Report for the Hearing delivered in Case 50/86

I — B>The relevant regulations

Article 11 (1) of Regulation No 120/67 of the Council states that a production refund is to be granted:

‘(a) for maize and common wheat used by the starch industry for the manufacture of starch and quellmehl; (b) for potato starch; (c) for maize used in the maize industry for the manufacture of maize groats and meal (gritz) used by the brewing industry.’

Owing to the need for the starch industry to maintain competitive prices in relation to the prices of substitute products, the Council considered it necessary to ensure that the basic products used by that industry were, by means of a production refund, made available to it at a price lower than that resulting from the application of the system of levies and common prices. For similar reasons and owing to the interchangeability of starches on the one hand and quellmehl and maize groats and meal on the other hand, the Council considered that a production refund should also be granted on the latter products.

Pursuant to Regulation No 120/67 cited above, Regulations Nos 367/67 and 371/67 of the Council fixed the production refunds on respectively maize groats and meal used in the brewing industry and starches and quellmehl. The rules now in force are those laid down by Regulations Nos 2727/75 and 2742/75, as amended by Regulations Nos 1006/86 to 1009/86.

Refunds on maize and common wheat used for the manufacture of quellmehl were abolished with effect from 1 August 1974 by Regulation No 1125/74 of the Council. Refunds on maize used for the manufacture of maize gritz used in the brewing industry were also abolished with effect from 1 August 1975 by Regulation No 665/75 of the Council. However, production refunds on maize and common wheat used in the manufacture of starch were maintained.

In a preliminary ruling of 19 October 1977 in Joined Cases 124/76 and 20/77 Moulins et Huileries de Pont-à-Mousson v Office national interprofessionnel des céréales [1977] ECR 1795, the Court found that maize groats and meal were in a comparable situation to maize starch and ruled that the abolition of the refund on maize used in the manufacture of maize groats and meal, together with the maintenance of the refund on maize used in the manufacture of starch, was incompatible with the principle of equal treatment.

Similarly, in a preliminary ruling of 19 October 1977 in Joined Cases 117/76 and 16/77 Albert Ruckdeschel & Co. and Another v Hauptzollamt Hamburg-St. Annen [1977] ECR 1753, the Court, after finding that quellmehl and starch were in comparable situations, ruled that the abolition of the refund on maize used in the manufacture of quellmehl, together with the maintenance of the refund on maize used in the manufacture of starch, was incompatible with the principle of equal treatment.

Council Regulation No 1125/78 then reintroduced, until the end of the marketing year 1978/79, a system of refunds for maize used for the manufacture of maize groats and meal (gritz) used by the brewing industry and for maize and common wheat used for the manufacture of quellmehl intended for baking. The first recital in the preamble to the regulation states that ‘starch may be in direct competition with quellmehl used in baking or with maize groats and meal used in brewing’.

In the fourth recital it was stated that, pending the outcome of the general examination of the system of production refunds in the starch sector, it was desirable that production refunds for products intended for the brewing of beer and for the manufacture of quellmehl for baking be granted for a limited period only.

In judgments of 4 October 1979 in Joined Cases 241, 242, and 245 to 250/78 Deutsche Getreideverwertung and Others v Council and Commission [1979] ECR 3017, and in Joined Cases 261 and 262/78 Interquell Stärke-Chemie GmbH & Co. KG and Another v Council and Commission [1979] ECR 3045, the Court decided that the Community had incurred liability by reason of the discriminatory abolition of refunds on quellmehl and maize gritz by Regulations Nos 1125/74 and 665/76. In the circumstances of those cases the Court was led to the conclusion that there was on the part of the Council a grave and manifest disregard of the limits on the exercise of its discretionary powers in matters of the common agricultural policy.

The sytem of production refunds was substantially altered as from 1 July 1986 by Regulations Nos 1006/86 to 1009/86, cited above: the changes essentially consisted in the abolition of the refunds on starch obtained from maize, wheat or rice and potato starch used in the manufacture of products whose constituents are protected under the common agricultural policy as well as on gritz and broken rice used in brewing and quellmehl used in baking, and in the grant of that refund only for starches used in the manufacture of products other than food products (chemical, textile, paper and biotechnological industries). To facilitate adjustment to the new situation, the new provisions progressively reduce the production refunds on products for the food industry over a period of three years.

The aim of the new rules is therefore essentially to offer advantages only to the industries using starch for the manufacture of products not covered by the common agricultural policy by allowing them to obtain supplies of Community starch at prices which are competitive with those in nonmember countries.

