Court of Justice 19-05-1982 ECLI:EU:C:1982:184

I — Facts, procedure and conclusions of the parties

1. In its interlocutory judgment of 4 October 1979 ([1979] ECR 3091) the Court ordered the European Economic Community to pay the applicants in the present cases:

“The amounts equivalent to the production refunds on maize gritz used by the brewing industry which each of those undertakings would have been entitled to receive if, during the period from 1 August 1975 to 19 October 1977, the use of maize for the production of gritz had conferred an entitlement to the same refunds as the use of maize for the manufacture of starch; and exception shall be made for the quantities of gritz sold at prices increased by amounts equivalent to the unpaid refunds under contracts guaranteeing the buyer the benefit of any reintroduction of the refunds.”

The Court also ordered that: “Interest at 6% shall be paid on the abovementioned amounts as from the date of this judgment.” The parties were to “inform the Court within twelve months from the delivery of this judgment of the amount of compensation arrived at by agreement”. In the absence of agreement the parties were to “transmit to the Court within the same period a statement of their views, with supporting figures”. Costs were reserved.

2. In their main application the applicants claimed damages calculated on the basis of the value of the unit of account in French francs at the date when each monthly payment of refunds became due in respect of production sold to breweries during the previous month, provided that interest at the statutory French rate was charged from the same dates.

In the alternative, the applicants asked the Court, in the event of interest to compensate for delay in payment not being granted for the period prior to the judgment awarding damages, to calculate the main damages on the basis ot the current value of the unit of account subject to variations in that value on the day of the judgment of the Court.

3. After various extensions of the period of twelve months fixed by the Court in its aforesaid judgment the applicants reached agreement with the Commission and Council regarding the quantities of maize in respect of which damages were payable and the amount of the damages calculated in units of account.

However, the Community authorities offered to pay the damages with interest at the rate of 6% from the date of the aforesaid judgment until the date of payment, on the basis of the value of the French franc in relation to the unit of account on the day of production, namely FF 5. 633 per unit of account for the period from 1 August 1975 to 31 July 1977 and FF 5.7806 per unit of account for the period from 1 August 1977 to 18 October 1977.

Thus the applicants were paid respectively the following sums:

• FF 2 181 875,65 (in Case 64/76)

• FF 1 510 007,80 (in Case 113/76)

• FF 2 852 979,65 (in Case 167/78)

• FF 2 183 184,17 (in Case 239/78)

• FF 5 502 544,10 (in Case 27/79)

• FF 4 470 856,10 (in Case 28/79)

• FF 544 986,19 (in Case 45/79

The applicants maintain that their damages must be assessed at the date of the judgment which established liability and from which the interest for delay in payment began to run; they therefore submit that that is the date to be taken into account in converting into French francs the damages calculated in units of account.

They therefore ask the Court to hold that on the basis of a value of the unit of account (subsequently replaced by the European currency unit) of FF 6.73056 at the date of the judgment, namely 4 October 1979, the damages ultimately due to each of the applicants are as follows:

• FF 2 603 760,80 (in Case 64/76)

• FF 1 792 890,60 (in Case 113/76)

• FF 3 400 881,70 (in Case 167/78)

• FF 2 603 786,80 (in Case 239/78)

• FF 6 567 331,20 (in Case 27/79)

• FF 5 333 358,60 (in Case 28/79)

• FF 651 178,30 (in Case 45/79)

with interest at 6^o/o from 4 October 1979, subject to deduction of interim payments. They also seek an order for costs against the Council.

4. The Council urges the Court to dismiss the applicant's claims in so far as they exceed the sums already paid by the Community.

5. The pleadings setting out the claims of the parties in the present cases were lodged at the Court Registry on 3 March 1981.

6. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

II — Submissions and arguments of the parties

1. The applicants observe in their pleadings that by holding in the judgment of 4 October 1979 that in the light of the principles common to the laws of the Member States and “taking into account the criteria for the assessment of damages laid down by the Court” the obligation to pay interest could arise only on the date of that judgment inasmuch as it established liability for the damage, the Court implicitly upheld the validity of the applicants' claim in the alternative (cf. 1.2. above).

The applicants state that in the present case it is not a question of the payment of refunds but a question of compensation for the damage caused by their unlawful abolition.

Assessment of that damage involves settling two distina questions, namely the items of damage and the date at which they are to be assessed.

