Société pour l'Exportation des Sucres SA v Commission of the European Communities (132/77)

(a)The application for annulment

— The action is already inadmissible by reason of the fact that the procedure resulting in the alleged refusal did not take place in the present case.The procedure of Article 4 (2) of Regulation No 1608/74 was initiated after an informal exchange of views between the Member State concerned and the Commission. Before asking formally for authorization to make use of the clause to ensure natural justice provided for by the regulation, the said State informed the Commission of the contracts of the kind referred to in Article 4 (1) in respect of which it was contemplating granting exemption from monetary compensatory amounts. That was a mere information procedure, on which occasion the Commission may give its opinion, in a general way, on the criteria which the Member State intends to pursue in applying Regulation No 1608/74. Only if the Member State did not agree with the Commission would the formal procedure of Article 4 (2) be opened.The memorandum sent by the French Permanent Representation to the Commission on 19 January 1977 concerning the ‘intention to grant exemptions’ in relation to a number of contracts, some of which had been entered into between March 1974 and April 1975, does not come within the scope of the formal procedure of Article 4 (2) but within that of the aforementioned preliminary information. By a telex message dated 25 February 1977 the Commission informed the said Representation that since contracts were involved which were entered into on dates on which monetary compensatory amounts applied in France, there appeared to be no justification for exempting the exports in question from the monetary compensatory amounts applicable as from 25 March 1976. On this issue the French Permanent Representation replied by telex message dated 15 March 1977:‘The French authorities share the views of the Commission regarding the contracts entered into between 19 January 1974 and 19 May 1975.’Apparently this is the exchange of views to which the Intervention Agency refers in its letter of 30 September 1977 sent to the applicant. The reference in that letter to the ‘examination of the statement of intention to grant exemptions notified by the French Government to the Commission at the beginning of 1977’ related solely to that exchange of views between the French Government and the Commission and not to an opinion in the context of the formal procedure of Article 4 (2) of the regulation. This is especially so since the contracts in question registered with the Intervention Agency under Nos. S 125 and S 172 had never been submitted to the Commission.— Further, it is wrong to see in the letter of 7 October 1977 from the Director General for Agriculture to the applicant a measure against which an application for annulment might be directed. It is simply a letter supplying information sent in answer to a request for information; as such it cannot bind the Commission or, on the other hand, express a final intention capable of having legal effects.

(b)The application far damages

— Since for the reasons set out above the Commission, or its departments, cannot be held to have adopted any measure and the refusal to grant the exemption in question is the act of the French administration, there is no causal link between the unlawful act and the loss to be compensated such as is necessary to found any liability on the part of the Community under the second paragraph of Article 215 of the Treaty.— Even assuming, moreover, that the Court were prepared to consider the refusal on the part of the French administration to exempt the contracts in question as being due to the ‘attitude’ of the Commission, it would be the French courts which would have jurisdiction in an action brought against that refusal. The latter is a national measure implementing Regulation No 1608/74 and the proceedings instituted against it relate to the lawfulness of the imposition by the French administration of that part of the monetary compensatory amounts which exceeded those in force on the day the contracts were entered into.— The application for damages contains an insufficient statement of the grounds on which it is based, having regard to Article 38 (1) of the Rules of Procedure of the Court, since the applicant has not even advanced prima facie evidence of the preconditions for liability on the part of the Commission under the second paragraph of Article 215 of the Treaty.The applicant takes the view first of all that the fact that there has been no decision on the part of the Commission specifically referring to the contracts in question is not in itself sufficient to exclude the existence of a measure for which the Commission is responsible and which adversely affects the applicant. The applicant has never claimed that the Commission has refused to grant exemption from the monetary compensatory amounts in respect of the aforementioned contracts. It has maintained and continues to maintain that the Commission objected to the exemption from the monetary compensatory amounts of ‘certain contracts’ solely because the were entered into before May 1975 and it is ‘because’ of that attitude that the French administration refused the application for exemption lodged by the applicant.The measure contested in the present case is thus contained at points 2 and 3 (first sentence) of the telex message sent by the Commission to the French Permanent Representation on 25 February 1977, worded as follows:2. The five following cases do not justify the application of Regulation No 1608/74:P 30 A W contract of 23 July 1974P 30 B B contract of 5 March 1974P 42 A contract of 25 March 1975P 45 B contract of 4 April 1975P 58 K contract of 1 August 1974In all these cases the contracts were entered into at a time when those concerned had to take account of the application of monetary compensatory amounts. On the dates in question monetary compensatory amounts applied in France and their abolition did not occur until May 1975. Accordingly there appears to be no justification for exempting the exports in question from the monetary compensatory amounts applicable as from 25 March 1976.3. The French Government is requested to withdraw the cases referred to at point 2.’

