P.294
ON THE BASIS OF ARTICLE 215 OF THE TREATY THE APPLICANT REQUESTS THE COURT TO ORDER THE COMMUNITY TO MAKE GOOD THE DAMAGE WHICH HAS BEEN CAUSED TO IT BY THE COMMISSION AS A RESULT OF ITS DECISION OF 3 OCTOBER 1963 ' AUTHORIZING THE FEDERAL REPUBLIC OF GERMANY TO RETAIN THE PROTECTIVE MEASURES RELATING TO THE IMPORT OF MAIZE, MILLET AND SORGHUM '.
BY THAT DECISION, WHICH WAS ANNULLED BY A JUDGMENT OF THE COURT OF 1 JULY 1965 IN JOINED CASES 106 AND 107/63, THE COMMISSION, IN APPLICATION OF THE THIRD SUBPARAGRAPH OF ARTICLE 22(2 ) OF REGULATION NO 19 OF THE COUNCIL, RETAINED IN FORCE UP TO AND INCLUDING 4 OCTOBER 1963 THE PROTECTIVE MEASURE TAKEN BY THE FEDERAL REPUBLIC OF GERMANY CONSISTING IN THE SUSPENSION AS FROM 1 OCTOBER OF THE ISSUE OF IMPORT LICENCES FOR MAIZE, SORGHUM, MILLET AND OTHER PRODUCTS MENTIONED IN ARTICLE 1(D ) OF THE SAID REGULATION AT A RATE OF LEVY EQUAL TO ZERO .
AS THE APPLICANT REQUESTED IMPORT LICENCES ON 1 OCTOBER FOR THE FOLLOWING JANUARY AND PURCHASED CERTAIN QUANTITIES OF MAIZE IN ANTICIPATION OF THE GRANT OF THE SAID LICENCES, IT IS CLAIMED THAT THE COMMISSION SHOULD BE REQUIRED TO MAKE GOOD THE INJURY CAUSED TO IT WHICH CONSISTED ON THE ONE HAND OF THE PENALTIES PAID FOR REPUDIATION OF THE CONTRACTS AND THE LOSS RESULTING FROM IMPORTATION ON UNFAVOURABLE CONDITIONS OF QUANTITIES ACTUALLY DELIVERED AND, ON THE OTHER HAND, IN THE LOSS OF PROFIT RESULTING FROM THE IMPOSSIBILITY OF IMPORTING THE CEREALS AT A ZERO LEVY .
THE APPLICANT COMPLAINS THAT THE COMMISSION INCORRECTLY APPLIED ARTICLE 22 OF REGULATION NO 19 AND THAT A CORRECT APPLICATION WOULD HAVE REQUIRED THE ABOLITION AND NOT THE RETENTION OF THE GERMAN PROTECTIVE MEASURE WHICH, ACCORDING TO IT, WOULD HAVE LED TO THE NON-EXECUTION, IF NOT THE COMPLETE DISAPPEARANCE, OF THE SAID MEASURE . THE DEFENDANT REPLIES THAT ITS CONDUCT WAS NOT SUCH AS TO RENDER IT LIABLE BECAUSE, ON THE ONE HAND, IT DID NOT AMOUNT TO A WRONGFUL ACT OR OMISSION AND, ON THE OTHER, THE RULE OF LAW WHICH IT IS SUPPOSED TO HAVE INFRINGED IS NOT INTENDED TO PROTECT INTERESTS SUCH AS THOSE OF THE APPLICANT .
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THE EFFECT AND SCOPE OF THE DECISION OF 3 OCTOBER 1963 WHICH IS THE OBJECT OF THE COMPLAINT SHOULD BE CONSIDERED WITHIN THE FRAMEWORK OF THE COMMON ORGANIZATION OF THE MARKETS IN CEREALS AND PARTICULARLY IN RELATION TO THE APPLICATION WHICH WAS MADE OF THIS SYSTEM BY THE DECISION OF THE COMMISSION OF 27 SEPTEMBER 1963 AGAINST THE CONSEQUENCES OF WHICH THE DECISION OF 3 OCTOBER WAS INTENDED TO PROTECT THE GERMAN MARKET .
