JUDGMENT OF 27. 1. 1982 — JOINED CASES 256, 257, 265 AND 267/80 AND 5/81 BIRRA TTÜHRER v COUNCIL AND COMMISSION

In Joined Cases 256, 257, 265 and 267/80 and 5/81

THE COURT composed of: J. Menens de Wilmars, President, G. Bosco, A. Touffait and O. Due (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, T. Koopmans, U. Everling, A. Chloros and F. Grévisse, Judges, Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

The facts, the procedure and the arguments put forward by the parties during the written procedure solely on the issue of the admissibilitv of the actions may be summarized as follows:

I — Facts and written procedure

By Regulations Nos 665/75 and 668/75 of 4 March 1975 (Official Journal 1975, L 72, pp. 14 and 18), the Council abolished the refunds granted to producers of maize gritz and broken rice used in the brewing industry with effect from 1 August 1975 and 1 September 1975 respectively.

By its judgment of 19 October 1977 in Joined Cases 124/76 and 20/77, SA Moulins et Huileries de Pont-à-Mousson v Office National Interprofessionnel des Céréales [1977] ECR 1795, the Court held that by abolishing the refund for maize gritz whilst maintaining the refund for the competing product, namely maize starch, the Council had infringed the principle of equal treatment to the detriment of the producers of maize gritz.

Following that judgment, the refunds in question, both for maize gritz and for broken rice, were restored by Council Regulations (EEC) Nos 1125, 1126 and 1127/78 of 22 May 1978 (Official Journal 1978, L 142) with effect from the date of the abovementioned judgment of the Court, that is to say from 19 October 1977. Thus, no refunds were granted in respect of the period from 1 August and 1 September 1975, the dates on which they were abolished, to 19 October 1977, the date on which they were restored.

A number of producers of gritz brought actions before the Court in order to establish the non-contractual liability of the Community. By its judgment of 4 October 1979 in Joined Cases 241, 242 and 245 to 250/78 DGV, Deutsche Getreideverwertung und Rheinische Kraftfutterwerke GmbH and Others v Council and Commission of the European Communities, [1979] ECR 3017, the Court held that the Community had incurred liability and ordered it to pay to the parties concerned amounts equivalent to the production refunds which they would have been entitled to receive in respect of the period from 1 August 1975 to 19 October 1977.

During that period the applicants produced maize gritz or broken rice which were used in the brewing industry. More precise details of the individual cases are as follows:

a) Between 1 August 1975 and 18 October 1977 the first applicant, Birra Wahrer SpA, used for the manufacture of beer maize groats and broken rice bought directly from the producers who, by express agreement, assigned to it the right to receive the production refunds. Pursuant to Article 3 of Regulation No 665/75 of 4 March 1975 and to Regulation No 668/75 of 4 March 1975, the refunds provided for by the earlier provisions were not paid to the applicant for the period to 19 October 1977. Following the judgments of the Court of Justice of 19 October 1977 in Joined Cases 124/76 and 20/77 SA Moulins et Huileries de Pont-à-Mousson cited above and the judgment of 4 October 1979 in Joined Cases 241, 242 and 245 to 250/78 DGV, Deutsche Getreideverwertung und Rheinische Kraftfutterwerke GmbH cited above, Birra Wührer SpA by telex message of 18 August 1980, applied to the Commission of the EEC for payment of the refunds due to producers of maize groats and broken rice. By letter of 3 September 1980 sent to Italy's Permanent Representation to the European Community, the Commission stated that as in other similar cases it was unable to grant the application because it had been received by the Commission after the expiry of the five-year period laid down by Article 43 of the Protocol on the Statute of the Court of Justice of the EEC [hereinafter referred to as the “Statute of the Court”].

b) The second applicant, Mangimi Niccolai SpA, produced maize groats intended for the brewing industry from 16 March 1976. Pursuant to Article 3 of Regulation No 665/75 of 4 March 1975, it received no refunds in respect of its production during the period to 18 October 1977. On 19 November 1979, following the judgments of the Court of Justice of 19 October 1977 and 4 October 1979 in the abovementioned cases, the company applied for payment of the refunds of the Italian Ministries of Finance and Agriculture and, by telex message of 15 March 1980, submitted a similar application to the Commission of the European Communities. By letter of 30 September 1980, the Commission refused to grant the application because it had received it after the expiry of the five-year period laid down by Article 43 of the Statute of the Court.

c) The third applicant, De Franceschi Marino & Figli SpA, produced maize groats intended for the brewing industry from 1 August 1975 of 18 October 1977. Pursuant to Article 3 of Regulation No 665/75 of 4 March 1975, it received no refunds in respect of its production in the period to 19 October 1977. On 8 November 1979, following the judgments of the Court of Justice of 19 October 1977 and 4 October 1977, in the abovementioned cases, it applied for payment of the refunds to the Italian Ministries of Finance and Agriculture and, by telex message of 27 March 1980 and also by registered letter of 8 May 1980, submitted a similar application to the Commission of the European Communities. From the Italian authorities it claimed a total payment of LIT 131466576. From the Commission, on the other hand, whilst not specifying a figure, it claimed an amount equal to the refunds due for maize groats and meal and stated the quantities produced during the period from 1 August 1975 to 19 October 1977. By letter of 30 September 1980, the Commission replied that it was unable to grant the application because it had received the direct application after the expiry of the five-year period laid down by Article 43 of the Statute of the Court.

d) During the period from 1 September 1975 to 18 October 1977, the fourth applicant, Riseria Modenese Sri produced and sold to various breweries broken rice intended for the production of beer. Following the judgments of the Court of Justice of 19 October 1977 and 4 October 1979 in the abovementioned cases, it applied to the Commission by telex message of 8 August 1980 for payment of the refunds which it had not received. That application evoked no response. The applicant points out that the Commission rejected similar applications on the ground that it had received them after the expiry of the five-year period laid down by Article 43 of the Statute of the Court, a period which in the Commission's view began to run on 20 March 1975, the date on which the regulation abolishing the refunds was published.

