Judgments nº T-9/95 of Court of First Instance of the European Communities, September 27, 2007

Resolution DateSeptember 27, 2007
Issuing OrganizationCourt of First Instance of the European Communities
Decision NumberT-9/95

In Joined Cases T-8/95 and T-9/95,

Wilhelm Pelle, residing at Kluse-Ahlen (Germany),

Ernst-Reinhard Konrad, residing at Löllbach (Germany),

represented by B. Meisterernst, M. Düsing, D. Manstetten, F. Schulze and W. Haneklaus, lawyers,

applicants,

v

Council of the European Union, represented initially by A. Brautigam and A.-M. Colaert, and subsequently by A.-M.Colaert, acting as Agents,

and

Commission of the European Communities, represented by D. Booß, T. van Rijn and M. Niejahr, acting as Agents, assisted initially by H.-J. Rabe and G. Berrisch, subsequently by H.-J. Rabe and M. Núñez-Müller, and latterly by H.-J. Rabe, lawyers,

defendants,

APPLICATIONS for compensation under Article 178 of the EC Treaty (now Article 235 EC ) and under the second paragraph of Article 215 of the EC Treaty (now the second paragraph of Article 288 EC) for damage allegedly suffered by the applicants as a result of the application of Council Regulation (EEC) No 857/84 of 31 March 1984 adopting general rules for the application of the levy referred to in Article 5c of Council Regulation (EEC) No 804/68 in the milk and milk products sector (OJ 1984 L 90, p. 13), as supplemented by Commission Regulation (EEC) No 1371/84 of 16 May 1984 laying down detailed rules for the application of the additional levy referred to in Article 5c of Regulation No 804/68 (OJ 1984 L 132, p. 11),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

composed of M. Vilaras, President, E. Martins Ribeiro and K. Jürimäe, Judges,

Registrar: J. Plingers, Administrator,

having regard to the written procedure and further to the hearing on 23 January 2007,

gives the following

Judgment

Legal context

The system of reference quantities

1 Council Regulation (EEC) No 1078/77 of 17 May 1977 introducing a system of premiums for the non-marketing of milk and milk products and for the conversion of dairy herds (OJ 1977 L 131, p. 1) provided for the payment of a non-marketing premium or a conversion premium to producers who undertook to cease marketing milk or milk products for a non-marketing period of five years or to cease marketing milk or milk products and to convert their dairy herds to meat production for a conversion period of four years.

2 Milk producers who entered into an undertaking under Regulation No 1078/77 are commonly known as -SLOM producers-, the acronym originating from the Dutch expression -slachten en omschakelen- (slaughter and conversion) describing their obligations under the non-marketing or conversion scheme.

3 Council Regulation (EEC) No 856/84 of 31 March 1984 amending Regulation (EEC) No 804/68 on the common organisation of the market in milk and milk products (OJ 1984 L 90, p. 10) and Council Regulation (EEC) No 857/84 of 31 March 1984 adopting general rules for the application of the levy referred to in Article 5c of Regulation (EEC) No 804/68 in the milk and milk products sector (OJ 1984 L 90, p. 13) introduced from 1 April 1984 an additional levy on quantities of milk delivered beyond a reference quantity to be determined per purchaser within a guaranteed total quantity for each Member State. The reference quantity exempt from the additional levy was equal to the quantity of milk or milk equivalent, either delivered by a producer or purchased by a dairy, as decided by the Member State, during the reference year, which in the case of the Federal Republic of Germany was 1983.

4 The detailed rules for the application of the additional levy referred to in Article 5c of Council Regulation (EEC) No 804/68 of 27 June 1968 on the common organisation of the market in milk and milk products (OJ 1968 L 148 p. 13) were laid down by Commission Regulation (EEC) No 1371/84 of 16 May 1984 (OJ 1984 L 132, p 11).

5 Producers who did not deliver any milk during the reference year adopted by the Member State concerned, pursuant to an undertaking entered into under Regulation No 1078/77, were excluded from the allocation of a reference quantity.

6 In Case 120/86 Mulder [1988] ECR 2321 (-Mulder I -) and Case 170/86 von Deetzen [1988] ECR 2355, the Court of Justice ruled that Regulation No 857/84, as supplemented by Commission Regulation (EEC) No 1371/84 of 16 May 1984 laying down detailed rules for the application of the additional levy referred to in Article 5c of Regulation (EEC) No 804/68 (OJ 1984 L 132, p 11), was invalid in so far as it did not provide for the allocation of a reference quantity to producers who, pursuant to an undertaking entered into under Regulation No 1078/77, did not deliver any milk during the reference year adopted by the Member State concerned.

