JUDGMENT OF 25.10.1972 — CASE 96/71 HAEGEMAN v COMMISSION

In Case 96/71

THE COURT, composed of: R. Lecourt, President, R. Monaco and P. Pescatore, Presidents of Chambers, A. M. Donner, A. Trabucchi (Rapporteur), J. Mertens de Wilmars and H. Kutscher, Judges, Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and Procedure

The facts and procedure may be summarized as follows:

The applicant is a trading company governed by Belgian law, an importer of wines and in particular of Wines from Greece. Until the entry into force of Regulation (EEC) No 816/70 of the Council of 28 April 1970 laying down additional provisions for the common organization of the market in wine (OJ, English Special Edition 1970 (I), p. 34) the applicant was able to import its wines into the Benelux territory without having to pay any customs duty or charge having equivalent effect. Further, the Benelux countries accepted Greek wines without any quantitative restriction whereas Germany, France and Italy subjected these wines both to customs duties and to quantitative restrictions varying in severity.

Article 9(3) of Regulation No 816/70 provides that ‘where the free-at-frontier offer price for wine, plus customs duties, is lower than the reference price for that wine, a countervailing charge equal to the difference between the reference price and the free-at-frontier offer price plus customs duties shall be levied on imports of that wine and of wines in the same category’. By subsequent regulations the Commission laid down detailed rules for the application of the countervailing charge in the wine sector (Regulations (EEC) No 1019/70, OJ, English Special Edition 1970 (I), p. 294; No 2222/70, JO L 241; No 2320/70, JO L 250, and No 2700/70, JO L 285). None of these regulations makes any distinction according to the origin of the wines.

Haegeman theretore paid the countervailing charges on its imports of Greek wines but expressed reservations.

On 15 July 1971 it sent the Directorate-General for Agriculture of the Commission a letter in which it referred to the damage which the application of the countervailing charge in question had caused it and stated that it had sent numerous complaints to the competent Belgian ministry asking that this charge be not applied in relation to the 30000 hl of Greek wine which was the subject-matter of contracts already in force when the charge was introduced it wrote as follows:

‘We cannot remain passive any longer; our advisers state that the Commission in Luxembourg would give a decision in our favour if we brought an action for compensation for the damage suffered by your hasty decisions which took no account of the existing commitments of traditional trade and could even lead to ruin. We should be grateful if you would give us your final views as soon as possible so that we may decide what measures to take ourselves; in the hope of meeting with your understanding in the case with which we are concerned, we remain etc.’

By letter dated 9 August 1971 signed by the Director-General, the Directorate-General for Agriculture of the Commission informed Haegeman that the exemption sought was not justified, since the implementation of a new organization of the market did not give rise to an exemption from the amounts levied on imports in respect of contracts concluded before its implementation. This letter continued as follows: ‘There do not appear to be economic reasons requiring special treatment in your case … nor is it possible to infer from the Athens Agreement that countervailing charges are not applicable to imports from that country’. By letter dated 1 September 1971 addressed to the Commission of the European Communities Haegeman replied that it considered that the exemption from the countervailing charge in respect of all Belgian importers should have extended to all imports of Greek wines. It therefore claimed the total refund, with interest, of all the countervailing charges wrongly exacted.

By letter dated 27 September the Director-General for Agriculture informed the applicant that since its letter did not introduce any new factor into the matter he could only confirm the terms of his letter of 9 August 1971.

Haegeman protested against this answer in a letter dated 28 September 1971 stressing the new factors which in its opinion its letter of 1 September contained in contrast to the previous correspondence and confirming in conclusion that if it did not obtain satisfaction before 15 October it would bring the matter before the Court of Justice.

By letter dated 15 October 1971 the Director-General for Agriculture replied confirming the viewpoint which it had already set out in its letter of 9 August 1971 and observing inter alia that the countervailing charge provided for in Article 9 of Regulation No 816/70 did not represent a protective measure but a normal factor in the common organization of the market in wine.

On 14 December 1971 Haegeman brought an application for annulment against the decision which it considered to be contained in that letter.

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 enquiry.

The parties made oral observations on 6 June 1972.

The Advocate-General delivered his opinion at the hearing on 28 June 1972.