II — The facts

Since 1969 the applicant has manufactured a new product called ‘Granidon’ derived from common-wheat flour in granulated form obtained by drying through a centrifuging process and then granulation. In 1967, when production refunds were introduced, Granidon still did not exist. Granidon has never benefited from refunds which are, however, granted in respect of traditional products used in brewing (starch, maize gritz), despite requests made by the applicant to the national authorities and then to the Commission.

The first request for the payment of a refund which the applicant sent to the French authorities in 1969 was refused on the ground that common-wheat flour used for the manufacture of products intended to be used in the brewing industry was not covered by Regulation No 367/67 (maize groats and meal and broken rice used in the brewing industry) or by Regulation No 371/67 (starches and quellmehl). Nevertheless, the French authorities proposed to draw the Commission's attention to the advantages of including the applicant's products in Regulation No 367/67 in order to enable a balance to be established between the supply prices of the various raw materials used in the brewing industry.

A memorandum of 2 March 1970 prepared by the Office national interprofessionnel des céréales envisaged a request to amend the Community regulations in two possible ways:

i) a request for Granidon to be included in the exhaustive list of products laid down in Regulation No 367/67 (broken rice and gritz), Granidon to be presented as a specific product, irrespective of its character, contested or otherwise, of starch;

ii) a request for Granidon to be included in the general scheme for starch products established by Regulation No 371/67 (starches and quellmehl). In its memorandum the Office national interprofessionnel des céréales pointed out, however, that the main difficulty in submitting such a request resided in the position adopted by the laboratory of the Ministry of Finance which reached a finding that it was impossible to treat Granidon as a flour because it was too rich in starch or as a starch because it was too rich in protein. The Office national interprofessionnel des céréales pointed out that the refund provided for in Regulation No 371/67 is granted only restricitively for the production of chemically pure starch, the one exception being, however, for quellmehl. It therefore proposed to request the Commission to establish a new exception for Granidon.

However, by a letter of 9 August 1971 the Ministry of Agriculture informed the applicant that a request by France for Granidon to be admitted to the refund scheme applicable to meal would have no chance of acceptance in view of the negotiations in progress on the proposed regulation to abolish the refunds in question and a draft directive concerning the harmonization of the regulations on the manufacture and marketing of beer. The Ministry stated that the request should be submitted only if an agreement on both proposals proved impossible or too remote.

When subsequently neither the draft regulation nor the draft harmonizing directive produced any agreement, the society Les Grands Moulins de Paris sent several letters to the Ministry of Agriculture which were to no avail in the absence of Community provisions allowing refunds to be granted.

The applicant submitted a request to the Commission for the regulations in force to be amended in order to enable Granidon to be given a new customs classification and become eligible for a production refund.

The Commission replied that it did not seem likely that Granidon could be treated as a product covered by the rules for starches and it referred to its position regarding the abolition of the production refund on the products in question intended for use in the food industry and more particularly to the proposals being adopted in the Council.

III — Written procedure and conclusions of the parties

By an application registered at the Court of Justice on 20 February 1986, the society Les Grands Moulins de Paris brought this action for damages.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without a preparatory inquiry. However, it invited the parties to furnish, before 14 August 1987, the information set out below.

By decision of 17 June 1987 pursuant to Article 95 (1) and (2) of the Rules of Procedure, the Court assigned the case to the Second Chamber.

The applicant claims that the Court should:

i) declare its application for an award of damages amounting to FF 6302224.48 admissible;

ii) declare the European Economic Community liable under Articles 178 and 215 of the EEC Treaty for the damage suffered by it as a result of the failure of the Community institutions to grant in respect of Granidon manufactured by it the production refund provided for in the case of substitutable products;

iii) accordingly, order the European Economic Community to pay it the sum of FF 6302224.48 together with interest calculated from the day on which the application was lodged;

iv) order the European Economic Community to pay the costs.

The Council contends that the Court should:

i) dismiss the application in so far as it is wrongly directed against it;

ii) reserve the costs at this stage of the proceedings.

The Commission contends that the Court should:

i) dismiss the application as unfounded;

ii) order the applicant to pay the costs.

IV — Submissions and arguments of the parties

A — Admissibility

In the applicant's view, a misuse of procedure may not be raised in objection to the admissibility of its action inasmuch as the applicant is seeking to obtain, through an action for damages, the same results as would be obtained from an action for failure to act, without having to comply with the restrictive conditions applying to such an action. According to established case-law, the action for damages was established as an autonomous form of action with a particular purpose to fulfil within the system of actions and the exercise of it is subject to conditions imposed in view of the specific objective thereof.

