OPINION OF MR ADVOCATE-GENERAL REISCHL

DELIVERED ON 8 FEBRUARY 1977 (1)

Mr President,

Members of the Court,

There is not much to say about the facts of the case with which we are concerned today. They are largely known from the reference for a preliminary ruling in Case 125/75.

From that we know that the applicant in August and September 1970 entered into a pooling agreement with three other undertakings (whilst retaining its legal and economic independence) for the sale outside the Community of butter held by the German intervention agency. In August and September 1970 the applicant obtained the necessary export certificates fixing the refunds in advance as provided for in Regulation No 1100/68 of the Commission (JO L 184, p. 14). The certificates covered exports amounting to a total of 10000 tonnes for the North African countries of Algeria, Morocco and Tunisia in respect of which special refunds applied.

At the beginning of January 1971 the applicant entered into an agreement with the Belgian undertaking Corman, which was a member of the pool, for the sale of 2000 tonnes of butter with the condition that the goods were to be sent to Morocco. This was done in two shipments after the contract had been amended from fob to cif loaded on quay and the applicant had entered into the appropriate charter parties. The ships left the Community at the end of January and middle of February 1971 and arrived in Morocco on 1 and 21 February.

As regards the handling of the claims to refund by the Hauptzollamt Hamburg-Jonas, which dealt with the case, the applicant's claims to payment of the refund fixed in advance in respect of Morocco were at first allowed in respect of part of the goods at the beginning of February 1971. On the other hand difficulties immediately arose with regard to other claims to payments which in the applicant's view ought to have been made at the end of April at the latest. The Hauptzollamt was not satisfied with the documents produced by the applicant, from which it appeared only that the goods had reached the country to which they had been dispatched but sought proof that the goods had been marketed in Morocco. Since this proof was not forthcoming three notices of rejection were issued on 15 June 1972 refusing amounts of refund to a total of DM 1335900. About the same time the Hauptzollamt raised the question of the refund already paid out. Since the proof demanded by it was likewise not forthcoming it issued on 17 July 1972 and 10 October 1972 demands for repayment amounting to DM 823417.75.

Since the applicant took the view that for entitlement to the refund proof of the arrival of goods in the relevant country of destination was sufficient, and that the applicant had given such proof by means of certificates of unloading it brought proceedings in the Finanzgericht Hamburg (Hamburg Finance Court) with regard to the said five notices. One of these actions resulted in the reference for a preliminary ruling in Case 125/75, with which we are well acquainted. The Court of Justice decided that the attitude of the Hauptzollamt was correct. Granting of the refund depended on the actual import into the relevant country of destination; unloading was not sufficient and there had to be customs clearance into free circulation.

At the beginning of January 1976, that is, before the said reference for a preliminary ruling had been concluded, the applicant was concerned as to what would happen in the event of the proceedings going against it. It came to the conclusion that in that case the Community should compensate it because the Council and the Commission by the wording of the relevant texts and other statements had given the impression for a long time that proof of arrival in the relevant country of destination was sufficient basis for the claim to the refund differentiated according to country of destination. Since it feared that it would otherwise be out of time under Article 43 of the Statute of the Court of Justice of the EEC the applicant took the precaution of making known its claims to the Commission by a telex message sent on 16 January 1976.

Since it received no answer it brought an action before the Court of Justice on 17 May 1976.

To substantiate its case (I shall deal with the details later) it repeated the view already mentioned in relation to the attitude of the defendant institutions of the Community, the Council and Commission. If the institutions of the Community had clearly expressed in time what was contained in a 1974 regulation and was also declared to be correct in the preliminary ruling in Case 125/75, namely that the condition for payment of a refund differentiated according to countries of destination was customs clearance into free circulation, the applicant could have arranged the transactions in question so that the conditions of claim would have been fulfilled.