The judgment of 4 October 1979 contained no express ruling on the first issue. The Court recognized that it was the amount of refunds wrongfully abolished which must be the basis for assessing the damage suffered. Nevertheless that is only a general basis of calculation and is subject to any correction made necessary by the application of the rules of law governing non-contractual liability. There could therefore not be any absolute correspondence between the amount of refunds which would have been paid by monthly instalments during the whole of the period in question if the Community rules in force had respected the superior rule of law prohibiting discrimination and the amount of damages awarded several years later and paid on a single occasion to compensate for the loss of those refunds.

The judgment of 4 October 1979 confirms that analysis, having recognized that in so far as the abolition of refunds was passed on in price increases the damage cannot be assessed in terms of unpaid refunds since the price increases replace the refunds in such cases and so compensate the producer.

The judgment in question lays down the criteria for compensating the applicants but reserves the assessment of damages, including the question of the date to be taken into account in converting the damages into French francs, either to agreement between the parties or to the Court in the absence of such agreement.

The applicants nevertheless consider it possible to derive guidance from that judgment in two respects.

First, the criterion for assessing the damage is the amount of refunds to which the maize producers would have been entitled if the Community rules in force during the period in question had stipulated, in favour of gritz, a right to refunds identical to that which applied during the same period in favour of starch.

The Community rules applicable to starch during the period in question fixed the refunds in units of account.

The amount of production refunds which the applicants would have been entitled to receive and of which they were unlawfully deprived must therefore be determined in units of account.

Therefore, in claiming that the damage must be measured in terms of the refunds which were paid in French francs to the maize producers during the period in question, the Community authorities disregard the operative part of the judgment of 4 October 1979.

The second point which the applicants think it is possible to infer from the judgment referred to is that the question of converting the damages calculated in units of account into a national currency is only a question of payment properly so-called.

The unit of account, since replaced by the European currency unit, is used onlv for accounting purposes and not for payment, so that the conversion to determine the amount to be paid in national currency must normali} be performed at the date of payment on the basis of the value of the unit of account at that date.

That reasoning would be applicable if the applicants were able to claim payment of the refunds properly so-called. However, in the present case it is a question of a payment in compensation which must obev us own rules pursuant to the second paragraph oi Article 213 of the Treatv. which refers to principles common to the laws ci the Member States

In the law of non-contractual liahiliiv it is tor the Court to determine the amount of the compensation, and the principles common to the laws of the Member States require the date of the judgment establishing the existence of the damage and the duty to pay compensation for it to be taken as the relevant date for assessing damages and for starting interest thereon to run.

Those principles lead to the adoption of the same date both for assessing the amount of compensation and for starting interest thereon to run.

In the present cases, since the Court decided to make interest run from the date of its judgment establishing the obligation to make good the damage, and having regard to the criteria for assessing the damage laid down bv the Court, it is apparent that the judgment of 4 October 1979 is based on the same legal principles as those which gave rise to the important series of decisions of the French Cour de Cassation according to which the tortious basis of the debt permits interest to be awarded onlv from the date on which the amount of compensation is fixed.

The problem ot the conversion into national currencv of damages expressed in units of account is verv similar to thai which arises when the damage has been suffered in a toreign currencv used as the currency of account.

Since am pavmen: made in I ranee. Ut whatsoever reason, must be made in French currencv tne problem ot converting into French francs a debi expressed in a lorcign currencv musi lu settled according to the same principles as those applicable in relation to the assessment, properly so-called, of the amount of damages. Consequently the French case-law requires the courts to apply the exchange rate prevailing at the date of judgment in order to convert into French francs the amount to be paid as compensation for damage assessed in a foreign currency.

The applicants conclude that they are entitled to ask the Court to order the European Economic Community to pay the damages, the amount of which in units of account was fixed by agreement between the parties, on the basis of the value of the unit of account in French currency at the date of judgment, namely 4 October 1979. That conclusion may be derived both from the general principles common to the laws of the Member States, to which the Court has already referred when it stated that it was taking into account the criteria for the assessment of damages in order to make interest payable from the date of its judgment, which implies that the amount of the debt to be paid in French francs must be determined at the same date, and from the even more general principle which requires that the date when the amount of damages is fixed should coincide with the date from which interest becomes payable.

2. In reply the Council states that in its judgment of 4 October 1979 the Court gave an implied ruling on the relevant date for the conversion into French francs of the damages fixed in units of account. In ruling on the claim for interest at the statutory rate as from the date when the monthly payment of refunds fell due and on the claim in the alternative for the application of the rate for the “green” franc prevailing at the date of judgment, the Court expressly restricted itself to awarding interest at the rate of 6% as from the date of the interlocutori, judgment.