REGULATION NO 19 OF THE COUNCIL ESTABLISHED A SYSTEM OF INTRA-COMMUNITY LEVIES IN THE CEREALS SECTOR CORRESPONDING TO THE DIFFERENCE BETWEEN THE PRICES RULING IN THE EXPORTING MEMBER STATE AND IN THE IMPORTING MEMBER STATE, IN SUCH A WAY AS TO PREVENT, ON THE MARKET OF THE MEMBER STATE WHERE THE PRICES ARE HIGHER, DISTURBANCES WHICH MIGHT RESULT FROM IMPORTS COMING FROM A COUNTRY WHERE THE PRICES ARE LOWER . CONSEQUENTLY THE LEVY IS ESTABLISHED ON THE BASIS OF THE DIFFERENCE BETWEEN, ON THE ONE HAND, THE PRICE OF THE PRODUCT COMING FROM THE EXPORTING MEMBER STATE DELIVERED FREE-AT-FRONTIER IN THE IMPORTING MEMBER STATE, A PRICE SETTLED BY THE COMMISSION IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN ARTICLE 26 OF THE SAID REGULATION ON THE BASIS OF PRICES RULING ON THE MOST REPRESENTATIVE MARKETS OF THE EXPORTING MEMBER STATE, AND, ON THE OTHER HAND, THE THRESHOLD PRICE OF THE IMPORTING MEMBER STATE, WHICH IS FIXED ANNUALLY IN ACCORDANCE WITH THE PROCEDURE AND THE CRITERIA LAID DOWN IN ARTICLE 4 OF THE REGULATION . WHEN THE FREE-AT-FRONTIER PRICES FIXED BY THE COMMISSION FOR THE EXPORTING STATE ARE EQUAL TO OR HIGHER THAN THE THRESHOLD PRICE OF THE IMPORTING STATE, THE LEVY IS THEN EQUAL TO ZERO .
IT APPEARS FROM THE RECITALS IN THE PREAMBLE TO ITS DECISION OF 3 OCTOBER 1963 THAT THE COMMISSION, OWING TO A LACK OF KNOWLEDGE CONCERNING THE LEVEL OF PRICES FOR THE NEW HARVEST IN FRANCE, HAD NOT TAKEN INTO ACCOUNT IN ITS DECISION OF 27 SEPTEMBER 1963 THE EFFECT OF THESE PRICES ON THE FORMATION OF PRICES ON THE FRENCH MARKET AND HAD BASED THAT DECISION SOLELY ON THE PRICE OF THE MAIZE, SORGHUM AND MILLET OF THE OLD HARVEST ORIGINATING IN FRANCE, DELIVERED FREE - AT-FRONTIER IN GERMANY, WHICH WERE HIGHER THAN THE THRESHOLD PRICE FIXED BY THE FEDERAL REPUBLIC OF GERMANY . THE SAID DECISION OF 27 SEPTEMBER 1963 DID NOT THUS FIX FREE-AT-FRONTIER PRICES FOR THESE PRODUCTS AND THERE FOLLOWED ON 1 OCTOBER 1963 A ZERO LEVY FOR IMPORTS ORIGINATING IN FRANCE INTO THE FEDERAL REPUBLIC OF GERMANY . AS REGULATION NO 31/63 OF THE COUNCIL ALLOWED, AS FROM 1 OCTOBER, ADVANCE FIXING OF LEVIES FOR MAIZE AT THE RATE IN FORCE ON THE DAY OF LODGING OF THE REQUEST FOR LICENCES FOR IMPORTS TO BE EFFECTED THREE MONTHS LATER, THE APPLICANT TOOK ADVANTAGE OF THIS OPTION TO BENEFIT FROM THE PRICES OF THE NEW HARVEST WHICH WERE LOWER THAN BOTH THE FREE-AT-FRONTIER PRICES FIXED BY THE DECISION OF 27 SEPTEMBER AND THE GERMAN THRESHOLD PRICE IN FORCE AND, ON 1 OCTOBER 1963, IT LODGED WITH THE EINFUHRUND VORRATSSTELLE, THE COMPETENT DEPARTMENT OF THE FEDERAL REPUBLIC OF GERMANY, APPLICATIONS FOR LICENCES WITH THE LEVY FIXED IN ADVANCE IN RESPECT OF RELATIVELY LARGE QUANTITIES OF THE SAID PRODUCTS .
