Judgment_paragraph 1. · Julius Kind KG v European Economic Community (106/81)

1.First, the applicant considers its action based on the second paragraph of Article 215 of the EEC Treaty to be admissible. It submits that it has incurred and will continue to incur substantial, immediate and foreseeable losses as a result of the unlawful conduct of the Council and Commission of the European Communities. It points out that it has no legal remedy, however, apart from an action based on noncontractual liability, whereby it may establish the existence of such unlawful conduct. It does not meet the conditions of admissibility for an application for annulment, cannot bring an action for failure to act and, lastly, not being itself liable to the claw-back (for which the exporter from the United Kingdom is responsible) it is unable to bring proceedings enabling it to have submitted to the Court a question for a preliminary ruling on the validity of the provision adversely affecting it. Moreover, the applicant points out that resort to the last-mentioned form of proceedings in order to gain access to the Court would be artificial and would not enable the Court to adjudicate upon the damage sustained. The applicant therefore considers that the application for compensation which is provided for in the second paragraph of Article 215 is the most logical remedy available to it because it enables a decision to be given on both the validity of the Community provisions and compensation for the loss incurred at one and the same time.Finally, the applicant submits that the case-law of the Court, as illustrated in particular by its judgments of 2 March 1977 (Case 44/76 Milch-, Fett- und Eier-Kontor GmbH v Council and Commission of the European Communities [1977] ECR 393) and 2 June 1976 (Joined Cases 56 to 60/74 Kurt Kampffmeyer Mühlenvereinigung KG and Others v Commission and Council of the European Communities [1976] ECR 711) confirms that under the second paragraph of Article 215 the Court may establish not only the damage incurred so far but also the future damage should the institutions pursue their unlawful conduct.