE REFUNDS CLAIMED THE APPLICANTS SHOULD HAVE BROUGHT AN ACTION FOR PAYMENT OF THE REFUNDS AGAINST THE COMPETENT NATIONAL BODIES IN THE NATIONAL COURTS . HOWEVER , THAT OBJECTION CANNOT BE UPHELD . ALTHOUGH IT IS TRUE THAT AN ACTION FOR THE PAYMENT OF AMOUNTS DUE UNDER COMMUNITY REGULATIONS MAY NOT BE BROUGHT UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY , THE CLAIMS SUBMITTED BY THE APPLICANTS IN THIS CASE CANNOT BE CLASSED AS CLAIMS FOR THE PAYMENT OF AMOUNTS DUE , BUT RATHER AS CLAIMS FOR COMPENSATION FOR THE ALLEGED DAMAGE RESULTING FROM THE UNLAWFULNESS ESTABLISHED BY THE JUDGMENT OF THE COURT OF 19 OCTOBER 1977 . IN THE CIRCUMSTANCES OF THE CASE , MOREOVER , IT IS CLEAR THAT , PURSUANT TO THE SAID JUDGMENT OF THE COURT , A NATIONAL COURT COULD NOT HAVE UPHELD SUCH AN ACTION IN THE ABSENCE OF ANY PROVISION OF COMMUNITY LAW AUTHORIZING THE NATIONAL BODIES TO PAY THE AMOUNTS CLAIMED .
7 THE SAME CONSIDERATIONS APPLY TO THE COMMISSION ' S OBJECTION THAT THE REAL OBJECT OF THE APPLICATIONS , NAMELY THE PAYMENT OF THE REFUNDS NOT GRANTED , MAY BE ACHIEVED ONLY BY THE ADOPTION OF A NEW REGULATION AND THAT . SINCE THE APPLICANTS MAY NOT PURSUE SUCH AN OBJECTIVE BY MEANS OF THE ACTIONS PROVIDED FOR IN ARTICLES 173 AND 175 OF THE EEC TREATY , THEY ARE EQUALLY UNABLE TO DO SO BY MEANS OF THE ACTION FOR DAMAGES UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 . IN FACT , AS THE COURT HAS DECLARED ON REPEATED OCCASIONS , THE LATTER ACTION WAS SET UP AS AN INDEPENDENT REMEDY . THUS THE CLAIMS SUBMITTED BY THE APPLICANTS MUST BE CONSIDERED BY WAY OF THAT ACTION AND MAY BE UPHELD , IF THEY ARE WELL FOUNDED , WITHOUT ITS BEING NECESSARY FOR THE DEFENDANTS TO ADOPT NEW LEGISLATIVE MEASURES .
SUBSTANCE
8 BY ITS JUDGMENT OF 19 OCTOBER 1977 , THE COURT ESTABLISHED THAT THE ABOLITION OF THE REFUNDS FOR QUELLMEHL AS FROM 1 AUGUST 1974 , TOGETHER WITH THE RETENTION OF THE REFUNDS FOR PRE-GELATINIZED STARCH , WAS INCOMPATIBLE WITH THE PRINCIPLE OF EQUALITY . THE SCOPE OF THAT FINDING OF UNLAWFULNESS WAS THE SUBJECT OF ARGUMENT BETWEEN THE PARTIES TO THE PRESENT CASES . THE COUNCIL AND THE COMMISSION MAINTAIN THAT THE ABOLITION OF THE REFUNDS FOR QUELLMEHL WAS RECOGNIZED TO BE UNLAWFUL ONLY AS REGARDS THE MANUFACTURE OF QUELLMEHL INTENDED FOR USE IN THE BAKERY INDUSTRY . MOREOVER , THE SAME CONCEPTION IS BEHIND COUNCIL REGULATIONS NOS 1125/78 AND 1127/78 , WHICH REINTRODUCED THE REFUNDS ONLY AS REGARDS THE QUELLMEHL INTENDED FOR THAT USE . THE APPLICANTS MAINTAIN THAT EQUALITY OF TREATMENT WITH PRE-GELATINIZED STARCH MUST BE ENSURED FOR QUELLMEHL IRRESPECTIVE OF THE USE TO WHICH IT IS PUT , THAT IS TO SAY NOT ONLY FOR QUELLMEHL INTENDED FOR HUMAN CONSUMPTION IN GENERAL , BUT ALSO FOR THAT USED AS AN INGREDIENT OF ANIMAL FEED .