P.296
THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY CONSIDERED THAT THE ISSUE OF THESE LICENCES WOULD HAVE LED TO THE IMPORTATION INTO THAT STATE DURING THE MONTH OF JANUARY OF LARGE QUANTITIES OF MAIZE AT PRICES BELOW THE THRESHOLD PRICE AND ON 1 OCTOBER 1963 ADOPTED AND NOTIFIED TO THE COMMISSION THE PROTECTIVE MEASURE CONSISTING IN THE SUSPENSION AS FROM THAT DATE OF THE ISSUE OF IMPORT LICENCES . BY ITS DECISION OF 3 OCTOBER THE COMMISSION KEPT THE SAID PROTECTIVE MEASURE IN FORCE UP TO AND INCLUDING 4 OCTOBER .
AS IS CLEAR, MOREOVER, FROM THE JUDGMENT OF THE COURT OF 1 JULY 1965, THIS DECISION CONSTITUTED AN IMPROPER APPLICATION OF ARTICLE 22 OF REGULATION NO 19, IN PARTICULAR IN THAT IT LIKENED THE UNDENIABLE DIFFICULTIES CAUSED BY THE DECISION OF 27 SEPTEMBER TO SERIOUS DISTURBANCES WHICH MIGHT ENDANGER THE OBJECTIVES LAID DOWN IN ARTICLE 39 OF THE TREATY . ON 3 OCTOBER 1963 THE COMMISSION APPLIED ARTICLE 22(2 ) OF REGULATION NO 19 IN CIRCUMSTANCES WHICH DID NOT JUSTIFY PROTECTIVE MEASURES IN ORDER TO RESTORE THE SITUATION RESULTING FROM THE FIXING BY IT OF A ZERO LEVY . AS IT WAS AWARE OF THE EXISTENCE OF APPLICATIONS FOR LICENCES, IT CAUSED DAMAGE TO THE INTERESTS OF IMPORTERS WHO HAD ACTED IN RELIANCE ON THE INFORMATION PROVIDED IN ACCORDANCE WITH COMMUNITY RULES . THE COMMISSION'S CONDUCT CONSTITUTES A WRONGFUL ACT OR OMISSION CAPABLE OF GIVING RISE TO LIABILITY ON THE PART OF THE COMMUNITY .
IN TRYING TO JUSTIFY ITSELF BY THE ASSERTION THAT IN VIEW OF THE ECONOMIC DATA AT ITS DISPOSAL ON 3 OCTOBER 1963 A THREAT OF SERIOUS DISTURBANCE WAS NOT TO BE EXCLUDED AND THAT CONSEQUENTLY ITS MISTAKEN EVALUATION OF THE SAID DATA IS EXCUSABLE, THE DEFENDANT MISJUDGES THE NATURE OF THE WRONGFUL ACT OR OMISSION ATTRIBUTED TO IT, WHICH IS NOT TO BE FOUND IN A MISTAKEN EVALUATION OF THE FACTS BUT IN ITS GENERAL CONDUCT WHICH IS SHOWN CLEARLY BY THE IMPROPER USE MADE OF ARTICLE 22, CERTAIN PROVISIONS OF WHICH, OF A CRUCIAL NATURE, WERE IGNORED .
THE COMMISSION'S ASSERTION THAT SUPERVISORY ORGANIZATIONS CANNOT, UNDER A GENERAL PRINCIPLE COMMON TO THE LAWS OF THE MEMBER STATES, BE MADE LIABLE, EXCEPT IN THE CASE OF GROSS MALFEASANCE IS EQUALLY IRRELEVANT . IN FACT, HOWEVER THE POWERS WHICH ARTICLE 22 OF REGULATION NO 19 CONFERS ON THE COMMISSION ARE DESCRIBED, THE LATTER IS REQUIRED IN RESPECT OF EACH PROTECTIVE MEASURE NOTIFIED TO IT TO CONDUCT AS EXHAUSTIVE AN EXAMINATION AS THAT REQUIRED TO BE MADE BY THE GOVERNMENTS OF THE MEMBER STATES AND BEARS INDEPENDENT RESPONSIBILITY FOR THE RETENTION OF A PROTECTIVE MEASURE .