Nor can it be objected to the admissibility of the action that the applicant ought first to have exhausted national remedies (see the judgment of the Court of 24 October 1973 in Case 43/72 Merkur Außenhandels-GmbH v Commission [1973] ECR 1055). The applicant also points out that no national remedy was open to it. In the absence of Community provisions putting Granidon on the list of products eligible for a production refund, no effective application could have been made to national courts for their payment. No reference under Article 177 could have been made to the Court of Justice by a national court since the Court of Justice could not take the place of the Community legislature. No objection of inadmissibility may be based on the applicant's failure to avail itself of a form of action in the national courts which was not open to it (see the judgment of the Court of 17 December 1981 in Joined Cases 197 to 200, 243, 245 and 247/80 Ludwigsha/ener Walzmühle Erling KG v Council and Commission [1981] ECR 3211).

Without disregarding the principle laid down by the Court that the action for damages is an autonomous action, the Commission states that the applicant could certainly have made an application to a French administrative court challenging a decision of the national administration refusing to grant it the production refund and requested that court to ask the Court of Justice for a preliminary ruling on the validity of the Community provisions making no provision for the grant of refunds on the product in question.

On the purely hypothetical assumption that it had to be declared invalid, such a finding could therefore have been made much earlier and thus reduced the loss allegedly suffered by the applicant and even prevent part of it, namely its ‘commercial loss’ (which the Commission maintains is not liable to compensation).

The Commission recognizes, however, that such a question is related more to the substance of the case than to the question of admissibility properly so-called in so far as it is related to the applicant's lack of diligence in reducing any damaging effects of the defendant's action. It therefore leaves this point to the Court to decide as it thinks fit.

In its reply the applicant states that it is difficult to see the basis on which the Court could have declared the Community regulations unlawful for omitting to provide for a production refund on a product still not classified for customs tariff purposes and still not forming part of the common organization of the market in cereals.

Secondly, taking the Commission's argument to its conclusion and assuming that the Court found the regulations in question unlawful, neither the Court nor the administrative court dealing with the substance of the case could have taken the place of the Community legislature which is the only institution able to make Granidon eligible for a production refund. The applicant therefore concludes that no other remedy than this action was open to it.

The Commission states in its rejoinder that, as the applicant itself considers, the validity of the Community regulations whose ‘omissions’ caused it injury is beyond question. It is therefore difficult to see how the Community may incur liability for not having reformed regulations which were not unlawful in any way.

This is precisely the line adopted by the defendant in its argument regarding the substance.

The Council considers that the action is wrongly directed against it: the possible cause of liability is the non-inclusion of Granidon among the products eligible for refunds. However, the Commission has never submitted a proposal to include Granidon amongst those products to the Council. It has never therefore been in a position to take a decision allowing refunds to be granted for Granidon. In the present case, only the Commission should represent the Community before the Court.

B — Substance

1. Liability of the Community

The applicant claims that the Community institutions incurred liability towards it in not allowing production refunds to be granted on Granidon although such refunds are granted on the traditional products used in brewing.

(a) The characteristics of Granidon

The applicant describes Granidon as natural crude starch of common wheat obtained by drying by means of a centrifuging and granulation process. According to the applicant, the particular feature of Granidon is that it contains approximately 85% starch whereas the usual percentage for flour is approximately 75%. In addition, its protein content is low. Its manufacture requires special, expensive plant. The applicant refers to extracts from articles showing that the use of wheat-flour in brewing requires the setting up of specific processes.

The Commission states that the name Granidon chosen by the applicant is a designation sui generis which does not correspond to any generally recognized category. The Commission considers Granidon to be a product related to other products, namely high-protein flour, and at the same time a ‘preliminary’ starch product. Purifying Granidon of proteins still present at that stage necessarily leads to the production of starch which qualifies for production refunds under the old regulations and during the transitional period provided for in the regulations which entered into force in 1986.

Although, according to certain articles quoted by the applicant, products derived from wheat-flour seem to be in general use in the United Kingdom, those products are obtained without the granulation stage. Moreover, the Commission has never received an application for a production refund for such products.