e) The fifth applicant, Riserie Angelo and Giacomo Roncaia, produced broken rice intended for the manufacture of beer during the period from 1 September 1975 to 18 October 1977. Until 19 October 1977 it was refused the refunds which it should have received in respect of its production on the basis of Article 1 of Regulation No 668/75 of 4 March 1975. Following the judgments of the Court of Justice of 19 October 1977 and 4 October 1979 in the abovementioned cases, it applied for payment of the refunds to the Commission of the European Communities by letter of 2 September 1980. That application evoked no response. The applicant points out that the Commission has refused similar applications on the ground that they were received after the expiry of the five-year period referred to in Article 43 of the Statute of the Court, a period which in the Commission's view began to run on 20 March 1975, the date on which the regulation unlawfully abolishing the refunds was published. The first applicant, Birra Wührer SpA (Case 256/80), brought its action before the Court of Justice on 24 November 1980, the second applicant, Mangimi Niccolai SpA (Case 257/80), on 24 November 1980, the third applicant, De Franceschi Marino & Figli SpA (Case 265/80), on 28 November 1980, the fourth applicant, Riseria Modenese Sri (Case 267/80, on 1 December 1980 and the fifth applicant, Riserie Roncata (Case 5/81), on 12 February 1981. By interlocutory applications lodged on 29 December 1980 and 30 January 1981, the Commission and the Council of the European Communities raised objections of inadmissibility against the first four actions under Article 91 of the Rules of Procedure of the Court of Justice and requested the Court to declare the actions inadmissible without considering the substance of the cases. Interlocutory applications to the same effect were also lodged in the case of the fifth action on 16 and 17 February 1981. The first four applicants, in their statements lodged on 20 February 1981 in reply to those interlocutory applications, and the fifth applicant, by its statement lodged on 3 March 1981, declared their agreement that the Court should decide upon—tmí objection of inadmissibility without considering the substance of the cases. By order of 11 March 1981 the Court, with the agreement of the parties, ordered that the cases be joined tor the purposes of the oral procedure and the judgment. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to give a decision on the objection of inadmissibility without considering the substance of the cases and to open the oral procedure without any preparatory inquiry.

II — Conclusions of the parties

1. The applicants claim that the Court should: Dismiss the objection of inadmissibility raised by the Council and the Commission; Order the European Economic Community to make good: (i) the damage sustained by the applicant, Birra Wührer SpA, as a result of the abolition by Regulations Nos 665 and 668/75 of 4 March 1975 of the production refunds and as a result of the Community's failure to restore those refunds in respect of supplies of broken rice and gritz effected during the periods from 4 September 1975 to 19 October 1977 and 14 June 1977 to 19 October 1977, by prescribing for the assessment of damages the criteria set out in the application, or such others as the Court may consider fair and appropriate (Case 256/80); (ii) the damage sustained by the applicant Mangimi Niccolai SpA, as a result of the abolition bv Regulation No 665/75 of 4 March 1975 of production refunds and as a result of the Community's failure to restore the said refunds in respect of sales of gritz effected during the period to 19 October 1977, by prescribing for the assessment of damages the criteria set out in the application, or such others as the Court may consider fair and appropriate (Case 257/80), (iii) the damage sustained by the applicant, De Franceschi Marino & Figli SpA, as a result of the abolition by Regulation No 665/75 of 4 March 1975 of the production refunds and as a result of the Community's failure to restore the said refunds in respect of sales of gritz effected during the period to 19 October 1977, by prescribing for the assessment of damages the criteria set out in the application, or such others as the Court may consider fair and appropriate (Case 265/80); (iv) the damage sustained by the applicant, Riseria Modenese Srl, as a result of the abolition by Regulation No 668/75 of 4 March 1975 of the production refunds and as a result of the Community's failure to restore the said refunds in respect of sales of broken rice effected during the period to 19 October 1977, by prescribing for the assessment of damages the criteria set out in the application, or such others as the Court may consider fair and appropriate (Case 267/80); (v) the damage sustained by the applicant, Riserie Angelo e Giacomo Roncata, as a result of the abolition by Regulation No 668/75 of 4 March 1975 of the production refunds and as a result of the failure to restore the said refunds in respect of sales of gritz effected during the period to 19 October 1977, by prescribing for the assessment of damages the criteria set out in the application, or such others as the Court may consider fair and appropriate (Case 5/81); Furthermore, order the European Economic Community to pay interest from the dates on which each refund should have been received; Finally, order the European Economic Community to pay the costs.

2. The Council and the Commission, raising the objection pursuant to Article 91 of the Rules of Procedure of the Court of Justice that the applicants' actions are time-barred under Article 43 of the Statute of the Court, contend that the Court should: Dismiss the actions as being out of time without considering the substance of the cases; and Order the applicants to pay the costs.

III — Submissions and arguments of the parties

The commencement of the five-year period of limitation provided for by Article 43 of the Statute of the Court

The Commission of the European Communities considers that the actions brought by the applicants are barred by reason of the five-year period of limitation referred to in Article 43 of the Statute of the Court (Title III, Procedure), which is worded as follows:

“Proceedings against the Community 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 period of limitation shall be interrupted if proceedings are instituted before the Court or if prior to such proceedings an application is made by the aggrieved party to the relevant institution of the Community ...”.

The Commission observes that, as regards the calculation of the limitation period, there can be no dispute as to the dies ad quem, which can only be 18 August 1980 (the date on which the telex message was sent to the Commission by the applicant in Case 256/80), 25 March 1980 (the date on which the telex message was sent to the Commission by the applicant in Case 257/80), 27 March 1980 (the date on which the telex message was sent to the Commission by the applicant in Case 275/80), 8 August 1980 (the date on which the telex message was sent to the Commission by the applicant in Case 267/80) and 2 September 1980 (the date on which the letter was sent to the Commission by the applicant in Case 5/81). Each of those dates must be considered to be that on which the prior application was made by the aggrieved party to the relevant institution of the Community pursuant to Article 43 of the Statute of the Court.

In the Commission's view those applications were submitted after the five-year period of limitation provided for by Article 43 of the Statute of the Court had expired, owing to the fact that the dies a quo to be adopted for the purpose of calculating the limitation period is 20 March 1975, the date on which Regulations Nos 665 and 668/75 were published.

The Commission considers that there are two elements in the first sentence of Article 43 which are essential to the interpretation of the provision, namely:

a) the limitation period of five years applies to proceedings brought against the Community in relation to non-contractual liability, and

b) the dies a quo is expressly defined as that of the occurrence of the event giving rise to such proceedings.

Under the system established by Article 43 it is therefore necessary to identify the time when, in relation to the specific “events”, the right to institute “proceedings” accrues.