P.297
WITH REGARD TO THE ARGUMENT THAT THE RULE OF LAW WHICH IS INFRINGED IS NOT INTENDED TO PROTECT THE INTERESTS OF THE APPLICANT, THE SAID ARTICLE 22, TOGETHER WITH THE OTHER PROVISIONS OF REGULATION NO 19, IS DIRECTED, ACCORDING TO THE WORDING OF THE FOURTH RECITAL IN THE PREAMBLE TO THE REGULATION, TO ENSURING APPROPRIATE SUPPORT FOR AGRICULTURAL MARKETS DURING THE TRANSITIONAL PERIOD ON THE ONE HAND, AND TO ALLOWING THE PROGRESSIVE ESTABLISHMENT OF A SINGLE MARKET BY MAKING POSSIBLE THE DEVELOPMENT OF THE FREE MOVEMENT OF GOODS ON THE OTHER . FURTHERMORE, THE INTERESTS OF THE PRODUCERS IN THE MEMBER STATES AND OF FREE TRADE BETWEEN THESE STATES ARE EXPRESSLY MENTIONED IN THE PREAMBLE TO THE SAID REGULATION . IT APPEARS IN PARTICULAR FROM ARTICLE 18 THAT THE EXERCISE OF FREEDOM OF TRADE BETWEEN STATES IS SUBJECT ONLY TO THE GENERAL REQUIREMENTS LAID DOWN BY ITS OWN PROVISIONS AND THOSE OF SUBSEQUENT REGULATIONS . ARTICLE 22 CONSTITUTES AN EXCEPTION TO THESE GENERAL RULES AND CONSEQUENTLY AN INFRINGEMENT OF THAT ARTICLE MUST BE REGARDED AS AN INFRINGEMENT OF THOSE RULES AND OF THE INTERESTS WHICH THEY ARE INTENDED TO PROTECT . THE FACT THAT THESE INTERESTS ARE OF A GENERAL NATURE DOES NOT PREVENT THEIR INCLUDING THE INTERESTS OF INDIVIDUAL UNDERTAKINGS SUCH AS THE APPLICANT WHICH AS CEREAL IMPORTERS ARE PARTIES ENGAGED IN INTRA-COMMUNITY TRADE . ALTHOUGH THE APPLICATION OF THE RULES OF LAW IN QUESTION IS NOT IN GENERAL CAPABLE OF BEING OF DIRECT AND INDIVIDUAL CONCERN TO THE SAID UNDERTAKINGS, THAT DOES NOT PREVENT THE POSSIBILITY THAT THE PROTECTION OF THEIR INTERESTS MAY BE - AS IN THE PRESENT CASE IT IS IN FACT - INTENDED BY THOSE RULES OF LAW . THE DEFENDANT'S ARGUMENT THAT THE RULE OF LAW CONTAINED IN ARTICLE 22 OF REGULATION NO 19 IS NOT DIRECTED TOWARDS THE PROTECTION OF THE INTERESTS OF THE APPLICANT CANNOT THEREFORE BE ACCEPTED .
SINCE THE LIABILITY OF THE COMMUNITY HAS BEEN RECOGNIZED IN PRINCIPLE, IT IS NECESSARY TO ESTABLISH THE FACTS OF THE ALLEGED INJURY TO WHICH THAT LIABILITY RELATES .