7 Following Mulder I and von Deetzen, paragraph 6 above, on 20 March 1989 the Council adopted Regulation (EEC) No 764/89 amending Regulation No 857/84 (OJ 1989 L 84, p. 2), which entered into force on 29 March 1989, in order to allow the allocation, to the producers who fell within the scope of those judgments, of a special reference quantity representing 60% of their production during the 12 months preceding their undertaking to cease marketing or to convert given under Regulation No 1078/77.

8 Producers who had entered into non-marketing or conversion undertakings and who, pursuant to Regulation No 764/89, received a -special- reference quantity are known as -SLOM I producers-.

The rules concerning compensation and limitation

9 By an interlocutory judgment in Joined Cases C-104/89 and C-37/90 Mulder and Others v Council and Commission [1992] ECR I-3061 (-Mulder II-), the Court of Justice ruled that the Community was liable for the damage suffered by certain milk producers who had given undertakings under Regulation No 1078/77 and had subsequently been prevented from marketing milk as a result of the application of Regulation No 857/84 as supplemented by Regulation No 1371/84. The Court called upon the parties to agree on the amounts of damages payable.

10 Following that judgment, the Council and the Commission published Communication 92/C 198/04 in the Official Journal of the European Communities of 5 August 1992 (OJ 1992 C 198, p. 4, -the Communication of 5 August 1992-). The Communication reads:

-Following the judgment [Mulder II, paragraph 9 above] -, the Community institutions deem it necessary to notify the parties concerned of the following:

(1) The Court of Justice has recognised the Community's non-contractual liability under Article [288 EC] vis-à-vis all producers as defined in Article 12(c) of Regulation (EEC) No 857/84 who have suffered reparable injury falling within the terms of the abovementioned judgment owing to their not having, as a result of their participation in the system introduced by Regulation (EEC) No 1078/77, received a milk quota in good time and who satisfy the terms and criteria of that judgment.

(2) The institutions undertake, with regard to all producers covered by paragraph 1 and until the end of the period mentioned in paragraph 3, not to plead that entitlement to claim is barred by lapse of time in accordance with the provisions of Article 43 (now Article 46) of the Statute of the Court of Justice, provided that entitlement to compensation has not already been barred on grounds of time on the date of publication of this Communication in the Official Journal of the European Communities or was not already barred on the earlier date on which the producer applied to one of the institutions.

(3) In order to give full effect to [Mulder II, paragraph 9 above] the institutions will adopt practical arrangements for compensating the persons concerned. Payment of interest will be dealt with in these arrangements.

The institutions will specify to what authorities and within what period claims are to be made. Producers are assured that the possible recognition of their rights will be in no way affected if before the opening of this period they do not make an approach to the Community institutions or the national authorities-.

11 Following the Communication of 5 August 1992 the Council adopted Regulation (EEC) No 2187/93 of 22 July 1993 providing for an offer of compensation to certain producers of milk and milk products temporarily prevented from carrying on their trade (OJ 1993 L 196, p. 6). That regulation provided for an offer to producers who had obtained a definitive special reference quantity of flat-rate compensation for the damage sustained as a result of the application of the rules referred to in Mulder II, paragraph 9 above.

12 Article 10(2) of Regulation No 2187/93 states:

-The producer shall send his application [for compensation] to the competent authority. The producer-s application shall reach the competent authority, subject to rejection, by 30 September 1993 at the latest.

The limitation period pursuant to Article 43 of the Statute of the Court shall start to run afresh for all producers on whichever of the two dates referred to in the first subparagraph is appropriate if the application referred to in that subparagraph has not been made by that date, save where the limitation period has been interrupted by an application to the Court of Justice made in accordance with the same Article 43-.

13 The first paragraph of Article 14 of Regulation No 2187/93 provides:

-Within four months o[f] receipt of an application the competent authority referred to in Article 10 shall, in the name and on behalf of the Council and the Commission, make an offer of compensation to the producer, - .-

14 The third paragraph of Article 14 of Regulation No 2187/93 provides:

-Failure to accept the offer within two months of its receipt shall mean that it shall not be binding in the future on the Community institutions concerned.-

15 Article 43 [now Article 46] of the Statute of the Court of Justice (the Statute) provides:

-Proceedings against the Communities 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. The limitation period shall...

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