According to the Commission, by the word “event” the Community legislature meant not only a simple event or a simple material act but any kind of conduct or failure to act and any situation, in the widest sense of the term, which causes damage to be sustained. That wide concept cannot fail to cover the actions of a “public authority”, or in other words, the measures adopted by ii, which as a result are capable as such of “giving rise” to proceedings arising from liability.

In that regard, the Commission considers that it is a principle generally recognized in the legal systems of the Member States that the period of limitation begins to run from the day on which proceedings may be brought and refers to Article 2935 of the Italian Codice Civile, Article 198 of the German Bürgerliches Gesetzbuch and Article 2252 of the French Code Civil.

In order to identify the date on which the applicants were able to bring proceedings arising out of liability, the Commission cites the judgment of the Court of 2 June 1976 in Joined Cases 56 and 60/74 Kampffmeyer v Commission and Council [1976] ECR 711 and the judgment of 2 March 1977 in Case 44/76 Milch-, Fett- und Eier-Kontor GmbH v Council and Commission [1977] ECR 393, where the Court held as follows:

“Article 215 of the Treaty does not prevent the Court from being asked to declare the Community liable for imminent damage foreseeable with sufficient certainty even if the damage cannot yet be precisely assessed. To prevent even greater damage it may prove necessary to bring the matter before the Court as soon as the cause of damage is certain. This finding is confirmed by the rules in force in the legal systems of the Member States, the majorit), if not all, of which recognize an action for a declaration of liability based on future damage which is sufficiently certain.”

The Commission points out that in the same case the Court made the following statement with regard to the precise point at which actions arising out of liability may be brought:

“... As soon as the Community rules in question were published and before they were put into effect the applicants were justified in bringing before the Court the question whether and to what extent these rules were such as to put them at a disadvantage in relation to their French competitors and if so whether these rules were for this reason contrary to the principle of equal treatment. Since the damage which could result from the factual situation and the rules was imminent, the applicants could reserve the right to specify the amount of the damage which the Community would have eventually to make good and restrict themselves for the time being to asking for a finding of the Community's liability.”

In the Commission's opinion, the analogy with the circumstances of the present cases is obvious and it considers that if that case-law is compared with what has been stated above, the necessary conclusion so far as the present cases are concerned is that since the cause of the actions for damages accrued immediately after publication of the unlawful measures abolishing the refunds, namely on 20 March 1975, that date constituted the beginning of the limitation period relating to the actions.

In the Commission's view, all the conditions laid down by the Court in the abovementioned judgments are satisfied in these cases. Imminent damage foreseeable with sufficient certainty exists in these cases notwithstanding the fact that the loss of the refunds by the applicants did not become effective until 1 August or 1 September 1975, the respective dates on which Regulations Nos 665 and 668/75 entered into force. The Commission adds that it was even possible for the applicants to assess the quantum of the damage by means of a mathematical calculation based on the relationship between the amount of the refunds and the quantities of goods produced which qualified for the production refunds.

The Commission does not accept the argument that in order to determine the date on which the period of limitation began to run it is necessary to refer to the time when the applicants actually produced the goods in question and actually found that there were no refunds.

That argument, it submits, is incompatible with the wording of Article 43 as interpreted in the light of the abovementioned case-law of the Court and, moreover, applies to these cases criteria generally applied to liability arising from an event which is unlawful in the strict sense, where it is possible that the damage may not occur at the same time as the event giving rise to the damage but may become apparent later. In such a case, the limitation period runs from the moment when the damage is perceived and that in itself constitutes a derogation from the general principle, but one legitimately imposed on grounds of equity, because although at the time when the event occurs the damage is merely a possibility and unforeseeable, it nevertheless remains a direct consequence of the event.

The Commission observes that in the present cases the cause of the damage was the Community regulations whose publication gave rise to the actions for damages. It was then that the unlawful act (in the present cases discriminatory treatment) was committed and not when the applicants produced their goods. If this were not the case, it would have to be acknowledged that the cause of the damage was not the Community regulations but the activity of the person claiming compensation, which would be manifestly absurd.

Moreover, if the five-year limitation period were calculated from a date subsequent to the publication of the Community regulations, the limitation period would no longer be five years but five years increased by the period between publication in the Official Journal and the date on which the trader claims that he has in fact suffered damage.

Finally, the Commission observes that if the applicants' argument that the beginning of the limitation period coincided with the manifestation of the damage which each of them sustained were accepted, there would be as many limitation periods of five years as the applicants produced consignments of broken rice and maize gritz and that would lead to a wholly unjustified piecemeal division of the concept of “proceedings” which is at the basis of the limitation.

The Council of the European Communities admits that it is possible to take several dates as the starting point of the five-year period of limitation laid down by Article 43 of the Court.

The Council points out that the applicants maintain inter alia that it would be possible to regard the limitation period as having commenced at a later date, in this case at the date on which Regulations Nos 1125, 1126 and 1127/78 were published, in so far as those regulations failed to reestablish the right to payment of the refunds in respect of the period from 1 August or 1 September 1975 to 18 October 1977.

The Council accepts that theoretically it would be possible to consider other dates as constituting the beginning of the limitation period, for example 4 March 1975, the date on which Regulations Nos 665 and 668/75 were adopted, or 1 August and 1 September 1975, the dates on which payment actually ceased, or the respective dates on which the maize gritz or broken rice were actually produced during the period from 1 August 1975 to 18 August 1977 or indeed 4 October 1979, the date on which the Court held that the reintroduction of refunds not covering the period in question was unlawful.

The Council maintains, however, that the Commission adopted the legal position most appropriate to the letter and spirit of Article 43 of the Statute of the Court, without restricting too drastically the rights which private persons might legitimately claim.

In the Council's view, Article 43 established a close connection between the commencement of the limitation period and the “event giving rise” to non-contractual liability, that is to say, the origin of the damage. Thus, the provision means that as from the time when it is certain that the person concerned has suffered or will suffer damage the period of five years begins to run. That view implies therefore that in economic terms there is a certainty of damage in so far as the interests of the party in question are concerned, without its being necessary, for the purpose of causing time to begin to run, for legal liability to be established.

In other words, it is necessary and sufficient that the person concerned was fully aware or could or ought to have become so, as an informed and prudent trader, of the facts that his interests were or would be affected and it is not necessary for him to be certain that the damage will be made good, that is to say that the Community will have to accept liability for it under Article 215 of the EEC Treaty.