Accordingly it makes the claim first that the defendant should be ordered to pay it DM 1335900, that is, the amount of the refund which was refused it in the notices of 15 June 1972 together with interest from 1 May 1971 since the refund would have been paid out to it at the latest on 30 April 1971. In addition, since it has not yet satisfied the said demands for repayment, it claims that the defendant should be ordered to pay the relevant amount of DM 823417.75 to the Hauptzollamt Hamburg together with interest from 5 February 1971 since the Hauptzollamt can require such interest under the German regulation Ausfuhrerstattung EWG (Export Refund EEC) of 16 December 1974 (Bundesgesetzblatt Part I, p. 3555).

Further, on the basis that if the questions in issue here had been clearly resolved in time there would have been no dispute with the Hauptzollamt and in consequence the lawyers' fees, court and procedural costs would not have arisen, the applicant further claims that the defendant should be ordered to pay the said fees of DM 72922.96 together with interest at 4 % from the bringing of the action and the as yet unpaid court costs owed by the applicant of DM 28145.60 to the Gerichtskasse Hamburg and the likewise still unpaid procedural costs of DM 551.50 to the Hauptzollamt Hamburg-Jonas.

Having regard to the fact that it will not be possible to calculate the damage exactly before the national proceedings are concluded, the applicant claims a declaration that the defendants are obliged to compensate the applicant for all damage which the applicant has suffered or may yet suffer because from August 1970 to March 1971 it relied on the belief that payment of the full refunds fixed for exports to Morocco depended solely upon fulfilment of the condition that the butter had in fact arrived in Morocco and that proof of arrival was all that was needed. Alternatively the applicant claims a finding against the defendants on the question of liability.

In my opinion these claims should be considered as follows:

I — First the objections to admissibility should be considered and, since it would also make consideration of the main claim unnecessary, the objection that the action is out of time.

As we have heard, the applicant did not proceed in this manner because it wished to make complaints also against those other Communities. The action is based on Article 215 of the EEC Treaty and obviously only concerns events from the EEC sphere. This designation of the parties was chosen because the Communities have a common budget under Article 20 of the Merger Treaty and accordingly compensation has to be paid out of it.

This fact does not however justify the description of the defendants chosen. It is clear from Article 32 of the Merger Treaty that the Treaty provided only for a merger of the institutions and not of the Communities themselves. The European Communities are not therefore a single legal person but as heretofore three Communities and therefore three separate legal persons. Further, Article 215 of the EEC Treaty speaks expressly of the liability of the Community in the singular. Where compensation for damage is sought against the European Economic Community it is accordingly only that Community which can be sued.

Since however, as I have shown, it is quite clear that the applicant does not intend to proceed against the other Communities I do not consider it necessary to declare the action inadmissible on this account. In my opinion it is sufficient for the judgment to use a correct designation, that is, to refer only to an action against the European Economic Community represented by the Council and the Commisson.

2. Furthermore the Commission has doubts whether the application for a declaration as formulated in the statement of claim is admissible. It refers to the fact that the problem concerns two actual export transactions which have been completed long ago. Accordingly calculation of the damage must be possible and since an action for damages is involved there is no room for an action for a declaration.

The applicant has explained that the claim in dispute relates mainly to the costs arising from the national court proceedings. Since the proceedings have not yet been concluded and it may yet be necessary to hear evidence, it has not yet been possible to specify all the court and legal costs and the expenditure connected therewith. Moreover it is not inconceivable (and this is important in relation to the claims for interest) that the rates of interest may change.

I have the impression that these explanations are sufficient. It is clear since the judgment in Joined Cases 56 to 60/74, Kurt Kampffmeyer Mühlenvereinigung KG and Others v Commission and Council [1976] ECR 711 that Article 215 of the EEC Treaty basically allows actions for declarations. At least this applies to cases in which damage is imminent and foreseeable with sufficient certainty and the cause of the damage already exists. This is the position in the applicant's view here. Since, moreover, as the applicant has assured us, no damage is claimed other than that connected with the said two export transactions, the nature of the alleged damage is sufficiently clear and there is in fact no cause to describe the application for a declaration as inadmissible.