(b) Substitutability of Granidon

The applicant states that Granidon is substitutable for the products traditionally used in brewing on which production refunds have been granted (starch, maize, gritz). Brewers consider Granidon to be an excellent substitute for starch and meal. Derivatives of wheat-flour are in general use in brewing in competition with other products.

After lodging its reply, the applicant has produced a document showing that the Office national interprofessionnel des céréales grants refunds on the production of wheat starch obtained by drying although it refuses to grant the applicant refunds on Granidon on the grounds that wheat starch obtained by drying is not covered by any Community regulations.

The Commission maintains that it has by no means been proved that Granidon is substitutable for products used in the brewing industry and attracting production refunds and that the manufacturing process is different. In any event, the question of the substitutability of Granidon with the products commonly used in brewing must be examined by an expert.

The Commission does not see how the grant by the Office national interprofessionnel des céréales of refunds on wheat starch obtained by drying — a manufacturing process which is therefore akin to that used for Granidon — could be taken into consideration for the purposes of the dispute since it is common ground that Granidon cannot be regarded as wheat starch and consequently its production does not attract a refund.

(c) Wrongful breach of the general principle of equal treatment

The applicant claims that in not including Granidon amongst the products attracting a production refund the Council and the Commission infringed the general principle of equal treatment laid down in the second subparagraph of Article 40 (3) of the EEC Treaty, which the Court has always applied in finding unlawful any discrimination between producers of the same product or substitutable products in comparable situations.

The reason given for the introduction of production refunds on starch by Regulation No 120/67 of the Council was that the starch industry had to remain competitive in the face of substitute chemical products manufactured on the world market at lower prices. The reason for the extension of the refunds to quellmehl and maize groats and meal was the possibility of substituting starch for quellmehl and maize groats and meal.

However, despite the applicant's requests, the production refunds provided for in respect of substitute products used in the brewing industry were not granted on Granidon. A comparison of the cost prices of Granidon and maize gritz shows that the price difference, taking into account the production refund, could be reckoned at approximately 10%. The manufacturers of the other products therefore enjoy an incontestable advantage over the applicant. Without production refunds, the price of Granidon does not allow it to compete with starch and maize groats used in brewing. Given the difference in procurement costs, buyers chose in preference the traditional products.

The difference in treatment between Granidon and other substitutable products is not objectively justified having regard to the link which the Community provisions on production refunds have clearly established between product substitutability and the necessary balance between their prices vis-à-vis users.

Nor can objective circumstances be relied upon as justification for not granting production refunds on Granidon, especially since Granidon is made from wheat which is produced in surplus in the Community whereas there is a shortfall in maize, the basic product from which maize starch and gritz is obtained. It therefore appears that the Council and the Commission arbitrarily decided, despite the applicant's requests, not to grant in respect of Granidon the production refunds provided for in respect of the substitutable products used in the brewing industry.

Consequently, the Community institutions have, in the applicant's view, clearly infringed a higher-ranking rule of law for the protection of individuals and manifestly and gravely disregarded the limits on the exercise of their powers. It follows that they must be considered to have incurred liability for that failure to act.

The Commission states that all its actions have tended towards abolishing refunds on all the products which are possibly interchangeable with Granidon. Generally, the Commission takes the view that the prohibition of discrimination laid down in Article 40 (3) of the EEC Treaty cannot be construed as requiring the Community authorities to guarantee that any agricultural product which can be put to certain uses should receive identical treatment to that of other products which may be put to the same use, irrespective of their economic importance and their market position and having regard to the aims of the common agricultural policy. Furthermore, that provision cannot be construed as requiring such equal treatment for any new product.

In the Commission's view, the applicant cannot claim that regulations which do not take special account of a specific product which is manufactured by a single undertaking in the Community and which is marketed in relatively negligible quantitites are discriminatory in the full knowledge that it had every possibility of diverting its production to other products, in particular one of the products attracting the desired refunds.

The unlawfulness of a legislative measure, assuming that it is proved in this case, does not necessarily afford a right to damages. Only a very serious and inexcusable omission creates a right to damages. Besides the hypothetical misuse of power, only a manifest and particularly grave error of law or fact may cause the Community to incur liability.

The Commission maintains that it cannot be charged with having manifestly and gravely exceeded the limits of its powers in not submitting to the Council a proposal to include the product Granidon in the list of products eligible for the production refunds since, as far as the period in question is concerned, the first request to that effect, which, moreover, was not very detailed, was made by the applicant on 22 October 1984, that is to say at the very moment when it was formally adopting its proposals to abolish the refunds completely for all the products intended to be used exclusively in foodstuffs and for starch used for the same purpose.