The Council stresses that if the date of publication of the 1975 regulations is taken as commencement of the period of limitation, this may in the present cases meet the requirements of the national laws of the Member States. As is clear from the analysis undertaken by Mr Advocate General Reischl in Case 44/76 Milch-, Fett- und Eier-Kontor GmbH v Council and Commission [1977] ECR 393, in particular at p. 414, the most stringent criteria of national law (in that case, according to Mr Reischl, those of German law) are fulfilled provided that the damage is certain, even if it is future, and that it was possible for the person concerned to learn of the damage and of the person responsible for it, so that it might be expected of him to bring an action against the latter.

In these cases, it was clear, as from the date of publication of the 1975 regulations, that those concerned would suffer some financial loss by not receiving the refunds in respect of their production after the entry into force of the regulations concerned.

The Council observes that those regulations were unconditional measures and that their implementation at national level was automatic. In those circumstances, it would be invalid to make a distinction, necessary where the damage is certain, between the event giving rise to the damage and its subsequent occurrence.

The Council does not think that this interpretation is in the present cases too strict or too onerous for those concerned and refers to the judgments in which the Court stressed that the protection of the rights of private persons required that they should be informed and prudent (judgment of 4 February 1975 in Case 169/73 Compagnie Continentale France v Council [1975] ECR 117, paragraph 23 of the decision; judgment of 1 February 1978 in Case 78/77 Lührs v Hauptzollamt Hamburg-Jonas [1978] ECR 169, the last subparagraph of paragraph 6 of the decision).

In that regard, the Council states that the majority of the undertakings in the sector concerned brought actions directly before the Court of Justice in order to make their claims in good time and many undertakings began to do so as early as 1975.

In any event, the Council cannot accept that an alleged ignorance of the Community law in force may be relied upon in law against the Community.

In those circumstances, the Council considers that it is not unreasonable to raise the plea that the applicants' actions are time-barred since they have not acted with the diligence which might legitimately be expected of them.

The Council stresses that this is the attitude adopted by the Court in those judgments in which it held to be admissible an action relating to future damage, the cause of which was however certain (Joined Cases 56 to 60/74 Kurt Kampffmeyer Mühlervereinigung KG and Others v Commission and Council [1976] ECR 711, second subparagraph of paragraph 6 of the decision (the second “durum wheat” case)).

The interpretation that the date on which Regulations Nos 665 and 668/75 were published is the commencement of the period of limitation is, moreover, not only consistent with the wording of Article 43 of the Statute of the Court but is all the more compelling because of the legal certainty which it offers by making it possible to ascertain, in each particular case, a specific date, and one which is not arbitrary, for the beginning of the limitation period.

In the Council's opinion, the other dates set out above all have the disadvantage of being uncertain or of being dependent on the individual conduct of those concerned, that is to say of not being directly related to the event which gives rise to the damage but to subsequent factors, such as, for example, the actual production of the applicants.

The Council observes that the onlv judgment in which the Court has interpreted Article 43 in a manner relevant to these cases, namely the judgment in Joined Cases 46 and 47/59 Meroni v High Authority [1962] ECR 411, does not conflict with that interpretation.

The Council points out that in that judgment the Court held that the limitation period under the ECSC Treaty cannot begin to run in respect of damage so long as the damage is still uncertain, that is to say so long as it is not possible to know for certain whether it has been or will be incurred and submits that that reasoning must also apply in the case of the EEC Treaty.

The Council adds on the other hand that if it were accepted that time began to run from the date of publication of Regulations Nos 1125, 1126 and 1127/78, as argued inter alia b) the applicants, actions in respect there of would not be barred until 22 May 1983, that is to say five years after the publication of the abovementioned regulations. That means that there would be a limitation period of almost eight years.

The Council concludes that is must therefore be held that the applicants' actions are out of time and are barred by Article 43 of the Statute of the Court.

The Council nevertheless observes that one special circumstance is deserving of consideration, because according to its application the applicant in Case 257/80 did not begin to produce gritz until March 1976. The Council admits that it may therefore be wondered whether that applicant is not justified in maintaining that time could not have begun to run against it in March 1975, one year before it began to produce gritz. In reply to that argument, the Council points out that in its judgment of 4 October 1979 in Case 245/78 SA Maïseries Benelux NV [1979] ECR 3017. at paragraph 19 of the decision, the Court rejected a claim arising in an identical manner to the present case.

The applicants consider that it is necessary first to clarify certain fundamental concepts concerning the date on which the limitation period begins to run in the case of non-contractual liability.

They accept that it is perfectly correct that Article 2935 of the Italian Codice Civile cited by the Commission states that “the limitation period shall begin to run on the date on which the right of action arises” and, moreover, that in cases involving non-contractual liability and the making good of damage arising from an unlawful event (that event corresponding to the délit and quasi-délit of French law), the five-year period of limitation laid down in Article 43 of the Statute of the Court begins to run on the day on which the event occurs.

Nevertheless, they observe that that particular provision must be applied in conformity with a well-established and consistent line of Italian cases in which it is acknowledged that the principle stated in Article 2947 “must be understood as meaning that the point in time to be taken into account is not that at which a breach of a legal duty as to behaviour occurs but the point at which that breach adversely affected the legal situation of another person” (Reports of Cases on the Codice Civile, Giuffrė 1972, Vol. VI, p. 736). In other words, “the limitation period for the right to claim compensation for damage runs from the date on which the damage occurs and not from the moment when the act is accomplished” (Cass. 18 November 1974, No 3692, Arch. Giur. Circol. e Sinistri 1974, p. 416).

According to the applicants, the reasoning underlying the abovementioned case-law has been explained on several occasions by the Italian Corte di Cassazione [Court of Cassation] (judgment of 15 October 1970 in Case 2037 Giust, Civ. I, 1970), which has decided that “the event whose occurrence marks the date on which the period of limitation laid down in Article 2497 begins to run ... must be understood to mean the event as a whole, including the wrongful conduct of the person concerned and its harmful effect”.