3. Finally with regard to the claim by the two defendant institutions that the action is barred by lapse of time, Article 43 of the Statute of the Court of Justice of the EEC provides that proceedings against the Community in matters arising from non-contractual liability shall be barred after a period of five years from the occurrence of the event giving rise thereto. Moreover, Article 43 states, and this is important having regard to the telex message of 16 January 1976 sent by the applicant to the Commission, that the period of limitation shall be interrupted if an application is made by the aggrieved party to the relevant institution of the Community. In this event the proceedings must be instituted within the period of two months provided for in Article 173; the provisions of the second paragraph of Article 175 apply where appropriate.

The Commission alleges in this connexion that because Article 43 takes as basis the event giving rise to the damage and not the occurrence of the damage, only acts which occurred after 16 January 1971 come into question as far as it is concerned; claims arising from events occurring before that period, on which the applicant's case is primarily based, were already barred by lapse of time in 1975. The Council stresses its view that the said telex message could only affect the institution addressed and not the Council. All that is relevant for the Council therefore is the date when the action was brought. If this is borne in mind then it is seen that all the events relevant to the applicant's claims had already taken place more than five years before 17 May 1976, the date when the action was brought. According to the applicant's own statements it is to be accepted that the refunds should have been paid at the latest on 30 April 1971. Shortly thereafter, that is, in any event before 17 May, damage may already be spoken of because the payments were not made.

With regard to this discussion of the beginning of the limitation period let me first refer to the remarks of Much in his report on ‘die Haftung der Europäischen Gemeinschaften für das rechtswidrige Verhalten ihrer Organe’ (liability of the European Communities for illegal behaviour by their institutions) (Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, Volume 44, p. 723 et seq.) with regard to the interpretation of Article 43 of the Statute of the Court of Justice of the EEC. His view is that the limitation clause contained therein is very imprecise not least of all because of the different wording in the statutes for the various treaties. In particular, it is not clear whether the period of limitation begins to run from the time of the event causing the damage, the time when the claim to compensation arose or the time when the aggrieved party had knowledge of the damage and of the party liable for compensation so that an action for wrongful act or omission might be possible and could be expected. This in my view is correct.

I see also no compelling reasons for the narrow interpretation recommended by the defendant institutions; I do however see arguments for a more generous interpretation.

Thus it is significant that there is no rule in the legal system of any Member State such as the defendants consider proper in the context of the Community. The beginning of the period of limitation including that in relation to claims for a wrongful act or omission is in the majority of Member States the time when the damage occurred. This is the case in Italy, Belgium, the Netherlands, England and Ireland, at least in a number of circumstances. Other Member States go even further. They take as basis the time when the fact of damage should have been known (Denmark and Scotland) or was known (France) or even (as in German law) when the damage and the identity of the person liable for compensation were known so that an action may be regarded as reasonable.

Further the case-law shows that the Court itself is not in favour of a narrow interpretation. It is true that this appears from the judgment of 14 December 1962 in Joined Cases 46 and 47/59, Meroni and Co., Erba, and Meroni and Co., Milan v High Authority of the ECSC [1962] ECR 411, which concerned the ECSC Treaty; since however the French version of the relevant part of Article 40 of the Statute of the Court of Justice of the ECSC agrees with that of Article 43 of the EEC Statute this case-law may be regarded as significant also in relation to the EEC Treaty. It does in fact appear from the said judgment that it is not the happening of the event causing the damage which is important; on the contrary, in that case the point of reference was the final closing of the account in respect of the equalization levy on ferrous scrap because only then did it become clear whether there was any definitive damage as a result of the making of illegal equalization payments, which was the ground of liability, and the quantum of damage.