9 IN ITS JUDGMENT OF 28 MARCH 1979 , CASE 90/78 GRANARIA BV V COUNCIL AND COMMISSION , THE COURT HELD THAT IN ESTABLISHING BY ITS JUDGMENT OF 19 OCTOBER 1977 IN JOINED CASES 117/76 AND 16/77 THAT THE ABOLITION OF THE REFUNDS WAS UNLAWFUL , IT CONSIDERED THAT THE PRINCIPLE OF EQUALITY HAD BEEN BREACHED TO THE DETRIMENT OF THE PRODUCERS OF QUELLMEHL ONLY ON THE ASSUMPTION THAT QUELLMEHL WAS PUT TO ITS TRADITONAL USES IN FOOD FOR HUMAN CONSUMPTION . THE TRADITONAL USE OF QUELLMEHL , AS IT HAD BEEN EXPLAINED IN THE COURSE OF THE PROCEDURE IN THE ABOVE-MENTIONED CASES , WAS LIMITED TO BREAD-MAKING , WHERE IT SERVED AS AN ADDITIVE TO PRODUCTS BASED ON RYE FLOUR . THAT TRADITONAL USE EXPLAINED WHY QUELLMEHL , AS THE COURT RECALLED IN ITS JUDGMENT , HAD BENEFITED FROM PRODUCTION REFUNDS IN GERMANY SINCE 1930 AND IN THE COMMUNITY SINCE THE FIRST COMMON ORGANIZATION OF THE MARKET IN CEREALS .
10 IT FOLLOWS THAT IS ONLY AS REGARDS THE QUELLMEHL USED FOR BREAD-MAKING THAT THE ABOLITION OF THE PRODUCTION REFUNDS FOR QUELLMEHL WAS INCOMPATIBLE WITH THE PRINCIPLE OF EQUALITY FOR THE REASONS ACCEPTED BY THE COURT IN ITS JUDGMENT OF 19 OCTOBER 1977 .
11 THE PROBLEM WHICH THEN ARISES IS WHETHER THE UNLAWFULNESS THUS ESTABLISHED IS OF SUCH A NATURE AS TO RENDER THE COMMUNITY LIABLE UNDER THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY .
12 THE FINDING THAT A LEGAL SITUATION RESULTING FROM THE LEGISLATIVE MEASURES OF THE COMMUNITY IS UNLAWFUL IS NOT SUFFICIENT IN ITSELF TO GIVE RISE TO SUCH LIABILITY . THE COURT HAS ALREADY EXPRESSED THAT VIEW IN ITS JUDGMENT OF 25 MAY 1978 IN JOINED CASES 83/76 AND OTHERS BAYERISCHE HNL VERMEHRUNGSBETRIEBE AND OTHERS V COUNCIL AND COMMISSION ( 1978 ) ECR 1209 . IN THIS REGARD , THE COURT RECALLED ITS SETTLED CASE-LAW , ACCORDING TO WHICH THE COMMUNITY DOES NOT INCUR LIABILITY ON ACCOUNT OF A LEGISLATIVE MEASURE WHICH INVOLVES CHOICES OF ECONOMIC POLICY UNLESS A SUFFICIENTLY SERIOUS BREACH OF A SUPERIOR RULE OF LAW FOR THE PROTECTION OF THE INDIVIDUAL HAS OCCURRED . TAKING INTO CONSIDERATION THE PRINCIPLES IN THE LEGAL SYSTEMS OF THE MEMBER STATES GOVERNING THE LIABILITY OF PUBLIC AUTHORITIES FOR DAMAGE CAUSES TO INDIVIDUALS BY LEGISLATIVE MEASURES , THE COURT SAID THAT IN THE CONTEXT OF COMMUNITY PROVISIONS IN WHICH ONE OF THE CHIEF FEATURES WAS THE EXERCISE OF A WIDE DISCRETION ESSENTIAL FOR THE IMPLEMENTATION OF THE COMMON AGRICULTURAL POLICY , THE COMMUNITY DID NOT INCUR LIABILITY UNLESS THE INSTITUTION CONCERNED MANIFESTLY AND GRAVELY DISREGARDED THE LIMITS ON THE EXERCISE OF ITS POWERS .
13 IN THE CIRCUMSTANCES OF THIS CASE , THE COURT IS LED TO THE CONCLUSION THAT THERE WAS ON THE PART OF THE COUNCIL SUCH A GRAVE AND MANIFEST DISREGARD OF THE LIMITS ON THE EXERCISE OF ITS DISCRETIONARY POWERS IN MATTERS OF THE COMMON AGRICULTURAL POLICY . IN THIS REGARD THE COURT NOTES THE FOLLOWING FINDINGS IN PARTICULAR .