The applicants observe that the distinction between a harmful event with lasting effects and a continuing harmful event is a corollary of the abovementioned case-law. They state that in the first case there is a single, nonrecurring unlawful event from which the period of limitation runs. In the second case, however, the right to compensation arising when the event occurs is continually renewed. They again cite the case-law of the Italian Corte di Cassazione which, in making the distinction, decided that “if the harmful event is of such a nature as subsequently to give rise to other harmful effects, which, in relation to the damage which originally occurred do not constitute a new and separate phenomenon (in such a case the period of limitation would clearly begin to run from the time when those effects occurred) but merely represent an aggravation of the damage, that is to say, the result of its natural and progressive development, the date on which the period of limitation begins to run nevertheless continues to be related, without qualification, to the original occurrence of the situation giving rise to the damage”; in such a case “the aggravation of the damage affects merely the amount of financial compensation and cannot also have the effect of delaying until the aggravation occurs the beginning of the period of limitation which still continues to be related to the original occurrence of the harmful event” (Cassazione No 649 of 30 January 1979 in Foro It. 1979, I, p. 1496).

According to the applicants, this last explanation, taken from the case-law, is of determinant significance for the question at issue. Thus they maintain not only that the period of limitation could not begin to run before the occurrence of the harmful effect resulting from the unlawful measures contained in Regulations Nos 665 and 668/75 but also that even if the right to receive the “production refunds” for the production of certain quantities of meal or broken rice intended for the production of beer were time-barred, that was certainly not the case with regard to the subsequent production, that is to say, the production which was achieved less than five years before the application for payment was made through administrative channels or before the Court.

It follows that, at most, their claims could not be accepted in full; they cannot, however, be rejected completely. Although the problem does not arise in these cases because, as the applicants have stated, none of their claims are time-barred, either wholly or in part, the applicants consider that the explanations set out above are necessary in order to clarify all aspects of the question.

The applicants state that French case-law (Nouveau Répertoire de Droit Dalloz, 1964, II, “Prescription Civile”, paragraphs 33 to 37) follows the same trend. Thus it has been held “that the limitation period for an action to establish liability does not begin to run until the day on which all the requirements for the existence of the civil wrong are fulfilled, that is to say the day on which the injured party suffers actual and certain damage” (Civ. 21 October 1908, p. 1908, 1449; 11 December 1918, D.P. 1923, 1.96) and that “the claim of a person who has suffered injury or damage as the result of a wrongful act or omission only accrues, as against the person responsible for that act or omission, as from the day on which the injury or damage actually became apparent (paragraph 38 of the abovementioned text).

The applicants observe that the Commission expressly acknowledges that according to the principles generally applied in the case of liability for an unlawful act in the strict sense, the period of limitation is calculated from the occurrence of the damage and not from the event giving rise to it, but they criticize the Commission for making the mistake of considering that solution to be exceptional and to be dictated by reasons of “equity”, whereas it constitutes nothing more than the application of a general principle applicable in all cases involving claims for the compensation of damage resulting from any fraudulent (intentional) or negligent (unintentional) act or omission.

In that regard, the applicants consider it significant that Article 2947 of the Italian Codice Civile provides that the period of limitation is to begin to run on the day on which the event giving rise to the damage occurred. However, in a consistent and unanimous line of decisions the provision has been judicially interpreted to the effect that the term “event” means the occurrence as a whole and encompasses the wrongful act or omission and the damage arising from it. The applicants maintain that this is fully in accordance with French case-law, according to which the period of limitation cannot begin to run until the injured party has suffered certain and actual damage.

They maintain that even a cursory examination of both Italian and French case-law is sufficient to demonstrate that the conclusions which are sought to be drawn from two references are mistaken. The first reference, which is to an Italian provision (Article 2935 of the Italian Codice Civile), is apposite, whereas the other, a reference to a French provision (Article 2252 of the French Code Civil), is inapposite since it provides that the period of limitation is not to run against minors.

Without undertaking an analysis of comparative law, the applicants are convinced that the solutions adopted in the other Member States are, if not identical, then analagous to Italian and French case-law. They consider that that is the conclusion to be drawn from the comparative study undertaken by Mr Advocate General Reischl in Case 44/76 Milch-, Fett- und Eier-Kontor GmbH Council and Commission [1977] ECR 410, at p. 414, which, they consider, fully supports their view.

It suffices, they claim, to point out that the differences in the case-law as to the time at which the damage and the person liable are identified are not relevant to the present disputes, because in the present cases the damage occurred and was repeated only when the meal and broken rice were produced and designated for the manufacture of beer.

The applicants submit that the references made by the defendants to precedents in the case-law of the Court are wholly irrelevant.

The Council's reference to the judgment of 14 December 1962 in Joined Cases 46 and 47/59 Meroni [1962] ECR 411 is illadvised. The applicants observe that it is clear from that judgment that the Court took the view that by virtue of Article 40 of the Statute of the Court (ECSC) the period of limitation cannot not begin to run until the amount of the damage sustained is finally established and in his abovementioned opinion Mr Advocate General Reischl demonstrated authoritatively that the interpretation adopted for that provision is also valid for the interpretation of Article 43 of the Statute of the Court (EEC).

With regard to the judgment given in Joined Cases 56 to 60/74 Kampffmeyer, cited above, the Court, according to the applicants, did not in any way concern itself with the question of limitation, whereas in Case 44/76 Milch-, Fett- und Eier-Kontor GmbH, cited above, the Commission had pleaded that the action was time-barred but the Court, which decided to consider the substance of the case first, took the view that the application was unfounded and did not give a decision on the objection that the action was out of time.

Thus, the applicants consider that the judgments cited by the defendants are in that initial and basic respect not of the slightest relevance to the solution of the particular question at issue in these cases.

They stress that the judgment in Joined Cases 56 to 60/70 Kampffmeyer cited above was not in any way concerned with the question of limitation but solely with the admissibility of an action brought in respect of damage which had not yet occurred but which was foreseeable and arose from the provisions of regulations which had been published but had not yet entered into force and that the Court held that Article 215 did not prevent a person from bringing an action before the Court immediately, whilst reserving the right “to specif) the amount of the damage which the Community would have eventually to make good”.

The Court thus acknowledged the right to bring in advance actions to establish liability for “imminent damage foreseeable with sufficient certainty” but did not decide that it was necessary to take action as soon as a regulation containing provisions which might give rise to damage was published.