II — Conclusions of the parties

In its originating application the applicant claims that the Court should:

‘1. declare the application admissible in respect of both the claim for annulment and for damages; 2. rule that Regulations (EEC) No 1019/70 and No 2320/70 of the Commission and all other regulations of like effect are inapplicable to imports of Greek wines into the territory of the Belgo-Luxembourg Economic Union; 3. annul in consequence the decision of 15 October 1971 refusing to exempt the applicant from the countervailing charge; and order the refund of the countervailing charges wrongly exacted; 4. rule that by reason of the acts and omissions of the defendant the applicant has suffered exceptional damage the amount of which will be determined by the Court; 5. in any event order the defendant to bear the costs.’

In its statement of defence the defendant contends that the Court should:

‘(1) dismiss the application for annulment as inadmissible; (2) dismiss the claim for damages as inadmissible or in any event as unfounded; (3) order the applicant to bear the costs.’

III — Submissions and arguments of the parties

The submissions and arguments of the parties may be summarized as follows:

1. Application for annulment

A — Admissibility

The defendant considers the application inadmissible for the following reasons:

a) The letter of 15 October 1971 does not amount to a decision for it is without any legal effect. In this letter the Director-General for Agriculture merely justifies the existence and the scope of a regulation which the Commission had adopted.

b) The application for annulment is in any case out of time for the letter of 15 October is only a confirmation of the letter of 27 September which in turn confirmed that of 9 August.

c) If the application had to be regarded as being in fact directed against Regulation No 2700/70 of the Commission of 30 December 1970 fixing the counter vailing charges to be levied in the wine sector it would likewise be inadmissible, for the second paragraph of Article 173 of the Treaty does not permit individuals to contest the form and substance of a regulation such as the abovementioned regulation. Moreover, since the latter was published on 31 December 1970, the applicant's action is out of time in so far as it is directed against the regulation.

In answer the applicant specifies first that its application is not for the amendment of a regulation but only requests that the countervailing charge be not applied to its imports of Greek wines. It maintains further that it was not until after a demand dated 28 September 1971 that the defendant gave a ruling for the first time on its application in so far as this related the permanent levying of the countervailing charge and no longer referred solely to contracts concluded previously. The Commission's answer contained in the letter of 15 October cannot therefore confirm the attitudes previously adopted in this respect. With this letter the Commission for the first time set up a decision refusing the request by which the applicant sought to obtain general exemption in respect of all imports of Greek wines into the territory of the Belgo-Luxembourg Economic Union. It was thus a decision addressed individually to the applicant, which the applicant has an interest in contesting. It is for the Commission by proper application of the rules in question to prevent them from being given a scope which makes them illegal because they conflict with the Athens Agreement.

As regards the objection based on Regulation No 2700/70, the applicant observes that by means of Article 184 of the EEC Treaty it proposes to show that this regulation does not apply to its case.

The defendant observes in its rejoinder in respect of one of the arguments relied on by the applicant which amounts to assuming that there is in Community law a directly applicable rule that countervailing charges must not be levied on wines imported from Greece into the Belgo-Luxembourg Economic Union, that it is for the applicant to confront the authorities who have ordered it to pay the charge in question with this rule and in the event of refusal to ask the national court to enforce it. In this light the applicant's request to the Commission must be regarded as a complaint. A refusal by the Commission in respect of such a measure is not capable of being the subject of an application for annulment.

From a second point 0f view, according to which the Commission was called upon by the previous request of the applicant to adopt a legal measure providing that the countervailing charge was not applicable to Greek wines imported into the Belgo-Luxembourg Economic Union, the defendant observes that the measure thus requested would necessarily have to have taken the form of a regulation relating to all imports of Greek wines into the Benelux countries. The refusal of the Commission to adopt such a measure is not capable of being contested by an individual, a fortiori because even if the Commission had wished, it could not have complied with the applicant's request as it did not have the legal basis to do so.

B — Substance of the case

First submission

The applicant observes that the Agreement of Association between the Community and Greece establishes a customs union which implies the abolition of any obstacles to the free movement of goods subject only (in Article 43) to the possibility in certain circumstances of a countervailing charge. Referring to the fact that the amount and details of this charge can be fixed only by the Council of Association, the applicant states that the various regulations by which the Commission fixed the countervailing charges to be levied in the wine sector could be adopted only by the Council of Association since the defendant did not have the power to decide the matter.