If however this is taken as the criterion in the present case, namely the decisive nature of the happening of the damage, and if in addition the question is left open whether the opinion of Much and Ipsen (Europäisches Gemeinschaftsrecht, paragraph 27, Z. 14) according to which the basis is the claimant's knowledge and the arising of the possibility of bringing an action, the following observations may be made on the particular issues:

— With regard to the refusal of the refunds it is in fact correct that damage became apparent at the end of April 1971 because in the normal course of events payment should have been made by then. Apart from the fact that in relation to the Commission this would be sufficient to dispose of the objection that the action is barred by lapse of time, it may be said that there was not at that time the necessary certainty that damage would occur to bring an action because the applicant was still negotiating with the Hauptzollamt for some time after that. There was a certainty only with the issue of express notices of rejection. Counting from then on, that is, from 15 June 1972 — and to do so seems altogether reasonable — there can be no question of the expiry of the period of limitation even in relation to the Council at the time the action was commenced.

— With regard to the amounts of refund which the applicant is to repay it is clear that the criterion cannot be the payment by the Hauptzollamt. Only after the issue of the demands for repayment in 1972 can there be said to be damage here. At most it may be said, and this is sufficient to dispose of the objection that the action is barred by lapse of time, that damage might be contemplated in this respect in the summer of 1972 namely when the Hauptzollamt issued the said notices of rejection.

— Finally so far as this objection is concerned the claims relating to the lawyers' fees already paid by the application as well as the court costs and procedural costs still to be paid should present no problems. With regard to the two last-mentioned costs it is clear that they arose only after the issue of the notices of rejection and demands for repayment. Even the lawyers' fees which arose in respect of the negotiations with the Hauptzollamt, the Federal Ministry for Finance and the Commission may be said to have been incurred basically after the payment of the amounts of refund in respect of the export transactions now in dispute became doubtful, that is, largely after May and June 1971.

In view of these considerations it may accordingly be observed that the objection that the action is barred by lapse of time is not valid. It is thus also clear that it is not necessary to discuss the question raised by the Council at some length whether the telex message sent to the Commission could also interrupt the running of the limitation period in respect of the Council. There is accordingly nothing to stop further consideration of the claims made.

II — Substance

The claims which the applicant makes against the Council and the Commission are based, as already mentioned, mainly on the complaint that the defendants' statements between 1967 and 1971 have given the wrong impression, as shown by the reference for a preliminary ruling in Case 125/75, that it was sufficient to give entitlement to a differentiated refund if the goods physically reached the country of destination. The applicant made its arrangements accordingly. If the defendants had taken the trouble to specify the conditions for entitlement to the refund with sufficient clarity at the proper time, the applicant would have arranged its transactions so that it would have been entitled to a refund. In this case there would also have been no dispute with the Hauptzollamt Hamburg-Jonas and the lawyers' fees, court and procedural costs connected therewith would not have arisen. In addition the applicant complains that the Commission did not make known which undertakings came into consideration as the control and surveillance companies within the meaning of Article 8 of Regulation No 1041/67 (OJ, English Special Edition, 1967, p. 323) and it did not see to it that the competent German authorities published such a list, assuming it to have been their responsibility. Accordingly the applicant used a firm in Tangier whose certificate of unloading was not accepted by the Hauptzollamt Hamburg-Jonas as sufficient evidence.

In my view there can be no question of this.

It is important to note, as appears from the report of the customs control department of the Oberfinanzbezirk Hamburg of May 1971 produced by the applicant, that at a meeting of the pool on 3 November 1970 it had been noted that the 9000 tonnes of butter intended for North Africa were causing concern. In addition the applicant has itself stated that of the 18000 tonnes of EEC butter exported to Morocco between 1 February and 4 March 1971 it had only been possible for 88 tonnes to remain in Morocco because the annual requirements amounting to 11000 tonnes had already been met. In these circumstances it cannot be expected that the Corman undertaking which bought the butter from the applicant would have agreed to a condition that the butter should be marketed in Morocco. Nor is there any evidence that the applicant would have found other parties willing to accept such conditions, namely potential purchasers as was stated in the oral procedure, who, thanks to generous terms of payment, would have stored the goods for the purpose of subsequent sale in view of rising world market prices.