(a)The application for annulment

— The explanations given by the Commission regarding the way in which in practice the procedure provided for by Article 4 (2) of Regulation No 1608/74 was conducted and the distinction which it makes in this respect between providing information and the formal procedure under the said article would seem to show that ‘in fact’ the Commission established a different procedure in this case from that provided for by the regulation.First of all, it appears from the wording and objectives of Article 4 (2) that the aim of the procedure referred to therein is to allow the Commission to manifest its opposition if necessary to the Member States' applying the ‘natural justice’ clause to certain contracts. It is accordingly difficult to understand why the Member State in question should begin the said procedure only when it is aware of the views of the Commission and knows that such views are unfavourable.Secondly, contrary to its claim that consideration of the contracts notified for purposes of information prior to the formal procedure of Article 4 (2) offers it an opportunity to interpret this or that criterion laid down in Article 2 of the regulation, the Commission has no power of interpretation in this respect. Interpretation of a Community measure is a matter for the courts; an authoritative interpretation must have the same form and follow the same procedure as that of the measure in question.In the third place, the establishment of a procedure for ‘information’ prior to the formal procedure of Article 4 (2) of the regulation would reverse the rôles and responsibilities in relation to what is provided for in the said article. Further, by means of such a procedure the Commission would escape, or at least tend to escape, from its responsibilities and would cause the Management Committee to be excluded from participation since in practice it would never be consulted.— However that may be, the documents annexed to the application do not show that the cases with regard to which the Commission manifested its opposition to exemption from the monetary compensatory amounts were considered in the context of ‘a mere information procedure’. On the contrary, the memorandum sent by the French Permanent Representation on 19 January 1977 was an official notification of the ‘intention to grant exemptions’ formed by France in application of Regulation No 1608/74 so that the formal procedure of Article 4 of the said regulation was thereby already opened. The Commission was moreover aware of it, for in asking France by telex message of 25 February 1977 for particulars in order to form a final assessment of a certain number of cases (other than those concerned in the present action) it invited the French authorities to give such particulars before 2 March 1977, that is to say before the expiry of the period of six weeks provided for in Article 4 (2) of the regulation. It even added that in the absence of such particulars the French Government was invited temporarily to withdraw the files in question ‘but to re- submit them as soon as it has been possible to answer the questions raised’ (last part of point 3 of the telex message). The Commission's concern thus to regain the period of six weeks laid down by Article 4 (2) of Regulation No 1608/74 shows that the procedure referred to in that provision had clearly been instituted. Further, the Commission's attitude with regard to the contracts entered into before May 1975, as appears from the aforementioned telex message, is firm and without reservation, contrary to that expressed with regard to the cases referred to at point 1 of the same telex message. It is obviously only in relation to the latter cases that it is possible to speak of an ‘exchange of views’ or ‘information’.— The fact that the contested measure mentioned expressly only certain contracts and not others is quite fortuitous, since the notification by the French Government of its intention to grant exemptions was given in successive dispatches and the Commission was required to manifest any objection it might have within the period provided for in Article 4 of the regulation, which begins to run ‘from the day on which it is informed’.— The fact that the Management Committee was not consulted does not mean that the objection raised by the Commission to the intention to grant exemptions was without any legal effect. Although a measure taken contrary to the rules of procedure is unlawful, it must be applied so long as it is not annulled.— Finally, the contested measure is of direct and individual concern to the applicant within the meaning of the second paragraph of Article 173 of the EEC Treaty.

(b)The application for damages

— The applicant's position is quite different from that which the Commission seems to attribute to it. The applicant is asking quite simply for exemption, and not partial exemption, from the monetary compensatory amounts for the reasons set out in its application. Further, it is not the lawfulness of the imposition of the monetary compensatory amounts by the French administration which is in issue, but the lawfulness of the measure by which the Commission objected to exemption from those amounts. The circumstances in issue are thus to be distinguished from those concerned in Joined Cases 12, 18 and 21/77. Accordingly, the defendant's argument that the applicant should have brought its case before the French courts on the ground that the refusal by the French administration to exempt the contracts in question is a ‘national measure implementing Regulation No 1608/74’ has no legal foundation.— As for the Commission's objection that the applicant has not given a sufficient statement of the grounds on which its application for damages is based, it is clear that the argument is the same as that put forward in relation to the application for annulment. It is apparent from the application that the applicant considers that the Commission or its departments have acted or conducted themselves unlawfully in having caused the French administration to refuse to grant exemption from the monetary compensatory amounts, thus violating the spirit and the letter of Regulation No 1608/74.

Costs