By giving these regulations a scope which they could not have without being illegal and by basing the individual decision contested in the present case on such regulations, the defendant has exceeded its powers.

The defendant objects that the provision according to which the countervailing charges in the wine sector must be levied on wines imported from all third countries, including Greece, is contained in basic Regulation No 816/70 (first subparagraph of Article 9(3)). The applicant ought therefore to direct its criticism against that provision since Regulation No 2700/70 of the Commission merely fixes countervailing charges and does not itself imply that these charges are applicable to Greece. The area of application of the charges fixed by the Commission follows directly from Regulation No 816/70 of the Council. Accordingly, if Article 9 of Regulation No 816/70 had to be declared illegal in respect of Greece, the terms of the regulation of the Commission would in no way be affected. The defendant concludes from this that the submission put forward by the applicant is irrelevant.

Moreover this submission is unfounded. In this respect the Commission observes that the words ‘countervailing charge’ contained in Article 43 of the agreement with Greece is an economic concept having no precise legal meaning. Article 43 of the agreement, like Article 46 of the EEC Treaty, was devised to make available to whichever party to the agreement was adversely affected by the measures for the organization of the market applied by the other party an appropriate means of defence in the form of a countervailing charge, that is to say, an anti-dumping or compensatory duty according to the GATT terminology. In the present case, since the Community has established a charge constituting a common mechanism for stabilizing imports to meet internal requirements, the situation contemplated by Article 43 of the Athens Agreement does not arise. Even assuming that the situation contemplated by that provision existed, there is nothing to show that this provision is exhaustive in nature so as to rule out all other solutions.

In reply the applicant says that although the conditions for the application of Article 43 were not satisfied in the present case, the Community could not by using its general powers establish a countervailing charge increasing the preferential system guaranteed by paragraph (2) of Protocol No 14 annexed to the Athens Agreement which, in reference to Greek wines in particular, provides:

‘The Kingdom of Belgium, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands shall apply to imports from Greece the treatment accorded to imports from Germany, France and Italy.’

The applicant states that it in no way claims that Article 43 of the said agreement applies to the present case and that it has put forward the submission based on this provision only in case the Court should consider it applicable. Contrary to the defendant's statement, the applicant considers that the procedure referred to by this provision is mandatory and not indicative.

On this latter point the defendant states that it has never sought to maintain that the procedure for fixing charges provided for in Article 43 is purely indicative, and had simply stated that this provision did not prohibit the parties to the agreement from devising and applying other appropriate measures.

Second submission

The applicant maintains that the defendant has infringed paragraph (2) of Protocol No 14 by levying a countervailing charge on imports into the Belgo-Luxembourg Economic Union while such charges were not levied on imports from other Member States.

In answer the defendant says that the entry system for the importation of Greek wines into the Benelux countries free from customs duties and without quantitative restrictions was scrupulously safeguarded by the Community after Regulation No 816/70 entered into force. The countervailing charges in question are not to be equated with customs duties but are ‘levies’. This interpretation is confirmed by protocol No 12 annexed to the Athens Agreement which expressly prohibits the levies envisaged within the framework of the common agricultural policy from being regarded as charges equivalent to customs duties within the meaning of Articles 12 and 37 of the Association Agreement.

The ‘treatment’ referred to in paragraph (2) of Protocol No 14 thus only covers the questions which are dealt with there, that is to say, solely questions relating to the customs Sphere.

This interpretation is moreover accepted by Greece which has introduced a countervailing charge which can be levied at the same time as the customs duties in force on the importation of certain agricultural products from the Community and from third countries.

It is true that, levied as it is on imports of Greek wines into the Benelux countries, the countervailing charge does not fulfil its proper function, since these wines may come in at a price lower than the reference prices. However the system must be appraised with regard to the whole of the Community.

The applicant in reply says that although it is true that the advantage that Greek wine has over wines from third countries has been preserved, nevertheless the preferential competitive relationship established by Protocol No 14 has been unilaterally broken in favour of wines imported from France, Italy and Germany.