This means that there are in fact considerable doubts as to the validity of the claim for the payment of the relevant amounts of refund. Disregarding the claims to lawyers' fees and court costs, at most different amounts of damage would have to be considered such as would perhaps have arisen had the applicant applied for advance fixing for reduced quantities in respect of Morocco or if it had even foregone the Morocco transaction altogether subject to forfeiture of the deposit.

2. The decisive point on which the claims are founded is, as we have seen, the allegation that the applicant was convinced, as a result of statements of the defendant institutions of the Community, that proof of arrival was sufficient for entitlement to a refund, that is, that it acted bona fide.

There are considerable doubts at the outset on this subject and this relates to all the claims made. They are based in part on a letter of offer dated 19 November 1970 by the applicant's then manager addressed to the export undertaking Koospool in Prague, which is appended to the aforementioned report of the customs control department as the third annex. It does not seem to me important whether the said manager, who was employed by the applicant until 20 February 1971, was authorized to act on his own and whether the transaction mentioned was carried out. In the present connexion the only question is the appraisal of the situation by the applicant's top management and for this a letter drafted by a manager acting on his own may be significant. The said letter is interesting in that proof was sought of the purchaser that the goods had reached the country of destination and remained there. Moreover bank guarantees were required of the purchaser to the amount of the refund in case repayment of the refunds was demanded of the seller by reason of non-fulfilment of the said conditions. In my opinion it is not possible to see, in view of this fact, that is, the fear that repayment of the refunds might be demanded if the goods did not remain in the country of destination, how the applicant could have acted on the assumption that the mere arrival of the goods in the country of destination sufficed to give entitlement to the refund.

In addition there is what we were told in the proceedings with regard to the practice of the Hauptzollamt Hamburg-Jonas as regards the provision of proof and in particular in relation to the applicant prior to the time when the transactions in question here were entered into. As appears from a communication from the Bundesfinanzministerium which the Commission has reported and which agrees with a report from the permanent representation of the Federal Republic of Germany on the application of Regulation No 1041/67 of October 1970 it must be assumed that the Hauptzollamt Hamburg, although largely satisfied with proof of arrival, has since 1968 required further documents in a number of cases on the export of milk products. There is mention of the proof of import by means of customs documents, accounts and freight documents certified by the customs and evidence of arrival certified by the customs and veterinary certificates. In particular, in regard to transactions conducted by the applicant, certificates by customs offices on import and payment of customs charges or certificates of the Polish State trading organization on customs clearance on importation were produced at the request of the Hauptzollamt in respect of exports of butter to Hungary and Poland in 1969 and 1970 because there was suspicion that the prohibition on refunds in respect of trade between the two zones of Germany was being circumvented. Copies of these documents have been produced for us by the Commission together with their answers of 6 January 1977. This too tends to show that at the end of 1970 the applicant cannot still have been convinced that simple proof of arrival sufficed for entitlement to a refund.

If the said documents are regarded as sufficiently probative, and this seems to be arguable, then the claims made can already be rejected for the aforementioned reasons.

3. I shall not however leave it there, but consider whether statements of the defendants, as the applicant maintains, were capable of misleading exporters into thinking that they had only to adduce proof of arrival under the refund rules.

Various matters have to be considered:

— Primarily Regulation No 876/68 of the Council (OJ, English Special Edition 1968 (I), p. 234) and Regulation No 1041/67 of the Commission (OJ, English Special Edition 1967, p. 323) as amended by various amending regulations;

— Comparisons of these provisions with other relevant regulations of the Community;

— An answer by the Commission to a question in Parliament in 1970;

— statements by officials of the Commission in reply to questions by the applicant's lawyer; and

— The actual practice of the national refund agencies.