The Court considered that it was necessary to take the latter date in view of the criteria for assessing the damage which it had laid down. The Council refers to paragraph 18 of the judgment, which reads as follows:

“It follows that the loss for which the applicants must be compensated has to be calculated on the basis of its being equivalent to the refunds which would have been paid to them if, during the period from 1 August 1975 to 19 October 1977, the use of maize for the manufacture of gritz used by the brewing industry had conferred a right to the same refunds as the use of maize for the manufacture of starch.”

The Council states in that respect that the refunds paid at the material time for the manufacture of starch were calculated, as regards France, according to the rate for the “green” franc actually applicable between 1 August 1975 and 19 October 1977. According to the very words of the judgment of the Court, the basis for the calculation of the applicants' damages is the amount in units of account applicable at the time, converted into French francs at the rate then in force. The Council contends that it is hard to reconcile the applicants' reasoning with the judgment of the Court.

The judgment intended to put the applicants in the financial position in which they would have been if the refund had been paid at the proper time.

In all these cases and in cases of the same kind the Court considered that, having regard to the criteria for assessment which it had adopted, it sufficed to award interest at the rate of 6% from 4 October 1979.

The Council stresses that the use of the exchange rate for the green currencies at the date of judgment would mean for the applicants whose national currency is the German mark a loss of 3.3% since the German mark was revalued in relation to that unit, whereas for the applicants whose national currency is the French franc there would be a profit of 19% since the French franc was devalued in relation to that unit.

The Council concludes that to take the date of judgment as the relevant date for the conversion into national currency cannot constitute a fair way of compensating all the applicants in the quellmehl and gritz cases. The Council takes the view that, because of the need to find an identical solution for all cases, there can be no question of adopting the date of actual production for the applicants whose national currency is the German mark and the date of judgment for those whose currency is the French franc.

The Council considers that the Court has already found a fair and identical solution for all those concerned, inasmuch as to compensate for the delay in the payment of the disputed refunds it has awarded interest at the rate of 6% from 4 October 1979, although it was faced with very varied claims in that respect. It would be unfair to give certain applicants an additional benefit by reason of the fluctuation in national currency when there could be no such benefit to the other applicants.

The Council considers that it is not possible to accept the applicants' argument to the effect that the damage is expressed in units of account, whereas the conversion is only ancillary since the unit of account is only an arithmetical device and not legal tender. The Court recognized in paragraph 13 of its judgment of 9 March 1977 in Joined Cases 41, 43 and 44/73 (Société Anonyme Générale Suaière and Others v Commission [1977] ECR 445) that the upper limit of fines in connection with competition was a percentage of the turnover of the firms in question and that amount could be expressed only in national currency. In the Council's opinion the same reasoning mutatis mutandis must apply in an action for damages and the actual damage to the trader can be expressed only in a national currency.

On the question whether a judgment awarding compensation implies, because it is constitutive of the obligation in question, that the date of the judgment must be taken as the relevant date for any conversion, the Council observes that without a judgment there would be no legal obligation on the institutions to pay compensation. However, that does not mean that the judgment is also the source of recognition of the damage but solely that the judgment recognizes the obligation to compensate for damage which already exists. In that respect the Council observes that the Court has stated that individuals may be required to accept within reasonable limits certain harmful effects as a result of a Community legislative measure even if that measure has been declared null and void (paragraph 6 of the judgment of 25 May 1978 in Joined Cases 83 and 94/76, 4, 15 and 40/77 (Bayerische HNL Vermehrungsbetriebe and Others v Council and Commission [1978] ECR 1209). It follows in the Council's view that a judgment given by the Court on the basis of Article 215 is the source of liability but not the source of the recognition that the damage was suffered. The latter concept is a matter of fact, not of jurisprudence.

It follows from all those considerations that the actual damage to those concerned occurred in the national currency at the rate prevailing at the material time, that is to say, in the present instances, during actual production between 1 August 1975 and 18 October 1977. Finally, the Council points out that the national case-law cited by the applicants was developed in relation to cases in which the assessment of damages was within the discretion of the Court, for example personal injury cases. It is understandable in such cases that interest may generally be granted only from the date of the judgment establishing the existence of the damage and assessing the extent thereof, since interest may very well be regarded as already being contained in the damages fixed by the Court so that there is no ground for awarding interest for the period prior to the judgment. Such principles do not however apply to the present case, which, on the contrary, is concerned with damage the assessment of which is not completely within the discretion of the Court. The damage in respect of which the Court established an obligation to pay compensation must be calculated on the basis of very precise criteria, namely the rate of the refund and the quantity of maize in question.