14 IN THE FIRST PLACE IT IS NECESSARY TO TAKE INTO CONSIDERATION THAT THE PRINCIPLE OF EQUALITY , EMBODIED IN PARTICULAR IN THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE EEC TREATY , WHICH PROHIBITS ANY DISCRIMINATION IN THE COMMON ORGANIZATION OF THE AGRICULTURAL MARKETS , OCCUPIES A PARTICULARLY IMPORTANT PLACE AMONG THE RULES OF COMMUNITY LAW INTENDED TO PROTECT THE INTERESTS OF THE INDIVIDUAL . SECONDLY , THE DISREGARD OF THAT PRINCIPLE IN THIS CASE AFFECTED A LIMITED AND CLEARLY DEFINED GROUP OF COMMERCIAL OPERATORS . IT SEEMS , IN FACT , THAT THE NUMBER OF QUELLMEHL PRODUCERS IN THE COMMUNITY IS VERY LIMITED . FURTHER , THE DAMAGE ALLEGED BY THE APPLICANTS GOES BEYOND THE BOUNDS OF THE ECONOMIC RISKS INHERENT IN THE ACTIVITIES IN THE SECTOR CONCERNED . FINALLY , EQUALITY OF TREATMENT WITH THE PRODUCERS OF MAIZE STARCH , WHICH HAD BEEN OBSERVED FROM THE BEGINNING OF THE COMMON ORGANIZATION OF THE MARKET IN CEREALS , WAS ENDED BY THE COUNCIL IN 1974 WITHOUT SUFFICIENT JUSTIFICATION .
15 FOR THOSE REASONS THE COURT ARRIVES AT THE CONCLUSION THAT THE COMMUNITY INCURS LIABILITY FOR THE ABOLITION OF THE REFUNDS FOR QUELLMEHL UNDER REGULATION NO 1125/74 OF THE COUNCIL .
16 THIS SAID , IT IS NECESSARY TO GO ON TO EXAMINE THE DAMAGE RESULTING FROM THE DISCRIMINATION TO WHICH THE QUELLMEHL PRODUCERS WERE SUBJECTED . THE ORIGIN OF THE DAMAGE COMPLAINED OF BY THE APPLICANTS LIES IN THE ABOLITION BY THE COUNCIL OF THE REFUNDS WHICH WOULD HAVE BEEN PAID TO THE QUELLMEHL PRODUCERS IF EQUALITY OF TREATMENT WITH THE PRODUCERS OF MAIZE STARCH HAD BEEN OBSERVED . HENCE , THE AMOUNT OF THOSE REFUNDS MUST PROVIDE A YARDSTICK FOR THE ASSESSMENT OF THE DAMAGE SUFFERED .
17 THE COUNCIL AND THE COMMISSION OBJECTED TO THAT METHOD OF CALCULATING THE DAMAGE ON THE GROUND THAT THE QUELLMEHL PRODUCERS ELIMINATED THE DAMAGE , OR COULD HAVE DONE SO , BY PASSING ON THE LOSS RESULTING FROM THE ABOLITION OF THE REFUNDS IN THEIR SELLING PRICES . IN PRINCIPLE , IN THE CONTEXT OF AN ACTION FOR DAMAGES , SUCH AN OBJECTION MAY NOT BE DISMISSED AS UNFOUNDED . IN FACT , IT MUST BE ADMITTED THAT IF THE LOSS FROM THE ABOLITION OF THE REFUNDS HAS ACTUALLY BEEN PASSED ON , OR COULD HAVE BEEN PASSED ON , IN THE PRICES THE DAMAGE MAY NOT BE MEASURED BY REFERENCE TO THE REFUNDS NOT PAID . IN THAT CASE THE PRICE INCREASE WOULD TAKE THE PLACE OF THE REFUNDS , THUS COMPENSATING THE PRODUCER .
18 FOR THEIR PART , THE APPLICANTS DISPUTE THE POSSIBILITY OF PASSING ON THE LOSS IN THAT WAY . THEY STATE THAT , FACED WITH THE COMPETITION FROM THE STARCH PRODUCERS BENEFITING FROM REFUNDS , THEY CHOSE , AS A MATTER OF COMMERCIAL POLICY , TO SELL QUELLMEHL AT A LOSS IN ORDER TO RETAIN THEIR MARKETS , RATHER THAN RAISE THE PRICES AT THE RISK OF LOSING THOSE MARKETS . THE PRICE INCREASES REFERRED TO BY THE COUNCIL AND THE COMMISSION ARE , IN THE APPLICANTS ' SUBMISSION , DUE TO THE RISE IN THE THRESHOLD PRICE OF MAIZE AND TO THE INCREASE IN PRODUCTION COSTS .
19 THE STATISTICAL DATA AND THE ARGUMENTS PUT FORWARD BY THE PARTIES DO NOT PERMIT THE CONCLUSION TO BE DRAWN THAT THE APPLICANTS ACTUALLY PASSED ON , OR COULD HAVE PASSED ON , THE LOSS RESULTING FROM THE ABOLITION OF THE REFUNDS IN THEIR SELLING PRICES .