Before I go into this I should like to recall that the only complaint made against the Council is that it failed to deal with the legal position clearly in Regulation No 876/68 or to require the Commission in accordance with Article 152 of the EEC Treaty to introduce a clear regulation. The claims made against the Council are thus solely based on this.

Further the various claims made by the applicant must be kept separate. It must be borne in mind in particular that with regard to the main claim relating to the payment of the amounts of refund at most matters are relevant which occurred until the time when the goods arrived in Morocco, that is, until the end of February 1971, for until then the applicant may be assumed to have had a power of disposal. Matters in respect of the period after spring 1971 are therefore relevant only in relation to the claims for the payment of lawyers' fees and court and procedural costs.

(a) After these preliminary remarks I will first turn to the question whether Regulation No 876/68 of the Council and Regulation No 1041/67 of the Commission could give the impression, as the applicant thinks, that only arrival in the country of destination needed to be proved.

I can deal relatively briefly with this for I have already dealt with these questions at length in my opinion in Case 125/75.

On that occasion I stressed that in interpreting these regulations it was necessary in accordance with a current method to have regard to their general system as well as to the meaning and objective of the refund rules as these emerged in particular from the recitals in the preamble to the regulations. With regard to Regulation No 876/68 it appeared that ‘reached’ must relate to the market and accordingly importation into the particular country and marketing therein is necessary. With regard to Regulation No 1041/67 as amended by subsequent regulations it was to be noted that Article 8 in principle took proof of arrival as the essential point. However, it is also possible to require further evidence where there is doubt of actual marketing and this in the context cannot relate solely to arrival since additional forms of proof are mentioned. Further it appears from Article 4 and in particular having regard to the recitals in the preamble that in cases of doubt proof may be required of importation and the conditions under which importation was effected. The Court followed this as I have already mentioned in the introduction in that it stressed with regard to Regulation No 876/68 that to justify a claim for a refund it was essential that there should have been actual importation into the country of destination, that is, customs clearance into free circulation.

Thus it is clear to me that the relevant basic regulations with the little effort of interpretation which is well within the capacity of the large commercial undertakings with their competent advisory staff cannot be said to be capable of misleading the applicant as described.

(b)Other regulations of the Commission of 1970, 1971 and 1972 are also relevant (but it must be remembered that those originating in 1971 and 1972 can in no way be a basis for the applicant's main claim).

The applicant thus takes the view that when Regulation No 1201/70 (JO 1970, L 140, p. 12) and No 1420/70 (JO 1970, L 157, p. 16) require proof of definitive importation for refunds in respect of butter exports to Romania and when Regulations No 914/71 (JO 1971, L 98, p. 44) No 1005/71 (JO 1971, L 109, p. 20), No 1467/71 (JO 1971, L 154, p. 12), No 1939/71 (JO 1971, L 203, p. 7) and No 676/72 (JO 1972, L 79, p. 84) in relation to refunds for exports of dairy products and butter to particular areas expressly mention release into free circulation and appropriate proof, it was possible to infer from this that only in such cases specifically provided for might additional proof going beyond arrival be required and that in all other cases proof of arrival was sufficient.

It must be admitted that these are arguments which are calculated to impress. In my view however they are not ultimately cogent.

Everyone knows that as a rule it is necessary to be very careful with such conclusions e contrario. In the present case the fact is clear that, according to the basic regulations on the right to a refund, reaching the market is the criterion and that over and above the proof of arrival which must normally be supplied the regulations allowed additional proof of import and marketing to be required. Against this background it cannot however seriously be argued that without express amendments of these regulations there was ground for assuming that something else applied because for certain special cases which are easily explicable on grounds of trade policy and legal characteristics of the countries concerned, proof of definitive importation, that is, of marketing, or proof of customs clearance into free circulation was always required.