In reply the applicants say that they have been the victims of two successive unlawful acts committed by the Council: the first unlawful act identified by the judgment of the Court of 19 October 1977 in Moulins et Huileries de Pont-à-Mousson v Office National Interprofessionnel des Céréales ([1977] ECR 1795), consisted in the abolition as from 1 August 1975 of the right to refunds previously granted to the maize industry, in circumstances incompatible with the principle of equality; the second unlawful act consisted in the reintroduction of those refunds only from the date of the aforesaid judgment of the Court and not from the date of their abolition.

There is no doubt, in the applicants' view, that if only the first unlawful act had been committed they would have been able to receive the arrears of refunds at the exchange rate for the French franc, in relation to the unit of account, prevailing at the date of payment because the problem of conversion could have arisen only as a simple detail concerning the method of payment. It would be inequitable in those circumstances to reduce the applicants' right to compensation on the sole ground that they were victims of a second unlawful act.

The applicants state that they asked for interest on the damages both in their main claim and in the claim in the alternative. They even asked in both claims that the date for determining their entitlement in French francs and the date of the commencement of interest thereon should coincide. The only difference between the main claim and that in the alternative is that in the former the Court was invited to adopt for those purposes the date when payment of the refunds ought to have been made, had they not been wrongfully abolished, whereas in the latter the Court was invited to adopt the date of judgment.

In those circumstances the applicants consider that the most reasonable interpretation of the judgment of 4 October 1979 is that, since the Court decided that interest should be payable from the date of judgment, by necessary implication it opted in favour of the applicants' claim in the alternative and consequently dismissed the main claim.

The Council misinterprets paragraph 18 of the judgment of 4 October 1979 in claiming that, according to that paragraph, the applicants must receive in French francs exactly the same amount as they would have received if the refunds had not been abolished and had been paid regularly each month. As well as establishing the obligation to make good the damage, the judgment held that the damage must be assessed as equivalent to the unpaid refunds, but the concept of equivalences means something quite different from a purely nominal identity, especially in a period of monetary instability. The Court held that the applicants must receive the equivalent of what they had been deprived of but such equivalence must be assessed at the date of the judgment which established the right to compensation.

That solution is all the more compelling since the operative part of the judgment of 4 October 1979 throws light on paragraph 18 inasmuch as it does not refer to the sums in French francs which would have been paid to the applicants if the right to refunds had been maintained. On the contran, it orders the European Economic Community to pay to the applicants the amounts equivalent to the production refunds on maize gritz used by the brewing industry which each of those undertakings would have been entitled to receive. That wording necessarily presupposes that the right which the applicants were deprived of is calculated by reference to the Community rules which lay down the amount in units of account. The Community must pay the equivalent of that debt in units of account in order to make good the damage, assessed at the date of judgment, which constitutes the origin of the obligation to pay compensation.

In the view of the applicants, the interest awarded at the rate of 6% from 4 October 1979 cannot constitute a fair and identical solution for all concerned, save in so far as it is intended to compensate for the delay in the payment of the damages after the date when the right to damages was established by a judgment of the Court. On the other hand, that interest has nothing to do with the question of compensation for the delay in payment of the disputed refunds. By definition interest for delay can compensate only for delay which is subsequent to the date when the interest began to run.

The applicants have difficulty in seeing why it is not possible to regard the judgment of 4 October 1979 as defining the damage recoverable. It is the Court alone which in each particular case must decide the reasonable limits beyond which the party must bear the damage caused by an unlawful Community measure and it is therefore the Court which must determine the extent to which the damage is recoverable. In consequence the applicants consider that, so long as there is no judgment by the Court, not only is the right to compensation itself not established but the extent to which the damage is recoverable has not been determined.

It is therefore a case in which the assessment of the damage is wholly within the discretion of the Court, even if by its judgment of 4 October 1979 the Court considered that it did not have to proceed immediately to a direct assessment and preferred to adopt precise criteria for calculating the damage. Since it is the Court itself which adopted those criteria in its judgment of 4 October 1979 it must be inferred, in the applicants' view, that it is that judgment which created the right to compensation and it is with reference to the date of that judgment that the amount of compensation payable for the damage held to be recoverable must be determined.

III — Oral procedure

At the sitting on 10 March 1982 oral argument was presented by E. Jaudel, Advocate at the Cour d'Appel. Paris, on behalf of the applicants, and by D. Vignes, assisted by A. Bräutigam, acting as Agents, on behalf of the Council.

The Advocate General delivered his opinion at the sitting on 27 April 1982.

Costs

14 Under Article 69 (2) of the Rules of Procedure the unsuccessful pam is to be ordered to pay the costs. Since the defendant has essentially failed in its submissions both in the proceedings leading to the interlocutory judgment and on the question of the date of conversion, it must be ordered to pay the costs.