It advocates moderate interpretation of the meaning of the word ‘treatment’ in paragraph (2) of Protocol No 14: the contracting parties have established by means of this provision a system of importation of Greek wine into the territory of the Community and this constitutes only one factor in a common organization of the market. Since the system of importation of Greek wine into the Belgo-Luxembourg Economic Union has always been characterized by the absence of any customs duty, the aggravation of this system by the unilateral introduction of a countervailing charge constitutes an infringement of the spirit and the letter of Protocol No 14.

There is no question of claiming that Greek wine should be treated simply as Community wine in the context of a common organization of the market. Only the import treatment is in question.

Even supposing that the treatment referred to by Protocol No 14 merely amounts to the absence of customs duties and quantitative restrictions, the applicant observes that it appears from Protocol No 12 that the charge in question is indeed of its nature a charge having an effect equivalent to customs duties which explains why an express provision was necessary in that Protocol to rule out this identification in the special relationship between the Community and Greece. Nevertheless the condition for the application of Protocol No. 12 are not fulfilled at present since (the applicant states) only levies within the framework of the common agricultural policy are envisaged whereas the European Economic Community is only at the preliminary stage of the common organization of the market.

If this protocol had nevertheless to be regarded as applicable, the applicant observes that (as the defendant acknowledges in the present case) since the countervailing charge applied to Greek wines does not fulfil its proper function, it is not in the nature of a levy and cannot therefore come within the exceptions laid down in respect of the levies. In the context of the present application the effect of the countervailing charge must be appraised only in respect of imports of Greek wines into the territory of the Belgo-Luxembourg Economic Union.

The defendant objects that the treatment referred to in paragraph (2) of Protocol No 14 must be understood in relation to the position within the Community in 1962. It referred only to the obstacles which existed at that time in trade between the Member States, that is to say, to quantitative restrictions, customs duties and other measures having an equivalent effect but not to levies.

This position came to an end with the establishment of the common organization of the market in wine. The new system has been applied normally, also in respect of Greece, save in so far as it is incompatible with the Athens Agreement and in particular with Protocol No 14, that is to say, in so far as it involves the application of the Common Customs Tariff.

Arguments common to the two submissions

The defendant observes that if its arguments were not to be regarded as convincing it would be necessary to consider the question whether Regulation No 816/70 which is subsequent to the Council Decision of 25 September 1961 on the conclusion of the Agreement establishing an Association between the European Economic Community and Greece takes precedence over this agreement or whether the agreement has supremacy over internal Community law.

The applicant considers that the solution to this problem should be sought in the general principles of international law. On this basis an international treaty takes precedence over a national legislative provision and the same applies to the Community legal system. Accordingly, the problem which arises in the present case is whether the Agreement of Association in question contains self-executing provisions creating a personal right for the nationals of Member States. According to the applicant this is so with regard to Articles 12 and 37 of the Agreement of Association which are only a re-enactment of the standstill clause contained in Article 12 of the EEC Treaty. The same is true with regard to the provisions of Article 43 of the agreement and of Protocol No 14 which is annexed thereto. The applicant has a personal right to claim observance of the rules for implementation which are laid down by Article 43 in respect of the introduction of a countervailing charge. Protocol No 14 which is an •integral part of the Agreement of Association (Article 74) and which is of a selfexecuting nature is still applicable since the conditions laid down in paragraph (6) thereof are not fulfilled.

The defendant, whilst avoiding the adoption of a clear viewpoint with regard to the important and difficult problem of the relationship between Community law and international law, considers that the applicant's argument is presented in too peremptory and hasty a manner. It stresses that the reasons which have led the Court to confirm the precedence of Community law over provisions of national law which, although subsequent in time, are incompatible with it, cannot be simply transposed in the present case for they result from the particular nature of the establishment of the Community.

as tor the self-executing nature of the provisions of the Athens Agreement relied on by the applicant, the defendant refers to the considerations set out in relation to the admissibility of the application. The fact that the applicant may possibly have a personal right to have applied to its imports of Greek wines by the Kingdom of Belgium the same system as is applied to Germany, France and Italy is irrelevant in the present discussion.

2. The claim for damages

A — Admissibility

The applicant maintains that apart from the annulment of the contested measure and the refund of the duties wrongfully exacted, it is entitled to claim damages for the injury resulting from the quasi-tortious wrongful act committed by the Commission.

The defendant maintains that the claim for damages is misdirected for if there has been damage it has been caused not by the Commission but by the Council as appears from the observations made above.