The same applies, and let me say this immediately, to the reference to the fact that the Commission in Case 6/71, Rheinmühlen Düsseldorf v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1971] ECR 823 took the view in a related problem that customs clearance into free circulation was not decisive and also to the reference to the answer which the Commission gave to Question No 311/69 on 18 March 1970 in Parliament (JO 1970, C 38, p. 1). As we know, in this answer in relation to refunds for butter exports to Morocco it was explained with regard to Article 8 of Regulation No 1041/67 that the refunds would be paid ‘only if it is proved that the goods have actually arrived in the country of destination’ and it was stated further: ‘After that the Commission can no longer follow what becomes of the goods exported’.

With regard to the first issue the observation suffices in my view that the legal position submitted for judgment was different for it related to rules applicable during the transitional period. At that time the Member States were at liberty to grant refunds; moreover it is significant that mention was made only of exports and not of reaching a country of destination.

With regard to the second issue I have already stated in my opinion in Case 125/75 that it was only a brief answer to one of several subsidiary questions, which naturally could not deal exhaustively with the legal problems and that it would mean attaching far too much importance to the purpose of an answer to a political question if it were claimed to be an authentic interpretation of the relevant provisions. No one could infer from that that, despite the fact that the relevant regulations show that additional proof may be required, in fact only proof of actually reaching the country of destination needed to be given. Moreover it should not be overlooked that it was also stressed in the answer with regard to the variable nature of the refunds that this was necessary in order to take account of the particular situation regarding competition in relation to certain third countries and this, properly understood, includes a reference to the criterion of the situation of the market.

All this already permits a finding that the Council can certainly not be accused of a wrongful act or omission. Regulation No 876/68 of the Council is not misleading as claimed by the applicant. Moreover, the Council had no cause, quite apart from the fact that the existence of any such kind of obligation of surveillance has not been proved, to require the Commission, as a result of the additional legal situation created by the latter governing proof in detail, to ensure that there was greater clarity or to provide for this itself in a regulation of the Council.

This does not however conclude the discussion of the complaints made against the Commission. In the applicant's view remarks concerning its problem by officials of the Commission and the practice of the national refund agencies which was known to the Commission and which it accordingly tolerated were of significance with regard to the applicant's attitude.

—After what I have said I can be quite brief with regard to the second issue. It is important above all that the practice of the Hauptzollamt Hamburg-Jonas prior to the relevant transactions by the applicant was by no means such that the only proof of arrival ever demanded was that of physical arrival at the destination and nothing more. As we have seen, further proof, which can be regarded as additional proof within the meaning of Articles 4 and 8 of Regulation No 1041/67, was repeatedly required. From another point of view, since it was the German refund agency which mainly concerned the applicant, it is basically irrelevant what the corresponding practice in other Member States such as Belgium and the Netherlands appeared to be. If their practice was such as the applicant claims, namely always to require only proof of arrival (and my impression is that at least in France and in the Netherlands this was not the case), it should be observed that this would be relevant to the applicant's argument only if it were shown (which it has not been) that the refund agencies of other Member States had cause at that time for misgivings, that is, for the assumption that devious transactions were afoot, and that they nevertheless did not require appropriate additional proof in such cases. Moreover it should be added in this connexion that any differing treatment of the right to a refund in the Member States and the fact that the Commission did nothing about it is irrelevant to the present case because the applicant's claims for compensation are not based on infringement of the prohibition against discrimination but only on the misleading of the applicant with regard to the conditions for claiming the refund which, as we have seen, does not come into question.

—With regard to the applicant's reference to remarks made by certain officials of the Commission, as to which only notes made by the applicant's counsel exist, it must be said on the other hand as far as Mr Ehlermann is concerned that he expressly stressed that he was giving only a personal opinion since he was no longer responsible for that sphere. Moreover he wished to make further inquiries, so that it could not be said that a definitive attitude had been adopted at the time of the telephone conversation with the applicant on 12 February 1971, to which reference has been made. So far as concerns what Mr Pierru said it appears from the note produced by the applicant simply that Mr Pierru was informed that the representatives of the Federal Republic of Germany would be satisfied with proof that the goods had in fact reached Morocco and would not require proof of marketing; it does not however follow that this was also the opinion of the said official of the Commission. Both matters, even if they can be attributed to the Commission, are scarcely capable of providing a solid basis for business transactions or for starting legal proceedings.

