OPINION OF MR ADVOCATE-GENERAL TRABUCCHI

DELIVERED ON 31 MARCH 1976 (*1)

Mr President,

Members of the Court,

1.The present case is a sort of appendix to other proceedings already concluded at Community and national level. The fact is that, in addition to the action for damages brought before this Court against the Commission, the applicant has at the same time brought before the national court an action against the French administrative authorities the object of which is in many respects substantially the same.

Before the French court the applicant sought reimbursement of the compensatory amounts which it claimed to have paid unduly in application of Article 4a (2) of Regulation No 974/71 of the Council of the EEC as amended by Regulation No 509/73. It also claimed the appropriate interest on this sum.

In a simultaneous motion before this Court, the applicant originally sought, in these proceedings, on the basis of the Community's non-contractual liability, the payment of a sum equivalent to the aforesaid amount with appropriate interest and, in addition, compensation for the damage caused by the fact that its competitors in other Member States had improperly received payments from the European Agricultural Guidance and Guarantee Fund (‘EAGGF’) for their exports to France.

Pursuant to Article 177 of the EEC Treaty, the French court asked this Court for an interpretation of Article 4a (2) of Regulation No 974/1 to enable it to decide whether the applicant's claim for compensation was justified (Case 34/74). In its judgment of 12 November 1974 (Roquette v France, [1974] ECR 1227 et seq.) the Court, concurring with my main conclusions, placed a restrictive interpretation on the concept of ‘charge on products imported’ provided for under Article 4a (2) of Regulation No 974/71 of the Council and rejected the purely literal interpretation of the term on which both the French administrative authorities and the Commission itself had relied. An attempt was thus made to reach a conclusion consistent with the objectives pursued by the system even in the context of a market situation which was very different from that envisaged when the rule was drafted.

Applying the interpretation given in the preliminary ruling, the Tribunal d'instance of Lille ordered the French customs administration to repay to the applicant all the sums unlawfully levied on the basis of an application, which had thenceforward to be regarded as ‘erroneous’, of the aforesaid Community provision.

This repayment has already been made. For this reason the applicant in the present case has withdrawn its first application.

On the other hand, the French court rejected the application for interest on grounds based on national customs legislation and also because the sums which had been improperly levied had been immediately paid by the French customs administration into the funds of the EAGGF. Trusting to its chances of obtaining direct redress against the Community through the present proceedings, the applicant decided not to appeal against that decision.

For this reason it now submits the application against the Commission, together with the other application relating to compensation for the damage which it claims to have been done to its competitive position as a result of the erroneous application of Community law.

2.Consideration must first be given to the application for interest on the sum unlawfully levied by the French authorities.

Under the case-law of this Court, disputes concerning the relationship created between a State authority and a national as a result of an undue payment claimed by the authority when carrying out its duty to apply Community rules must first be resolved at national level, before the competent national court. It was laid down in the judgment of 27 January last in Case 46/75 (I.B.C. v Commission), which confirmed the previous decision to the same effect in the judgment of 25 October 1972 in Case 96/71 (Haegemann v Commission, Rec. 1972, p. 1014), that even if the imposition of the undue payment was based on a specific Community provision, an application for repayment must be brought exclusively against the authority which imposed it. In the light of these precedents there can be no question of the Community authorities' being asked to repay sums which a national authority has improperly levied in application of a Community rule, even if the latter were illegal. This principle applies with even greater force when a national authority has improperly collected payments on the basis of an erroneous application of a valid Community rule, as occurred in the present case.

The clear distinction drawn by the Court between actions for payment due from a Member State under Community law and actions for damages under Article 215 of the EEC Treaty (Judgment of 26 November 1975 in Case 99/74, Grands Moulins des Antilles [1975] ECR 1531) may be taken as also applying to actions for repayment of sums improperly levied by States when applying Community rules. Although the fact that the Commission was partly to blame for the mistake made by the national authority may be important in establishing the Community's liability for any subsequent damage, this has no relevance in determining to which authority the application for reimbursement of the undue payment should be submitted.

Payment of the interest on a capital sum unduly paid is strictly dependent upon the right to repayment of the principal itself. The determination of the amount due as interest on a contract or as default interest directly and necessarily depends on the amount of the sum unduly paid and on the period which has elapsed between the undue payment, or at least the final notice served by the body collecting the payment, and its repayment. The right to receive such interest is not subject to proof of damage.

These considerations lead to the conclusion that an application for interest is subject to the same criteria as those laid down by the case-law of the Court in respect of the claim for repayment of the capital on which the interest is based. An application for interest must, therefore, be made in accordance with the same procedure as that applicable to recovery of the capital sum.