IN THIS CONNEXION, IT IS NECESSARY TO DISTINGUISH TWO CATEGORIES OF INJURY . IN THE FIRST PLACE, AFTER THE REFUSAL OF THE GRANT OF IMPORT LICENCES ON 3 OCTOBER 1963, THE APPLICANT MADE A PART OF THE IMPORTS IN QUESTION DURING THE MONTH OF JANUARY, PAYING THE GERMAN AUTHORITIES THE LEVY REQUIRED FOR THE QUANTITY OF MAIZE PURCHASED ON 1 OCTOBER IN ANTICIPATION OF THE ISSUE OF THE LICENCES APPLIED FOR . IN THE SECOND PLACE, IN RESPECT OF THE REMAINDER OF THE QUANTITIES OF MAIZE PURCHASED ON 1 OCTOBER, THE APPLICANT EITHER REPUDIATED THE CONTRACTS AGAINST PAYMENT OF A PENALTY OR RESOLD THE MAIZE TO THE SUPPLIER AT THE PRICE THEN RULING WITH REIMBURSEMENT OF THE DIFFERENCE BETWEEN THE PRICE THEN RULING AND THE ORIGINAL PURCHASE PRICE OR SOLD THE MAIZE ABROAD .
P.298
AS TO THE FIRST CATEGORY, AS THE APPLICANT PURCHASED THE MAIZE IN ANTICIPATION OF IMPORTATION SUBJECT TO A ZERO LEVY, ITS INJURY WAS CAUSED BY THE NECESSITY TO IMPORT SUBJECT TO THE PAYMENT OF A LEVY . HOWEVER, THE REFUSAL TO GRANT THE IMPORT LICENCES SUBJECT TO A ZERO LEVY IN RESPECT OF THIS TRANSACTION HAD NO LEGAL BASIS, AS THE DECISION OF THE COMMISSION OF 3 OCTOBER HAD BEEN ANNULLED BY THE ABOVEMENTIONED JUDGMENT OF 1 JULY 1965 AND, FURTHERMORE, AS ACCORDING TO THE DOCUMENTS PROVIDED BY THE APPLICANT, THE GERMAN PROTECTIVE MEASURE HAD BEEN DECLARED ILLEGAL BY THE GERMAN COURTS FOR REASONS BASED ON GERMAN LAW . CONSEQUENTLY THE CHARGING OF THE LEVY, MADE IN THE NAME OF AND FOR THE BENEFIT OF THE TREASURY OF THE FEDERAL REPUBLIC OF GERMANY, IS THUS SHOWN TO BE CONTRARY TO BOTH COMMUNITY LAW AND GERMAN LAW . IN THESE CIRCUMSTANCES, THE QUESTION ARISES WHETHER THE DAMAGE ALLEGED WOULD BE MADE GOOD BY THE REPAYMENT OF THE SUMS IMPROPERLY PAID BY WAY OF LEVY .
DURING THE ORAL PROCEDURE, THE EXISTENCE IN THE PRESENT CASE OF THE RIGHT TO SUCH REPAYMENT WAS PUT IN DOUBT BY THE APPLICANT . THE COURT CANNOT, HOWEVER, RELY ON SUCH A STATEMENT TO ACCEPT THE CONCLUSIVE NATURE OF THE ALLEGED DAMAGE . IT IS PROPER, THEREFORE, TO ASK THE APPLICANT TO PROVE THAT IT HAS EXHAUSTED ALL METHODS OF RECOURSE BOTH ADMINISTRATIVE AND JUDICIAL UNDER THE RELEVANT NATIONAL LAW TO OBTAIN REIMBURSEMENT OF THE SUMS IMPROPERLY PAID BY WAY OF LEVY . ONLY AFTER PRODUCTION OF SUCH EVIDENCE WOULD THERE BE REASON TO CONSIDER WHETHER ANY INJURY EXISTS WHICH THE COMMUNITY SHOULD MAKE GOOD .
IT IS THUS APPROPRIATE TO ASK THE APPLICANT TO PRODUCE THE EVIDENCE INDICATED ABOVE .