In addition there is, as also appears from the documents produced by the applicant, the fact that the applicant knew on 12 November 1971 that the Management Committee for Cereals was of the almost unanimous opinion that proof of unloading was not sufficient and that it must also be proved that a sale had been concluded with a buyer in the country of destination. Moreover it was expressly stated in a letter from the Commission to the applicant's counsel on 16 February 1972 that in the opinion of the officers of the Commission there was nothing in Community law to prevent Member States from imposing additional conditions in particular cases for the grant of a higher refund as provided for in Article 4 of Regulation No 1041/67 or from requiring supplementary forms of proof. It was accordingly clear at that time at the latest, that is, before the proceedings were brought against the Hauptzollamt Hamburg-Jonas, that the applicant's narrow view of the law on proof with regard to the right to a refund, should it ever have amounted to a conviction, was not shared by the relevant Community circles.

It is thus clear in all respects that the Commission cannot be reproached for giving the impression by remarks attributable to it that proof of arrival was all that was necessary for refunds. At the same time and in the same way it is clear that one of the most essential conditions for the claims to compensation made by the applicant is lacking and for this reason it is unnecessary to go into the other conditions necessary for a claim based on a wrongful act or omission.

4.In conclusion there remain however two observations. One relates to the complaint that the Commission neglected to publish a list of recognized control and surveillance companies within the meaning of Article 8 of Regulation No 1041/67 or to insist on its publication by the responsible German authorities. The other relates to a procedural issue raised by the applicant under Article 91 of the Rules of Procedure.

(a)With regard to the first-mentioned complaint it suffices to observe that the basis of such an obligation on the part of the Commission has not been established. It may well be assumed (but for the present this can remain open) that the national authorities in this respect act on their own responsibility. It is moreover apparent that even if any such obligation had been fulfilled the applicant's position would not have been affected. The refund would have been refused because the applicant could not produce any additional proof of marketing. This would still have been lacking even after publication of the list, of the absence of which the applicant complains, for the applicant has obviously concerned itself only with certificates of unloading, that is, simply with proof of arrival.

(b)The applicant raised a procedural issue with regard to the observation made by the Commission in the defence that the applicant's counsel had represented the applicant, ‘like other members of the pool, in a whole series of dubious export transactions’. It claimed that this was not only irrelevant to the action but also incorrect and defamatory and it asked that this sentence be struck out of the Commission's pleading. In reply to this the Commission redrafted the sentence in question as follows: ‘The efforts of Dr Wendt at the time were directed not only towards the matters in question here but also towards the pursuit of claims to refunds in respect of other export transactions which were the subject of litigation’.

In my view it may be taken that in this way the procedural issue has lost its purpose because the defamatory matter has been removed. Whether the facts have in this way been correctly reported and whether the observations are relevant did not have to be decided on the procedural issue.

On the other hand it must however be recognized that the steps taken by the applicant were not completely without justification. Obviously the Commission's representative went further in his observations than was necessary for the purposes of the proceedings and further than could be regarded as permissible if respect for the representative of the opposite party is to be preserved. Regard should be had to this in the decision on costs. An order for costs against the applicant, which follows from the fact that its main applications have not been successful, should therefore exclude the costs of the procedural issue; the costs in this respect should be borne by the Commission.

III —In view of all the foregoing I propose that the action brought by Milch-, Fett- und Eier-Kontor GmbH against the European Economic Community represented by the Council and the Commission should be rejected as unfounded. The applicant should be ordered to bear the costs of the action with the exception of the costs of the procedural issue which the Commission should bear.

(1) Translated from the German.