In its reply the applicant states that a distinction must be made between the two limbs of its claim for damages:

1) The application based on the noncontractual liability of the Commission by reason of the unlawful nature of the contested measure: from this point of view, the claim for damages is directed against the right person for the Commission is the author of this illegal measure and the author of the unlawful levy and the regulations determining the amount and particulars thereof.

2) The claim for damages is admissible whatever the outcome of the request for annulment, for the applicant claims not only a right to reimbursement of the charges levied but also that it has suffered damages justifying the award of compensation independently of the refund of these charges.

The defendant says in answer that the charges in question are not exacted by it but by the national customs authorities.

In so far as the claim for damages is based on a wrongful act as distinct from the alleged decision which is the subject of the application for annulment, this claim must be dismissed since it should have been contained in a separate application.

B — The substance of the case

(a) First submission

The applicant claims that its legitimate expectations were disappointed because the defendant did not comply with the Resolution of the Council of 6 February 1970 on the common organization of the market in wine, a resolution in which the intention had been shown to lay down in the basic regulation the system applicable to wines from associated countries. The applicant had therefore to bear the expense of the countervailing charge in respect of its existing contracts without being able to include it in the price already agreed.

The defendant makes the preliminary observation that if the application for annulment were dismissed this would mean that the contested measure was not unlawful and would suffice to remove all foundation for the claim for damages.

As regards the first submission, the defendant maintains that it has done nothing wrong for it had initiated in due time procedure which was to lead to the determination of a Community system for Greek wines. It complied with the request which the Council had addressed to it in its Resolution of 6 February 1970 by submitting to the Council, as soon as was possible, that is to say, after Regulation No 816/70 entered into force, or more precisely during the second half of 1970, proposals for opening the necessary negotiations. These proposals had been acted upon as regards Algeria, Morocco, Tunisia and Turkey, whereas the question of Greece has not yet been settled.

The applicant replies that while it could have expected that the preferential system resulting from the Agreement of Association would be confirmed it was bound to conclude that the Commission had given notice that the countervailing charge would be applied from one day to the next even to existing contracts.

In rejoinder the defendant says that the introduction of the charges in question was provided for under the heading of levies in the proposal of the Commission to the Council published on 21 August 1967 (JO 201, p. 13) and that the Council established the principle thereof in its resolution of 10 February 1970 (JO C 19, p. 1). Regulation No 816/70 was published on 5 May 1970 and the first countervailing charges in the wine sector were fixed only by Regulation No 2222/70 of the Commission of 28 October 1970. The applicant did not therefore become aware of its obligations overnight.

(b) Second submission

The applicant complains that the Commission upset the equilibrium between the system of countries benefiting from a preferential system by abolishing the countervailing charge on imports of wines from Turkey, Algeria, Morocco and Tunisia whereas in respect of Greece by Decision of 9 November 1970 it permitted Germany, France and Italy to take protective measures in respect of intra-Community trade.

The defendant says in answer that it has not adopted any regulation the object of which is to suspend the application of the countervailing charge in respect of imports of wines from Turkey, Algeria, Morocco and Tunisia, but that by virtue of the power which it derives from Article 37 of Regulation No 816/70, it authorized Member States to maintain provisionally the preferential systems which they were applying before the implementation of Regulation No 816/70 in order to prevent these imports from being completely subject to the ‘third country’ system since the Community was willing to provide in this respect for a preferential system to be determined. Subsequently (more precisely, as from 1 November 1971 in respect of wines from Algeria and from 1 January 1972 in respect of wines from Morocco, Tunisia and Turkey) these wines were made subject to the uniform Community system. Before the establishment of this uniform system the Commission did not authorize in respect of wines from these States any measures based on Article 115 of the EEC Treaty; this was due to the fact that under the transitional system these wines could only circulate in the territory of the Member State into which they had been imported.

In reply the applicant says that the Commission was under a duty to maintain unimpaired the advantages which imports of Greek wines enjoy in relation to imports from other countries. The applicant has suffered serious damage resulting from the obstacles placed in the way of its exports to Germany, France and Italy. Moreover, within the territory of the Belgo-Luxembourg Economic Union it has suffered damage arising from the competition from wines imported from other previleged countries not subject to the levying of a countervailing charge.