IT SHOULD, HOWEVER, BE STATED AT THIS STAGE THAT ONLY THE IMPORTS OF MAIZE PURCHASED IN RELIANCE ON THE ANNOUNCEMENT OF THE ISSUE OF LICENCES SUBJECT TO A ZERO LEVY MAY BE TAKEN INTO ACCOUNT FOR THE FIXING OF THE DAMAGE FOR WHICH THE COMMUNITY MAY BE LIABLE . IT IS APPROPRIATE THEREFORE TO ASK THE APPLICANT TO PRODUCE EVIDENCE THAT THE QUANTITIES OF MAIZE IMPORTED IN OR NEAR THE MONTH OF JANUARY 1964, TO WHICH IT REFERS, WERE PURCHASED BY CONTRACTS MADE ON 1 OCTOBER . BECAUSE CERTAIN CONTRACTS WERE NOT CONCLUDED UNTIL AFTER 2.15 P.M . ON 1 OCTOBER 1963, THE DEFENDANT ASSERTS THAT IN THOSE CASES ITS LIABILITY IS REDUCED BY THE FACT THAT THE APPLICANT ITSELF CONTRIBUTED TO THE CAUSE OF THE ALLEGED DAMAGE THROUGH LACK OF FORESIGHT . IN FACT, AS FROM THE TIME STATED, THE GERMAN AUTHORITIES INFORMED THOSE CONCERNED BY POSTING UP A NOTICE OF THE WITHDRAWAL OF THE ZERO LEVY, SO THAT A DILIGENT IMPORTER, IT IS ALLEGED, COULD HAVE BEEN AWARE OF THE HAZARDOUS NATURE OF IMPORT TRANSACTIONS FOR THE MONTH OF JANUARY . FURTHERMORE SEVERAL IMPORTERS INQUIRED REPEATEDLY FROM THE COMPETENT GERMAN AUTHORITIES WHETHER THE ZERO LEVY WAS STILL IN FORCE, WHICH PROVES THAT THE IMPORTERS WERE AWARE OF THE ABNORMAL NATURE OF THE SITUATION .
P.299
IT IS NOT POSSIBLE, HOWEVER, TO ARGUE FROM THE SAID REQUESTS FOR INFORMATION THAT A DILIGENT IMPORTER WAS OBLIGED TO KEEP HIMSELF INFORMED OF THE SITUATION AT ALL TIMES . IT APPEARS BOTH FROM THE WORDING OF ARTICLE 17 OF REGULATION NO 19 AND FROM THE ACCOUNT OF THE FUNCTIONING OF THE COMMON ORGANIZATION OF THE MARKETS PROVIDED BY THE DEFENDANT THAT THE LEVY ANNOUNCED AT THE BEGINNING OF THE DAY NORMALLY REMAINS APPLICABLE DURING THE WHOLE DAY . IN THESE CIRCUMSTANCES, THE REQUIREMENTS OF THE PRODUCTION OF PROOF EITHER THAT THE IMPORTER PURCHASED THE MAIZE ON 1 OCTOBER 1963 BEFORE 2.15 P.M . OR THAT HE COULD NOT HAVE BEEN AWARE OF THE WITHDRAWAL OF THE ZERO LEVY, WHICH MOREOVER WAS ILLEGAL, IS EQUIVALENT TO A REVERSAL OF THE BURDEN OF PROOF . AS SUCH A REVERSAL IS NOT JUSTIFIED, THE DEFENDANT MUST BE ALLOWED TO PROVE, WHERE APPROPRIATE, THAT THE PURCHASES OF MAIZE WERE MADE WITH KNOWLEDGE OF THE SAID WITHDRAWAL, THE RIGHT TO PRODUCE EVIDENCE TO THE CONTRARY BEING RESERVED TO THE APPLICANT .
AS TO THE SECOND CATEGORY OF INJURY MENTIONED ABOVE, THE APPLICANT ALLEGES THAT IT HAS SUFFERED INJURY BECAUSE OF BOTH THE EXPENSE WHICH IT HAS HAD TO BEAR IN REPUDIATING THE SAID CONTRACTS OR THE LOSSES SUFFERED ON RESALE AS WELL AS THE LOSS OF PROFIT WHICH IT HAS SUFFERED IN RESPECT OF THE QUANTITIES OF MAIZE PURCHASED BUT NOT IMPORTED IN CONSEQUENCE OF THE PROTECTIVE MEASURE .