The same argument applies a fortiori to the applicant's reasoned request made on 13 December 1985 in which it first claimed a right to compensation at the time when the Council's adoption of the new regulations was imminent.

In any event, any right to compensation could not have arisen in the applicant's case before the defendant had received that request.

2. The damage allegedly suffered by the applicant

The applicant claims that as a result of the Community institutions' failure to act it suffered direct and serious injury for which they must pay compensation.

(a) Elements of damage

According to the applicant, the damage consists first of all in the fact that, owing to the discrimination to which Granidon is subject, it has not had the commercial growth which it could legitimately have expected.

Economic studies carried out by the applicant show that, if Granidon had been eligible for a production refund which would have made it competitive with interchangeable products, it could have captured an estimated market share of 10% and annual deliveries could have reached 12000 tonnes. According to the applicant, that marketing hypothesis is very conservative and incontestably shows a ‘substantial character capable of giving rise to compensation for loss of profits’, the words used in the judgment of the Court of 14 July 1967 in Joined Cases 5, 7 and 13 to 24/66 Kampffmeyer and Others v Commission [1967] ECR 245.

Secondly, the damage allegedly arose as a result of the fact that the quantities of Granidon actually sold after 1983 should have attracted production refunds if the general principle of equal treatment had been respected by the institutions.

The damage suffered by the applicant stems from the fact that the Community institutions did not provide for the payment of production refunds on Granidon and consequently from the nonpayment of such production refunds. The applicant has calculated the exact amount by taking the production refunds for wheat and applying a wheat-flour coefficient.

Finally, the applicant claims that it suffered damage arising from the fact that costs directly related to the production of Granidon could not be paid off because of the poor sales of Granidon which were the result of the absence of production refunds.

The Commission takes the view that the applicant has not proved that the alleged damage was actually suffered: the allegation of commercial loss is based on an estimate which has not been proven. It has not been established that Granidon could have reached the level of marketing estimated by the applicant even if it had attracted production refunds. As regards the costs directly related to the production of Granidon, these are included under the head of ‘commercial loss’ and should have been set out by the applicant even if Granidon had attracted refunds.

(b) Nature of the damage

The applicant points out first of all that it is the only undertaking producing Granidon in France. The disregard of the principle of equal treatment by the Community institutions has affected it as a single undertaking. That is a factor to which the Court has given particular importance in its decisions, in particular in the ‘quellmehl’ and ‘maize gritz’ judgments.

It should also be pointed out that the extent of the damage suffered by the applicant, in particular commercial damage, exceeds what the Court describes in its decisions as ‘the limits of the economic risks inherent in the activities in the sector concerned’.

The fact that one undertaking is making a profit does not exclude the possibility that another is making a loss and suffering serious damage as a result of unlawful action on the part of the Community.

According to the Commission, the requirements that an undertaking must be individually affected and that the damage must be serious are not fulfilled in the applicant's case: for compensation to be payable, the damage must exceed the limits of the economic risks inherent in the activities in the sector concerned. Those considerations apply a fortiori where the regulations in force have no provisions in favour of a particular product since that situation, unlike the situation in which existing refunds are abolished, excludes the very concept of economic risk occasioned by a legislative act.

Moreover, the fact that the damage allegedly suffered is not serious is clear from a comparison of the applicant's total production with the relatively insignificant quantities of Granidon which have been marketed. The question whether damage is particularly serious can be resolved only in the light of the applicant's particular situation and not in abstracto. However, the applicant does not dispute that its situation has not been affected by the losses made on sales of Granidon.

3. Causal link

The applicant contends that the damage which it suffered arises directly and unquestionably from the failure of the Community institutions to make provision for Granidon to attract the production refunds granted on starch, maize, gritz and broken rice used in the brewing industry.

As regards the damage arising from the absence of production refunds on Granidon, the causal link with the Community's failure to make provision for refunds is direct and unquestionable. As regards commercial loss, it is clear from the documents provided by the applicant that the poor commercial growth of Granidon is due to its high cost compared with the products used in the brewing industry.

The Commission contends that the applicant cannot establish that an unquestionable link exists between the losses on sales of Granidon and the absence of production refunds. There is clearly no causal link. The applicant's situation with regard to the production of Granidon has arisen entirely from its economic decisions; at no time could the Commission's action give the impression that it intended to extend or propose to extend the list of products attracting a refund to include Granidon. The applicant therefore took a calculated economic risk in the full knowledge of the facts. The Commission points out that when ruling on the financial consequences of the finding that the abolition of the production refund on gritz was invalid, the Court excluded from compensation any undertaking which had started to produce gritz at a time considerably after the abolition of the refunds.