The applicants thus maintain that it constitutes an exception for an action to be considered admissible even before the damage has been ascertained. The normal rule is that an action must be brought after the harmful provision has actually caused damage and therefore after it has entered into force. According to the applicants, however, even the entry into force of the harmful provision may be insufficient to justify an action for damages (as distinct from an action confined to seeking a general declaration of liability), which may only be directed towards obtaining compensation for damage which has actually occurred, that is to say, in the words of the Court, “the amount of the damage which the Community would eventually have to make good”. The applicants assert that as a general rule the action must be brought after the damage has occurred and not before, which means that the period of limitation can therefore only begin to run from the occurrence of the damage.

The applicants argue further that where an action is brought not for a decision on the existence of liability but. as in these cases, for an order that a specific sum should be paid by way of compensation for damage actually incurred, the action may not be brought until after the damage has actually occurred, because it is not until the damage arising from the unlawful event has occurred that a complete and well-founded claim for damages may be formulated.

The applicants criticize the Commission for referring only to two paragraphs of the judgment in Joined Cases 56 and 60/74 Kampffmeyer, cited above, and for failing to appreciate that they in fact confirm that the applicants' observations are well founded. They note that in that judgment the Court acknowledged that “to prevent even greater damage it may prove necessary to bring the matter before the Court as soon as the cause of damage is certain”, in which case the action is therefore brought as a preventive measure and is in itself exceptional. The Court added that the majority of the Member States “recognize an action for a declaration of liability based on future damage which is sufficientily certain”, an action which in the applicants' view is quite distinct from an action for damages. The period of limitation cannot therefore begin to run until it is possible to bring an action for damages and not before, even if future damage is foreseeable.

The applicants point out that in Joined Cases 56 to 60/74 Kampffmeyer cited above (as well as in Case 44/76 Milch-, Fett- und Eier-Kontor GmbH, in another context), the Commission pleaded that the actions were inadmissible because they were premature in view of the fact that the damage had not yet occurred in full. However, the Commission did not plead that the applicants had no locus standi, that is to say, it did not dispute the fact that the applicants carried on a commercial activity which had been or might have been affected by the Community measure as from the date on which it became applicable.

According to the applicants, their situation in the present cases is quite different because entitlement to the refunds arises as follows:

a) In the case of maize meal intended for the manufacture of beer as the result of: the processing of the maize into meal carried out under the control of the customs authorities; the use of the meal in the brewing industry. The refund must be granted on the basis of the initial processing in conjunction with subsequent proof that the product obtained was used by the brewing industry.

b) In the case of broken rice used by the brewing industry: the refund may be claimed by the processor (beer producer) with the written consent of the producer of the broken rice; or by the producer of broken rice after the actual use has been checked and details of the sales invoice have been given.

More particularly, the applicants observe that in fact:

a) Birra Wührer SpA was not entitled to claim the refunds until it had purchased the maize meal and broken rice and had obtained from the producers of the products an assignment of the refunds themselves. In that regard the applicant in Case 256/80 observes that although it is not a producer but merely a user of gritz and broken rice, it is entitled to take the place of the producers of the products which it has bought by obtaining an assignment of right to the refund by express agreement. The company states that this practice is governed under Iulian law by Article 1201 of the Italian Codice Civile (and with virtually identical provisions by Article 1250 of the French and Belgian Codes Civils) and maintains that the question is dealt with at least in a similar manner in the legal systems of the other Member States. Its application could not therefore have been submitted until after 1 August and 1 September 1975. Before that date Birra Wührer SpA, had no right to take action, even in respect of foreseeable damage, because everything was dependent on the conduct of a third party (sale of products and assignment of the right to the refunds). Birra Wührer SpA in fact claims in respect of the year 1975 the refund for a single purchase of 297.50 quintals of broken rice invoiced on 4 September 1975.

b) Mangimi Niccolai SpA did not start to produce maize meal intended for the manufacture of beer until 16 March 1976. It attributes the damage which it suffered to the fact that it did not receive the refunds to which it was entitled, but only in respect of the period from 16 March 1976, the date on which it started to produce maize groats intended for the brewing industry. It was therefore not until that date that the period of limitation could begin to run because it was only then (and not before) that the applicant was unlawfully deprived of a right which ought not to have been denied to it. It was only then that the applicant was able to demand the refund, for which it applied well before the expiry of the five-year period of limitation.

e) De Franceschi Marino & Figli SpA claims payment of the refunds to which it was entitled as from December 1975 for the production of maize meal sold to the company Dreher, a beer manufacturer, on the basis of invoices dated 1. 12 and 15 December 1975. It attributes the damage which it suffered to the fact that it did not receive the refunds to which it was entitled, but only in respect of its actual production of maize groats intended for the brewing industry during the period from 1 August 1975 to 4 October 1979. It was therefore not until that date that the period of limitation could begin to run because it was only then that the applicant was unlawfully deprived of a right which ought not to have been denied to it.

d) Riseria Modenese Sri claims payment of the refunds for broken rice sold to the company Dreher and to the company Peroni, beer manufacturers, in November and December 1975 on the basis of invoices dated 25 November, and 5, 12 and 24 December 1975. It attributes the damage which it suffered to the fact that it did not receive the refunds to which it was entitled but only from the date on which the broken rice intended for the production of beer was actually produced. It was therefore not until that date that the period of limitation could begin to run because it was only then, and not before, that the applicant was unlawfully deprived of a right which ought not to have been denied it.

e) Riserie Angelo e Giacomo Roncata produced broken rice intended for the manufacture of beer from 1 September 1977. It attributes the damage which it suffered to the fact that it did not receive the refunds to which it was entitled, but only from the date on which the broken rice intended for the manufacture of beer was actually produced. It was therefore not until that date that the period of limitation could begin to run because it was only then that the applicant was wrongfully deprived of a right which ought not to have been denied it.

The applicants observe that the fact that Mangimi Niccolai SpA did not begin production until March 1976 causes some concern to the Council's defence which seeks to overcome that problem by relying upon paragraph 19 of the decision in the judgment of 4 October 1979 in Case 245/78 (Joined Cases 241, 242 and 245 to 250/78 DGV, Deutsche Getreideverwertung und Rheinische Kraftfutterwerke GmbH and Others v Council and Commission [1979] ECR 3017), where the Court dismissed the application of SA Maïseries Benelux NV, which arose in a manner identical to the present case. The applicants consider that in that case the application was dismissed only because “the damage alleged by that applicant cannot be said to have been caused by the abolition of the refunds for gritz”, or in other words, because the Court held that there was no causal link. In this case it is not in dispute nor can there be any dispute that a causal link exists.