THE PENALTIES PAID AND THE LOSSES SUFFERED ON RESALE ARE THE DIRECT CONSEQUENCE, ON THE ONE HAND, OF THE CONFIDENCE OF THE APPLICANT IN THE PROPER APPLICATION OF REGULATION NO 19 AND, ON THE OTHER HAND, OF THE UNFORESEEN FACTOR CONSTITUTED BY THE PROTECTIVE MEASURE WHICH WAS RETAINED BY THE DECISION OF THE COMMISSION OF 3 OCTOBER 1963 . IN PURCHASING THE QUANTITIES OF MAIZE IN QUESTION ON 1 OCTOBER 1963, THE APPLICANT LEGITIMATELY RELIED UPON THE SYSTEM OF LEVIES IN FORCE IN ORDER TO ENTER INTO CONTRACTUAL OBLIGATIONS IN RESPECT OF IMPORTS INTO THE FEDERAL REPUBLIC . IT THUS HAS THE RIGHT TO BE REIMBURSED FOR THE WHOLE OF THE INJURY SUFFERED THROUGH PAYMENT OF PENALTIES, UNLESS THE AMOUNT OF SUCH PENALTIES WAS HIGHER THAN NECESSARY .
THE APPLICANT MUST THUS BE ALLOWED TO SHOW THAT THE CONTRACTS OF PURCHASE IN QUESTION WERE MADE ON 1 OCTOBER 1963, THE RIGHT TO PRODUCE EVIDENCE THAT IT ACTED IN KNOWLEDGE OF THE WITHDRAWAL WHICH TOOK PLACE AT 2.15 P.M . BEING RESERVED TO THE DEFENDANT .
P.300
THE ALLEGED INJURY IN RESPECT OF THE LOSS OF PROFIT IS BASED ON FACTS OF AN ESSENTIALLY SPECULATIVE NATURE . IN FACT, IT SHOULD BE SAID FIRST OF ALL THAT THE HASTY LODGING OF AN ABNORMALLY LARGE NUMBER OF APPLICATIONS FOR IMPORT LICENCES ON 1 OCTOBER PROVIDES AN INDICATION THAT THE PERSONS CONCERNED KNOW THAT THE DECISIONS IN FORCE ON 1 OCTOBER 1963 OFFERED UNUSUAL ADVANTAGES . FURTHERMORE, AS THE APPLICANTS FOR LICENCES KNEW THE FRENCH MARKET AND THE ACTUAL LEVEL OF PRICES RULING THERE, THEY WERE ABLE TO PERCEIVE THE ERROR COMMITTED BY THE COMMISSION IN THE DECISION OF 27 SEPTEMBER 1963, FIXING THE FREE - AT-FRONTIER PRICES . THUS THE APPLICANT MAY BE REGARDED AS HAVING BEEN AWARE OF THE ABNORMAL SPECULATIVE NATURE OF THE TRANSACTION INVOLVED IN ITS PURCHASES OF MAIZE . BY CANCELLING THE TRANSACTIONS CONCERNED, IT AVOIDED ANY COMMERCIAL RISK TO ITSELF INHERENT IN IMPORTATION INTO THE FEDERAL REPUBLIC . CONSEQUENTLY IT IS NOT JUSTIFIABLE TO ACKNOWLEDGE ITS RIGHT TO RECOVER THE WHOLE PROFIT WHICH IT WOULD HAVE BEEN ABLE TO OBTAIN IF THE TRANSACTION WHICH HAD BEEN STARTED HAD BEEN PERFORMED . TAKING THIS INTO ACCOUNT, THE INJURY RESULTING FROM LOSS OF PROFIT FOR WHICH THE COMMUNITY MUST BE REGARDED AS BEING LIABLE CANNOT EQUITABLY BE EVALUATED AT A SUM EXCEEDING 10 PER CENT OF THAT WHICH THE APPLICANT WOULD HAVE PAID BY WAY OF LEVY, IF IT HAD CARRIED OUT THE PURCHASES MADE BUT CANCELLED .