V — Answers to questions asked by the Court

The Court requested the Commission to answer the following questions:

1) What are the technical characteristics required of a product in order for it to be classified as ‘wheat starch’ attracting the production refund? Is there a statutory definition of that classification? If so, what is it?

2) Is the Commission able to confirm that before 1984 it did not receive any formal request from the applicant or the national authorities for production refunds to be granted on Granidon?

1. The Commission replies that the Community regulations relating to the common organization of the markets in cereals in force at the material time do not contain a precise definition of wheat starch or of maize starch or rice starch. It is simply stated, as regards wheat starch, that it is ‘starch of common wheat’. Only in Commission Regulation (EEC) No 2169/86 of 10 July 1986 laying down detailed rules for the control and payment of the production refunds in the cereals and rice sectors, implementing the new system which entered into force on 1 September 1986, is the following definition given: Amongst the basic starches the Annex defines ‘wheat starch’ in Part A. Ill by reference to the Common Customs Tariff heading 11.08. It is also stated that ‘the purity of starch in the dry matter shall in all cases be at least 97%’. The Explanatory Notes on the Common Customs Tariff give a definition of the products classified under tariff heading 11.08, in particular of starches. Starches must be ‘bright, white, odourless powders composed of extremely fine grains of different shapes and sizes which crackle when rubbed between the fingers. They give a characteristic vivid blue colouration with iodine’. From the available information, essentially that provided by the applicant, it does not appear that Granidon has those characteristics, if only because it is granulated and is richer in protein than starch of which it contains only 85%. The Working Group ‘Terminology’ of the Technical Committee ‘Starch, including derivatives and byproducts’ of the International Standardization Organization (ISO) has defined wheat starch as follows: The Commission points out with regard to this definition that Granidon is obtained by drying. The European Pharmacopoeia, published under the direction of the Council of Europe, also gives a definition of wheat starch.

‘For the purposes of this regulation the following definitions shall apply:

“starch” shall mean basic starch or a product derived from starch as listed in the Annex’ (Article 1).

‘(a) Starch from various species of the genus Triticum linnaeus.

b) Industrial product corresponding to (a) obtained by wet milling of certain species of the genus Triticum linnaeus.’

2. To the second question the Commission replies that its officials have not found any trace of a formal request from the applicant or the national authorities for production refunds to be granted on Granidon or even any correspondence on this matter prior to the applicant's letter of 22 October 1984 with the sole exception of the letter of 14 June 1973 sent by the Directeur adjoint de l'exploitation (Mr Lucien Pergeline) of the society Les Grands Moulins de Paris to the Directorate-General for Agriculture contained in Annex 7 (pages 9 to 11) to the application. The Court requested the applicant to supply the following documents and information: (1) All the correspondence from the brewing undertakings with which it was in contact and from which it appears that the cost of obtaining Granidon dissuaded those undertakings from buying Granidon and caused them to prefer the traditional products to Granidon; (2) The quantities of Granidon produced and marketed by the company since 1969. 1. The applicant replies that there is no correspondence as such with the breweries but other documents exist showing that Granidon is not competitive with the substitute products for reasons of price. It produces a letter from a brewing specialist to a northern brewery and an internal memorandum which relates to that letter and mentions the need to clear up the administrative problems, which, according to the applicant, concern the refund. The applicant also produces a number of reports drawn up by its employees following visits to breweries. 2. In reply to the second question the applicant states that it no longer has any statistics concerning the quantities of Granidon produced and marketed since 1969. In any event, the quantities involved were small quantities produced for experimental purposes. The applicant appends to its answer a summary of deliveries of Granidon to breweries since July 1983.

T. F. O'Higgins

Judge-Rapporteur

1 Language of the Case: French.

2 Official Journal, English Special Edition 1967, p. 33.

3 Official Journal, English Special Edition 1967, pp. 216 and 219.

4 Official Journal L 281, 1.11.1975, p. 1.

5 Ibid., p. 57.

6 Official Journal L 94, 9.3.1986, pp. 1-6.

7 Official Journal L 128, 10.5.1974, p. 12.

8 Official Journal L 72, 20.3.1975, p. 14.

9 Official Journal L 142, 30.5.1978, p. 21.