The applicants observe, moreover, that the defendants assen that if the event giving rise to the damage is the Community regulation, it would be absurd that the period of limitation should run from the date on which the goods were produced, that is to say, as a result of the activity of the very person who is claiming reimbursement.

In the applicants' view that reasoning is fallacious. They observe that the event which gave rise to the damage was not the production of the goods which qualified for the refunds but the unlawful provision which prevented payment of the refunds themselves. The damage caused by the unlawful provision was therefore merely potential for so long as the goods had not been produced. It materialized at the time of production and, in actual fact, in the present cases at the time when the maize meal or broken rice which had been produced earlier was sold to the breweries. Only from that date therefore could an action for damages be brought. Consequently, the period of limitation began to run as from that date.

In reply to the Commission's argument to the effect that if the period of limitation is not calculated from the date on which the unlawful provision was published, the result will be to increase the five-year period by the period from the date of publication to the time when the damage occurred, the applicants maintain that that is precisely what has been stated in a consistent and unanimous line of judicial decisions, both Italian and French, and that such a view conforms to elementary requirements of substantive justice. The applicants seek to demonstrate the correctness of their view by asking the following question: if the judgments of the Court on which the applicants base their actions had been published later, at the end of the five-year period, how could the right to bring an action for damages have been refused to a person who commenced production not merely a short time before but also some considerable time after the expiry of the five-year period from the date on which the unlawful measure was published?

Finally, in reply to the Commission's argument to the effect that if the applicants' view were accepted, “there would be as many five-year periods of limitation as there were consignments of gritz or broken rice produced”, they maintain that such an eventuality is also acknowledged by both the Italian and French courts in a consistent and unanimous line of decisions. The principle is a general one which applies for example in all cases involving payments of account, recurrent obligations, recovery of undue payments, etc.

According to the applicants, their view does not therefore lead to “a wholly unjustified piecemeal division of the concept of ‘proceedings’ which is at the basis of limitation”, as asserted by the Commission.

Finally, the applicants consider that the five-year period of limitation may have started to run on the date on which Regulations Nos 1125 and 1127/78 were published. That view is consistent with the reasoning of the defendants which seeks to establish the date on which the unlawful regulations were published as the starting point of the limitation period provided for by Article 43 of the Statute of the Court.

They maintain that if the arguments set out above concerning the date on which the five-year period of limitation started to run were not accepted, account would have to be taken of the fact that the unlawful measures embodied in Regulations Nos 665 and 668/75 were followed by the unlawful measures embodied in Council Regulations Nos 1125 and 1127/78, which unlawfully restricted the grant of the refunds solely to the period from 19 October 1977, the date of the judgment of the Court in Joined Cases 124/76 and 20/77. The applicants claim that such a restriction was inconsistent with the principle of equality and nondiscrimination, with the previous decision and with the nature of that judgment which was declaratory and not constitutive. It follows that the period of limitation must have begun to run on the date on which Regulations Nos 1125 and 1127/78 were published. The applicants observe in that regard that in their pleadings the Council and the Commission made no attempt to refute the applicants' arguments to the effect that it was unlawful for Council Regulations Nos 1125 and 1127/78 to restrict the reintroduction of the refunds to the period from 19 October 1977. That unlawful restriction which was contested in the actions brought by the applicants, so that, as the case mav be, it is possible for the period of limitation to have begun to run on the date on which those regulations were published.

Interruption of the five-year period of limitation

The Council of the European Communities maintains that the applications which the applicants sent to the Italian authorities and to the Commission of the European Communities could not have the effect of interrupting the five-year period of limitation laid down by Article 45 of the Statute of the Court.

With regard to the applications sent to the Italian authorities by the applicants in Cases 257/80 and 265/8C on 19 November and 8 November 1979, the Council observes that in view of the wording of Article 43 of the Statute of the Court such a step cannot have the effect of interrupting the period of limitation.

The Council points out that that article provides that the period of limitation is to be interrupted “if proceedings are instituted before the Court or if prior to such proceedings an application is made by the aggrieved party to the relevant institution of the Community”.

It follows that in a case involving the non-contractual liability of the Community, in the absence of a legal basis in a Community regulation for the payment of refunds, an application made by certain traders to the national authorities responsible in the normal way for the payment of refunds or even the fact ihat those national authorities repon such applications to the Community authorities may not be regarded as an application by the aggrieved party to “the relevant institution of the Community” (the Council or the Commission).

Consequently, the Council asserts, the applications made by the applicants to the Italian authorities on 8 and 19 November 1979 could not interrupt the period of limitation.

Should the Court not agree with the Council on that point, the Council relies on another provision of Article 43 of the Statute of the Court requiring an applicant who interrupts the period of limitation laid down by Article 43 to institute proceedings before the Court within the period provided for in the second paragraph of Article 175 of the EEC Treaty, taking into account an extension of the time-limit on account of distance (ten days in the case of Italy). That makes a total period of four months and ten days from the acts interrupting the period of limitation on 8 and 19 November 1979, that is to say 18 and 29 March 1980. The Council points out that the applicants did not bring proceedings before the Court until November 1980 and later.

Nor, in the Council's view, could the application sent by the applicants to the Commission have the effect of interrupting the five-year period of limitation laid down by Article 43 of the Statute of the Court.

In Case 257/80 an application was sent to the Commission by telex message of 25 March 1980, whereas the period of limitation had expired five days earlier, that is to say on 20 March 1980.

Moreover, the Council maintains that the Commission's letter of 3 September to the applicant in which it relied upon the period of limitation laid down by Article 43 could not interrupt a period of limitation which had already expired on the day on which the letter was sent.

The same reasoning must apply in Case 265/80. The telex message sent by the applicant to the Commission on 27 March 1980 could not interrupt the period of limitation which had expired on 20 March 1980, or on 18 March 1980 if it is accepted that the application sent by the applicant to the Italian authorities on 8 November 1979 was capable of interrupting the limitation period.

In Case 267/80, the letter sent by the applicant to the Commission on 8 August 1980 was also too late to interrupt the period of limitation which had expired on 20 March 1980.

The same is true in Case 256/8C, the facts of which are identical to those in Case 267/80 (except that the applicant's letter to the Commission was dated 18 August 1980), and in Case 5/81 (in which case the applicant applied to the Commission by letter of 2 September 1980).