HOWEVER, THE APPLICANT HAS INFORMED THE COURT THAT THE INJURY ALLEGED IS THE SUBJECT OF TWO ACTIONS FOR DAMAGES, ONE AGAINST THE FEDERAL REPUBLIC OF GERMANY BEFORE A GERMAN COURT AND THE OTHER AGAINST THE COMMUNITY BEFORE THE COURT OF JUSTICE . IT IS NECESSARY TO AVOID THE APPLICANT'S BEING INSUFFICIENTLY OR EXCESSIVELY COMPENSATED FOR THE SAME DAMAGE BY THE DIFFERENT ASSESSMENT OF TWO DIFFERENT COURTS APPLYING DIFFERENT RULES OF LAW . BEFORE DETERMINING THE DAMAGE FOR WHICH THE COMMUNITY SHOULD BE HELD LIABLE, IT IS NECESSARY FOR THE NATIONAL COURT TO HAVE THE OPPORTUNITY TO GIVE JUDGMENT ON ANY LIABILITY ON THE PART OF THE FEDERAL REPUBLIC OF GERMANY . THIS BEING THE CASE, FINAL JUDGMENT CANNOT BE GIVEN BEFORE THE APPLICANT HAS PRODUCED THE DECISION OF THE NATIONAL COURT ON THIS MATTER, WHICH MAY BE DONE INDEPENDENTLY OF THE EVIDENCE ASKED OF THE APPLICANT TO THE EFFECT THAT IT HAS EXHAUSTED ALL METHODS OF RECOURSE FOR THE RECOVERY OF THE AMOUNTS IMPROPERLY PAID BY WAY OF LEVY . FURTHERMORE, IF IT WERE ESTABLISHED THAT SUCH RECOVERY WAS POSSIBLE, THIS FACT MIGHT HAVE CONSEQUENCES BEARING UPON THE CALCULATION OF THE DAMAGES CONCERNING THE SECOND CATEGORY . HOWEVER, THE DECISIVE NATURE OF THE SAID EVIDENCE REQUIRED DOES NOT PREVENT THE APPLICANT FROM PRODUCING THE OTHER EVIDENCE PREVIOUSLY INDICATED IN THE MEANTIME .
HOWEVER, WITH REGARD TO THE NATURE OF THE LEGAL DECISIONS TO BE PRODUCED, THE APPLICANT REQUESTED FURTHER THAT IT SHOULD BE STATED WHETHER ON THE ONE HAND IT WOULD SUFFICE TO PRODUCE THE DECISION IN A TEST CASE OR, ON THE OTHER HAND, WHETHER ONLY JUDGMENTS GIVEN BY COURTS OF LAST INSTANCE WOULD BE ACCEPTED AS EVIDENCE .
HOWEVER THE COURT MUST RESERVE THE RIGHT TO EXAMINE IN CONCRETO AND HAVING HEARD THE PARTIES THE QUESTION WHETHER THE JUDGMENT GIVEN IN A COMPARABLE CASE OR THE JUDGMENT GIVEN IN THE ACTION BROUGHT BY THE BECHER UNDERTAKING AND HAVING ACQUIRED THE FORCE OF RES JUDICATA MAY IN THIS CASE BE CONSIDERED AS SUFFICIENT CRITERIA WITH REGARD TO THE PRESENT DISPUTE .
COSTS MUST BE RESERVED .
THE COURT
BY WAY OF INTERLOCUTORY JUDGMENT, HEREBY :
1 . ORDERS THE APPLICANT TO SEND TO THE COURT THE DECISIONS GIVEN BY THE RELEVANT COURTS OF THE FEDERAL REPUBLIC OF GERMANY CONCERNING ITS ACTION FOR DAMAGES AGAINST THE FEDERAL REPUBLIC;
2 . ORDERS THE APPLICANT TO SEND TO THE COURT EVIDENCE IN WRITING THAT IT HAS EXHAUSTED ALL METHODS OF RECOURSE, BOTH ADMINISTRATIVE AND JUDICIAL, FOR OBTAINING REIMBURSEMENT OF THE SUMS IMPROPERLY PAID TO THE TREASURY OF THE FEDERAL REPUBLIC OF GERMANY BY WAY OF LEVY;
3 . ORDERS THE APPLICANT TO PRODUCE BEFORE 31 MARCH 1968 PROOF THAT ON 1 OCTOBER 1963 IT MADE CONTRACTS FOR THE PURCHASE OF MAIZE ON THE FRENCH MARKET;
4 . ORDERS THAT THE COSTS BE RESERVED .