The defendant objects that the case of Greece was different from that of other associated countries benefiting from a transitional system after the entry into force of Regulation No 816/70. The grant of advantages to imports of North African and Turkish wines legally depended only on the Community. On the other hand while the determination of a system of imports satisfactory to Greece and the Community should result from bilateral negotiations the opening and outcome of which in June/July 1970 appeared very uncertain for well-known political reasons, the Commission was entitled to adopt transitional measures only until 31 August 1971 at the latest (Article 37 of Regulation No 816/70).

The assessment of the damage

Reserving the right to supply further particulars or increase its claim the applicant assesses the material and non-material damage which it has suffered as a result of loss of profit, unforeseen outlay and losses on existing contracts at 10000 u.a.

Grounds of judgment

1. The Haegeman undertaking is asking the Court to declare Regulation No 1019/70 (OJ, English Special Edition 1970(I), p. 294) and Regulation No 2320/70 (JO L 250) of the Commission and all other regulations of similar effect inapplicable to imports of Greek wine into the territory of the Belgo-Luxembourg Economic Union and thereby to annul the decision of 15 October 1971 refusing to exempt the applicant from the countervailing charge and to order the refund of the countervailing charges wrongly levied.

2. By letters dated 9 August, 27 September and 15 October 1971 the Commission refused to accede to the applicant's request for a refund of the levies which it claimed to have paid wrongly on its imports of Greek wine.

3. The application essentially seeks the annulment of this refusal and thereby the refund of the contested charges.

4. According to the applicant, the application of the countervailing charge introduced by Regulation No 816/70 of the Council (OJ English Special Edition 1970(I), p. 234) to Greek wines imported into the Belgo-Luxembourg Economic Union is incompatible with the Agreement of Association between the Community and Greece of 9 July 1961.

5. Under Article 6 of the Council Decision of 21 April 1970 on the replacement of financial contributions from Member States by the Communities' own resources (OJ, English Special Edition 1970(I), p. 224), adopted pursuant to Article 201 of the EEC Treaty, the Community's own resources shall be collected by Member States on behalf of the Community ‘in accordance with national provisions imposed by law, regulation or administrative action’ and made available to the Commission.

6. Under Articles 1, 2 and 13 of Regulation No 2/71 of the Council of 2 January 1971 implementing the Decision of 21 April 1970 (OJ, English Special Edition 1971 (I), p. 3) the establishment of these resources and the control of their collection is primarily the responsibility of the competent departments or agencies of the Member States.

7. Disputes concerning the levying on individuals of the charges and levies referred to by this provision must be resolved, applying Community law, by the national authorities and following the practices laid down by the law of the Member States.

8. Issues, therefore, which are raised during such a procedure as to the interpretation and validity of regulations establishing the Communities' own resources must be brought before the national courts which have at their disposal the procedure under Article 177 of the Treaty in order to ensure the uniform application of Community law.

9. The countervailing charge in question is part of the own resources referred to in Article 6 of the Council Decision of 21 April 1970.

10. It is therefore for the competent national authorities to rule on claims for the refund of that charge.

11. The applicant's claim for a refund should therefore have been made to those authorities.

12. In these circumstances the Commission ’s refusal of the applicant's request is not an act capable of being the subject of an application for annulment within the meaning of Article 173 of the Treaty.

13. The application for annulment is therefore inadmissible.

14. The applicant maintains further that by reason of the defendant's behaviour it has suffered exceptional damage as a result of loss of profit, unforeseen financial outlay and losses on existing contracts.

15. The question of the possible liability of the Community is in the first place linked with that of the legality of the levying of the charge in question.

16. It has just been found that, in the context of the relationship between individuals and the taxation authority which has levied the charge in dispute, the latter question comes under the jurisdiction of the national courts.

17. Accordingly, at the present stage the claim for compensation for possible damage must be dismissed.

Costs

18. Under Article 69(2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Article 173 and the second paragraph of Article 215; Having regard to Article 6 of the Council Decision of 21 April 1970 on the replacement of financial contributions from Member States by the Communities' own resources; Having regard to Regulation No 816/70 of the Council; Having regard to Regulation (EEC) Nos 1019/70 and 2320/70 of the Commission; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT hereby:

1 Dismisses the application for annulment and the claim for damages;

2 Orders the applicant to bear the costs.