With regard to the interruption of the period of limitation, which was possibly brought about by means of the applications sent to the Italian authorities, the applicants observe that the Council's reference to the second paragraph of Article 175 of the EEC Treaty, which provides for a formal request to act, which was never made, seems incomprehensible since it seems to acknowledge that the provision is not applicable and that the period referred to cannot be relied upon.

The applicants state, moreover, that it is clear that the applications sent to the Italian authorities were transmitted by them to the Commission. Whilst they do not claim that those applications had the effect of interrupting the five-year period of limitation provided for by Article 43 of the Statute of the Court, the applicants express their belief and are prepared to give formal evidence to the effect that such transmission actually took place before the expiry of the period which commenced on the date on which Regulations Nos 665 and 668/75 were published. According to the applicants that is apparent, moreover, from the fact that the Commission, in its reply to the Italian Government, referred word for word and specifically to the applications, indicating by name those applicants which applied to the Italian authorities.

IV — Oral procedure

At the sitting on 8 July 1981 oral argument was presented by the following: N. Catalano, of the Rome Bar, for Birra Wührer SpA, Mangimi Niccolai SpA, De Franceschi Marino & Figli SpA, Riseria Modenese Sri and Riserie Angelo e Giacomo Roncaia; A. Bräutigam and A Sacchettini, acting as Agents, for the Council of the European Communities; and R. Wainwright and G.L. Campogrande, acting as Agents, for the Commission of the European Communities.

The Advocate General delivered his opinion at the sitting on 13 October 1981.

Decision

1. By application lodged at the Court Registry on 24 November 1980, 28 November 1980, 1 December 1980 and 12 February 1981, the applicants brought actions under Article 178 and the second paragraph of Article 215 of the EEC Treaty for compensation for damage caused to them by Regulations (EEC) Nos 665 and 668/75 of the Council of 4 March 1975 abolishing the production refunds in respect of maize groats and meal and broken rice and as a result of the failure to restore the refunds in respect of the period from 1 August or 1 September 1975 to 19 October 1977, the last-mentioned date being the retroactive date of the application of Council Regulations (EEC) Nos 1125 and 1127/78 of 22 May 1978, which reintroduced the abovementioned system of production refunds.

2. The Council and the Commission have raised a preliminary objection under Article 91 of the Rules of Procedure founded on the five-year period of limitation under Article 43 of the Protocol on the Statute of the Court (EEC) (hereinafter referred to as “the Statute of the Court”) according to which “proceedings against the Community in matters arising from noncontractual liability shall be barred after a period of five years from the occurrence of the event giving rise thereto” and “the period of limitation shall be interrupted if proceedings are instituted before the Court or if prior to such proceedings an application is made by the aggrieved party to the relevant institution of the Community”. The Court has decided to give judgment on the preliminary objection without considering the substance of the cases.

3. The defendants plead that the actions are inadmissible because the applicants were out of time in submitting to the Commission their applications for payment of the refunds in respect of the period from 1 August or 1 September 1975 to 19 October 1977. Those applications were submitted to the Commission on 18 August 1980 by Birra Wührer SpA (Case 256/80), on 15 March 1980 by Mangimi Niccolai SpA (Case 257/80), on 27 March 1980 by De Franceschi Marino & Figli SpA (Case 265/80), on 8 August 1980 by Riseria Modenese Srl (Case 267/80) and on 2 September 1980 by Riserie Angelo e Giacomo Roncaia (Case 5/81).

4. The defendants contend that the commencement of the period of limitation laid down by Article 43 of the Statute of the Court must be taken as being the moment when it becomes possible to institute proceedings in matters arising from liability and that, moreover, according to the case-law of the Court such proceedings may be instituted when the damage may be considered to be imminent and foreseeable with sufficient certainty even though it cannot be precisely quantified except as the result of assessment at a later stage.

5. According to the defendants the commencement of the five-year period of limitation must be 20 March 1975, the date of publication of Regulations Nos 665 and 668/75 of 4 March 1975, which the Court in its judgments of 19 October 1977 in Joined Cases 124/76 and 20/77 held to be invalid.

6. It follows, in the defendants' view, that the applicants could have brought their actions as from 20 March 1975 since the publication of the unlawful regulations which were at the origin of the damage sustained by the applicants may be considered as the event giving rise to the Community's liability and should therefore constitute the commencement of the five-year period of limitation laid down by Article 43 of the Statute of the Court.

7. According to the defendants the applications sent to the Commission could not interrupt the five-year period of limitation because they were submitted after the expiry of that period, whilst those sent to the Italian national authorities on 8 and 19 November 1979 did not interrupt the period because they were made to authorities which were not “relevant” within the meaning of Article 43 of the Statute of the Court and were not followed by proceedings instituted by the applicants in conformity with the conditions laid down in the second paragraph of Article 175 of the EEC Treaty.

8. The applicants' argument is essentially to the effect that the commencement of the five-year period of limitation in relation to matters arising from the non-contractual liability of the Community can only be the moment when, in cases such as the present, the damage has in fact become apparent, that is to say, the date on which the refunds, became payable as the result of transactions creating an entitlement to them.

9. As is apparent from Article 215 of the EEC Treaty and Article 43 of the Statute of the Court, the involvement of the non-contractual liability of the Community and the assertion of the right to compensation for damage suffered depend on the satisfaction of a number of requirements relating to the existence of an unlawful measure adopted by the Community institutions, actual damage and a causal relationship between them.

10. The period of limitation which applies to proceedings in matters arising from the non-contractual liability of the Community therefore cannot begin before all the requirements governing an obligation to provide compensation for damage are satisfied and in particular before the damage to be made good has materialized. Accordingly, since the situations concerned are those in which the liability of the Community has its origin in a legislative measure, the period of limitation cannot begin before the injurious effects of that measure have been produced, and consequently, in the circumstances of these cases, before the time at which the applicants after completing the transactions entitling them to the refunds, were bound to incur damage which was certain in character.

11. Accordingly, it may not be claimed, as against the applicants, that the period of limitation began before the date on which the injurious effects of the unlawful measures adopted by the Community were produced.

12. It follows from this, moreover, that the commencement of the period of limitation cannot be the date on which the unlawful measures adopted by the Community entered into force or, a fortiori, the date of their publication.

13. The preliminary objection raised by the Council and the Commission must therefore be dismissed.

On those grounds, THE COURT, by way of interlocutory decision, hereby:

1 Dismisses the objections;

2 Reserves the costs.