20 IN FOLLOWS THAT THE LOSS FOR WHICH THE APPLICANTS MUST BE COMPENSATED HAS TO BE CALCULATED ON THE BASIS OF ITS BEING EQUIVALENT TO THE REFUNDS WHICH WOULD HAVE BEEN PAID TO THEM IF , DURING THE PERIOD FROM 1 AUGUST 1974 TO 19 OCTOBER 1977 THE USE OF MAIZE FOR THE MANUFACTURE OF QUELLMEHL INTENDED FOR USE IN THE BAKERY INDUSTRY HAD CONFERRED A RIGHT TO THE SAME REFUNDS AS THE USE OF MAIZE FOR THE MANUFACTURE OF STARCH .
21 THE APPLICANTS SUBMITTED A NUMBER OF DOCUMENTS TO THE COURT AS PROOF OF THE QUANTITIES OF QUELLMEHL FOR WHICH THEY CLAIM TO BE ENTITLED TO COMPENSATION AND OF THE AMOUNTS OF THE REFUNDS NOT PAID IN RESPECT OF THOSE QUANTITIES . HOWEVER , THE COURT IS NOT IN A POSITION AT THIS STAGE OF THE PROCEDURE TO GIVE A DECISION ON THE ACCURACY OF THOSE DATA . THEREFORE , IT IS NECESSARY TO LAY DOWN BY INTERLOCUTORY JUDGMENT THE CRITERIA WHEREBY THE COURT CONSIDERS THAT THE APPLICANTS MUST BE COMPENSATED , LEAVING THE AMOUNT OF THE COMPENSATION TO BE DETERMINED EITHER BY AGREEMENT BETWEEN THE PARTIES OR BY THE COURT IN THE ABSENCE OF SUCH AGREEMENT .
THE CLAIM FOR INTEREST
22 THE APPLICANTS FURTHER CLAIM THAT THE COMMUNITY SHOULD BE ORDERED TO PAY INTEREST AT THE RATE OF 8 % FROM THE DATE OF LODGMENT OF THE APPLICATIONS .
23 AS IT IS A QUESTION OF A CLAIM MADE IN RELATION TO THE NON-CONTRACTUAL LIABILITY OF THE COMMUNITY , PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 215 , IT MUST BE CONSIDERED IN THE LIGHT OF THE PRINCIPLES COMMON TO THE LEGAL SYSTEMS OF THE MEMBER STATES , TO WHICH THAT PROVISION REFERS . IT FOLLOWS THAT A CLAIM FOR INTEREST IS IN GENERAL ADMISSIBLE . TAKING INTO ACCOUNT THE CRITERIA FOR THE ASSESSMENT OF DAMAGES LAID DOWN BY THE COURT , THE OBLIGATION TO PAY INTEREST ARISES ON THE DATE OF THIS JUDGMENT , IN THAT IT ESTABLISHES THE OBLIGATION TO MAKE GOOD THE DAMAGE . THE RATE OF INTEREST WHICH IT IS PROPER TO APPLY IS 6% .
ON THOSE GROUNDS ,
THE COURT ,
AS AN INTERLOCUTORY DECISION , HEREBY :
1 . ORDERS THE EUROPEAN ECONOMIC COMMUNITY TO PAY TO
( 1 ) INTERQUELL STARKE-CHEMIE GMBH & CO . KG , GROSSAITINGEN ,
( 2 ) DIAMALT AG , MUNICH ,
THE AMOUNTS EQUIVALENT TO THE PRODUCTION REFUNDS ON QUELLMEHL INTENDED FOR USE IN THE BAKERY INDUSTRY WHICH EACH OF THOSE UNDERTAKINGS WOULD HAVE BEEN ENTITLED TO RECEIVE IF , DURING THE PERIOD FROM 1 AUGUST 1974 TO 19 OCTOBER 1977 , THE USE OF MAIZE FOR THE PRODUCTION OF QUELLMEHL HAD CONFERRED AN ENTITLEMENT TO THE SAME REFUNDS AS THE USE OF MAIZE FOR THE MANUFACTURE OF STARCH ;
2 . ORDERS THAT INTEREST AT 6% SHALL BE PAID ON THE ABOVE-MENTIONED AMOUNTS AS FROM THE DATE OF THIS JUDGMENT ;
3 . ORDERS THE PARTIES TO INFORM THE COURT WITHIN TWELVE MONTHS FROM THE DELIVERY OF THIS JUDGMENT OF THE AMOUNTS OF COMPENSATION ARRIVED AT BY AGREEMENT ;
4 . ORDERS THAT IN THE ABSENCE OF AGREEMENT THE PARTIES SHALL TRANSMIT TO THE COURT WITHIN THE SAME PERIOD A STATEMENT OF THEIR VIEWS , WITH SUPPORTING FIGURES ;
5 . RESERVES THE COSTS .