If, therefore, it was a matter for the competent national court to rule on the validity of the application of Community law by the French administration and, consequently, to decide whether there is any right to reimbursement of the sums unduly paid by the applicant, the same must apply to the secondary debt of the sums claimed as interest on the improper levy. If the applicant had confined itself to seeking the enforcement of its right to repayment of the undue payment within the framework of the present proceedings the Court, in conformity with the above-mentioned case-law, would have had to declare inadmissible an application for repayment submitted in the form of an action for damages against the Commission. This must also apply to the concomitant application for the appropriate interest.

It is true that, in the proceedings before the national court of first instance, the applicant was unsuccessful in the claim which it brought against the French administration for this interest. Nevertheless, it has voluntarily waived its right of appeal against that judgment although it expressed the view that the judgment was in several respects impugnable. Again, as regards the fact, which the applicant declares to have been decisive in inducing it not to lodge an appeal, that the sums improperly levied by the French customs administration were forthwith paid by the latter into the funds of the EAGGF, it does not seem to me that this development, which did not constitute an obstacle to repayment of the capital sum, should necessarily constitute an obstacle to payment of interest on the part of the body which collected it. If, as undoubtedly occurs in the case of the capital, the EAGGF must in the end defray the amount of the interest, this is a question concerning the relationship between the State and the Community. It ought not to be taken into account as a factor affecting the relationship which the improper levy has created between the undertaking concerned and the customs administration and is therefore of no relevance in the present proceedings.

In any case, even if, in circumstances such as those in the present case, it had to be recognized that there was subsidiary liability on the part of the Community, as was decided in the judgment in Joined Cases 5, 7 and 13 to 24/66 (Firma E. Kampffmeyer and others [1967] ECR 246 et seq.), such liability could only be taken into consideration after the applicant had exhausted all available methods under national law of obtaining satisfaction for his claim which, as has been seen, must be pursued primarily against the authority which imposed the levy and which is also involved in the question of interest.

Accordingly, the application for an order that the Commission should pay interest was submitted too soon. The subsequent waiver, on its own initiative, by the applicant of all the methods of redress available to it under national law whereby it could obtain this payment from the authority against whom, in accordance with the case-law of this Court, the applicant had first to apply for it, forthwith removes all possibility of its claiming from the Community.

The application for interest must therefore be dismissed as inadmissible.

3.I now turn to the applicant's claim for ‘compensation in principle’ for the damage which it suffered in the field of competition owing to the fact that the traders of other Member States were placed in a position of undue advantage by monetary compensatory amounts for their exports to France.

This claim is quite different from that relating to repayment of the sum improperly levied by the national authorities on account both of its subject-matter and of the fact that it essentially relates to a circumstance other than the imposition of the levy, namely, the improper payment of compensatory amounts to the applicant's foreign competitors. It represents a straightforward claim for compensation for damage the blame for which, according to the originating application, must be placed on the Commission because it made a decisive contribution to the aforesaid erroneous application of Community law made by the national administrations to the advantage of exports to France. This claim is not therefore affected by the considerations which make the application for interest, considered above, inadmissible.

Again, before considering whether the individual conditions required to make the Commission liable are present, I must refer to the importance in this case of the fact that the action which caused the alleged damage does not arise from a specific relationship between the Commission and individual undertakings (as would be the case, for example, in connexion with the application of the prohibition of concerted practices or of the possibility of authorizing them) but as it consists of an interpretation of a general provision, it amounts only to one condition of the wrongful application which the national authorities made over the whole range of persons coming within their province. The illegal action of the Community Executive which, according to the applicant, gives rise to liability, consists, therefore, in having misinterpreted a provision which was to be applied by the national authorities, with the consequence that the latter were in this way led to apply it wrongly. Thus the damage suffered by the applicant arises not so much from the error in its regard but rather from the application of the provision to its competitors in other Member States.

It is clear how remote the alleged damage is from the action of the Commission. It must also be borne in mind that the rather complex tasks with which the Commission has been entrusted in the exercise of its powers in respect of interventions in the market necessarily affect in various ways, directly and indirectly, the interests of classes of persons throughout the Community. In the case of action by the Executive which does not arise from a specific relationship with undertakings individually considered but is on the other hand such as to determine the action of the national authorities in respect of a whole group of cases and persons, I consider that the Executive ought not to be regarded as liable over an area wider than that in which it would be possible to recognize the existence of liability for damage arising from the action of the Community legislature.

These considerations must be borne in mind as we now consider the individual conditions of liability.

Let us first of all consider whether there exists the subjective condition of liability, namely, whether there is any misconduct to be discerned in the action of the Commission arising from its having acted negligently and without due care and circumspection.

We saw that the judgment in Case 34/74, in giving the correct interpretation, in the light of the new circumstances which arose on the market in the product concerned, of the provision in Regulation No 974/71 of the Council, had to go beyond the letter of the provision in question. It was necessary, by means of a restrictive interpretation, to effect a substantial adjustment of the provision to the development of economic reality. This had undoubtedly required an effort of interpretation which a judicial body could reasonably be expected to make but which it would certainly be too much and perhaps also dangerous to require of executive bodies responsible for applying existing law. When faced with a provision which, in consequence of a radical change in the economic situation, produces effects which ill accord with the objectives of the system, the Executive is certainly under a duty to do what it can to secure its amendment. And this is what the Commission did by submitting to the Council, as the authority responsible for the provision, proposals for the amendment, with effect from 25 February 1974, of the regulation concerned.

Meanwhile the Commission's mistake in recommending the governments to apply the regulation in a particular way was due to its adherence to the letter of the law. As the way in which the provision was expressed makes it impossible to describe the mistake as a manifest one, it must therefore be treated as a pardonable one.

Bearing in mind the undoubted complexity of the legislation in question, I consider it reasonable to rule out the possibility that, given the conditions under which it took place, a mistake in interpreting the law can create liability. I am strengthened in this opinion by a judgment of this Court which, in connexion with subject-matter other but certainly no less complicated than that governed by the provision with which we are concerned in this case, ruled that the adoption by the Community administrative authorities of an incorrect interpretation of a legislative provision does not constitute in itself a wrongful act capable of creating liability (Judgment in Cases 19, 20, 25 and 30/69 Richez-Parise v Commission [1970] ECR 339).

I am therefore unable to discern the first constituent element of liability, and this suffices for the rejection as unfounded of the present application for compensation.

4.Furthermore, it is clear that the application is also defective in respect of proof of damage and of the causal relationship between the impugned action of the defendant and the injury which the applicant claims to have suffered.

To claim compensation for injury it is not enough to show that it was likely; it is also necessary to demonstrate that it was actually sustained.

Without ignoring the difficulty which may be involved in proving the exact extent of the injury suffered as a result of inequality of treatment with repercussions in the field of competition I nevertheless am of the opinion that, without requiring the applicant to demonstrate the exact amount, it ought nevertheless be expected to provide something less general than the evidence which it has supplied. All it has done, in fact, is to provide statistical statements on the trend of its competitors' export trade with France. As the Commission pointed out, these statistical data are insufficient to show that the applicant has suffered damage. An increase in exports to France by certain competitors does not necessarily mean that the applicant has suffered corresponding damage. There should have been more concrete indications of this such as, for example, the loss of established customers, fulfilment of contracts at a loss and so on.

Again, there has certainly been no evidence that the fluctuations in trade revealed by the aforesaid statistics were due to the wrongful collection or payment of monetary compensatory amounts.

In fact, although the first two tables supplied by the applicant show some increase, compared with the previous year, in imports of starch products into France during 1974, the official statistics to which, on the other hand, the Commission refers and whose accuracy has not been challenged by the applicant, demonstrate that in the same period there was an appreciable increase in French exports into the Community and that in the case of certain products (such as for example maize starch, dextrose, glucose and dextrine) French exports showed a much greater increase than imports into France.

Then, as regards the trend of maize starch imports, referred to in the applicant's third table, the defendant has pointed out that the increase in imports of this product into France had already begun to become apparent in February 1973 — that is, considerably earlier than the putting into effect of the system of monetary compensatory amounts and that, moreover, even after the latter ceased to be applied, these imports were maintained at an appreciably higher level than that in 1973.

In view of all these considerations it does not seem possible to conclude that the increase which, in 1974, took place in imports of starch products into France constitutes sufficient evidence to demonstrate that the applicant suffered damage as a consequence of it or, even if damage is assumed, that it was caused by the machinery of monetary compensatory amounts as it was applied at the material time.

It is only too easy to claim that the damage to be compensated for is attributable to the grant of privileges to competing undertakings and the consequences of accepting such an unspecific claim would be too serious to contemplate.

Again, apart from the fact that it would be almost impossible to establish the negative effect on the various aspects of a competitive relationship created by the existence of a subsidy granted to undertakings in other countries which might be operating in the same markets, the outcome would certainly go beyond the scope required of a direct and immediate relationship.

Under Italian and French law, purely indirect damage does not as a general rule confer a right to compensation even in the case of breach of contract. Compensation must, a fortiori, be out of the question in a noncontractual case where the damage could be indentified, if at all, only intermediately and indirectly with an intervention of the public authorities in the economy.

It follows from what I have said that, if there is no possibility of indentifying the damage with the preferential treatment of competing undertakings, it cannot be contended that the alleged damage really represents the normal consequences of the actions for which the applicant blames the Commission. For this reason, and also in view of the criteria adopted in Germany and in Great Britain with regard to non-contractual liability, there can be no question of the existence in this case of a sufficient causal relationship.

Similarly, the applicant's claim for compensation in principle for the damage which, in the field of competition, it claims to have suffered as a result of the erroneous interpretation of the abovementioned provision, underwritten by the Commission, must be rejected as unfounded.

My opinion is, therefore, that the Court should dismiss the application and order the applicant to pay the costs.

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(1) Translated from the Italian.