JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

4 February 1998 (1)

(Action for damages — Non-contractual liability — Milk — Additional levy —Reference quantity — Conversion undertaking — Forced sale of holding —Damage — Causal link — Limitation period)

In Case T-246/93,

Günther Bühring, residing at Elsfleth (Germany), represented by HagenLichtenberg, Bergiusstraße 11, Bremen (Germany),

applicant,

v

Council of the European Union, represented by Arthur Brautigam, Legal Adviser,acting as Agent, assisted by Hans-Jürgen Rabe and Georg M. Berrisch,Rechtsanwälte, Hamburg, and members of the Brussels Bar, with an address forservice in Luxembourg at the office of Alessandro Morbilli, Manager of the LegalAffairs Directorate of the European Investment Bank, 100 Boulevard KonradAdenauer,

and

Commission of the European Communities, represented by Dierk Booß, of itsLegal Service, acting as Agent, assisted by Hans-Jürgen Rabe and Georg

M. Berrisch, Rechtsanwälte, Hamburg, and members of the Brussels Bar, with anaddress for service in Luxembourg at the office of Carlos Gómez de la Cruz, of itsLegal Service, Wagner Centre, Kirchberg,

defendants,

APPLICATION pursuant to Article 178 and the second paragraph of Article 215of the EEC Treaty for compensation for the losses sustained by the applicant asa result of the application of Council Regulation (EEC) No 857/84 of 31 March1984 adopting general rules for the application of the levy referred to in Article 5cof Regulation (EEC) No 804/68 in the milk and milk products sector (OJ 1984L 90, p. 13), as supplemented by Commission Regulation (EEC) No 1371/84 of16 May 1984 (OJ 1984 L 132, p. 11),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (First Chamber),

composed of: A. Saggio, President, V. Tiili and R.M. Moura Ramos, Judges,

Registrar: A. Mair, Administrator,

having regard to the written procedure and further to the hearing on 25 June 1997,

gives the following

Judgment

1.

    In 1977, in order to reduce surplus milk production in the Community, the Counciladopted Regulation (EEC) No 1078/77 of 17 May 1977 introducing a system ofpremiums for the non-marketing of milk and milk products and for the conversionof dairy herds (OJ 1977 L 131, p. 1, hereinafter 'Regulation No 1078/77‘). Underthat regulation producers were given the opportunity of entering into anundertaking not to market milk or to convert their herds for five years in return forpayment of a premium.

2.

    In 1984, in order to cope with persistent overproduction, the Council adoptedRegulation (EEC) No 856/84 of 31 March 1984 (OJ 1984 L 90, p. 10), amendingRegulation (EEC) No 804/68 of the Council of 27 June 1968 establishing acommon organisation of the market in milk and milk products (OJ, English SpecialEdition 1968(I), p. 176). The new Article 5c of the latter regulation introduced an'additional levy‘ on milk delivered by producers in excess of a 'referencequantity‘.

3.

    Council Regulation (EEC) No 857/84 of 31 March 1984 adopting general rules forthe application of the levy referred to in Article 5c of Regulation No 804/68 in themilk and milk products sector (OJ 1984 L 90, p. 13, hereinafter 'RegulationNo 857/84‘) fixed the reference quantity for each producer on the basis ofproduction delivered during a reference year, namely the 1981 calendar year,subject to the Member States' opting for the 1982 or 1983 calendar year. Thatregulation was supplemented by Commission Regulation (EEC) No 1371/84 of16 May 1984 laying down detailed rules for the application of the additional levyreferred to in Article 5c of Regulation No 804/68 (OJ 1984 L 132, p. 11, hereinafter'Regulation No 1371/84‘).

4.

    By judgments of 28 April 1988 in Case 120/86 Mulder v Minister van Landbouw enVisserij [1988] ECR 2321 (hereinafter 'Mulder I‘) and Case 170/86 von Deetzen vHauptzollamt Hamburg-Jonas [1988] ECR 2355, the Court of Justice declaredRegulation No 857/84, as supplemented by Regulation No 1371/84, invalid on theground that it infringed the principle of protection of legitimate expectations.

5.

    In order to comply with those judgments, the Council adopted Regulation (EEC)No 764/89 of 20 March 1989 amending Regulation No 857/84 adopting generalrules for the application of the levy referred to in Article 5c of RegulationNo 804/68 in the milk and milk products sector (OJ 1989 L 84, p. 2, hereinafter'Regulation No 764/89‘). Pursuant to that amending regulation, producers whohad entered into non-marketing or conversion undertakings received a referencequantity known as a 'special‘ reference quantity (or 'quota‘).

6.

    In the meantime, one of the producers who had brought the action which had ledto Regulation No 857/84 being declared invalid had, with other producers, institutedproceedings against the Council and the Commission in which they soughtcompensation for the losses which they had sustained on account of their nothaving been granted a reference quantity under that regulation.

7.

    By judgment of 19 May 1992 in Joined Cases C-104/89 and C-37/90 Mulder vCouncil and Commission [1992] ECR I-3061 (hereinafter 'Mulder II‘), the Courtof Justice held that the Community was liable for the damage in question. It gavethe parties one year in which to reach agreement on the amount of compensation. When the parties failed to come to an agreement, the proceedings were reopenedin order to enable the Court of Justice to lay down the criteria for quantifying theloss in a judgment which would bring the proceedings to a close.

8.

    In view of the large number of producers affected and the difficulty in negotiatingindividual settlements, the Council and the Commission published Communication92/C 198/04 on 5 August 1992 (OJ 1992 C 198, p. 4, hereinafter 'theCommunication‘ or 'the Communication of 5 August‘). After setting out theimplications of the judgment in Mulder II, the institutions stated their intention toadopt practical arrangements for compensating the producers concerned in order

to give full effect to that judgment. Until such time as those arrangements wereadopted, the institutions undertook not to plead against any producer entitled tocompensation that entitlement to claim was barred by lapse of time underArticle 43 of the EEC Statute of the Court of Justice (hereinafter 'the Statute‘). However, that undertaking was made subject to the proviso that entitlement tocompensation had not already been barred through lapse of time on the date ofpublication of the Communication or on the date on which the producer hadapplied to one of the institutions. Lastly, the institutions assured producers that thefact that they did not make an approach to them as from the date of theCommunication and until such time as the practical arrangements for compensationwere adopted would not adversely affect them.

Background to the dispute

9.

    On 30 September 1979 the applicant, a milk producer in Germany, entered into anundertaking to convert his cattle herd pursuant to Regulation No 1078/77.

10.

    The applicant's undertaking, which came to an end on 29 March 1984, covered thereference year adopted under Regulation No 857/84. Since he had produced nomilk in that year, the applicant was ineligible for a reference quantity and, as aresult, unable to market any quantity of milk exempt from additional levy.

11.

    The applicant was indebted to a number of banks; he was unsuccessful indischarging his liabilities, and on 25 March 1986 his creditors proceeded with theforced sale of his holding.

12.

    On 26 June 1989, following the entry into force of Regulation No 764/89, theapplicant applied for a specific reference quantity. That application was rejectedby decision of the Weser-Ems Chamber of Agriculture of 28 June 1989, on theground that the applicant no longer had an agricultural holding. Following therejection on 3 December 1992 of an administrative complaint, an action wasbrought against that decision on 29 December 1992 before the Verwaltungsgericht(Administrative Court) Oldenburg.

13.

    The applicant also brought a claim for damages against the Weser-Ems Chamberof Agriculture, by which he sought compensation for the loss suffered as a resultof errors allegedly committed by an employee of that Chamber in the context ofregistration of his application for a conversion premium. After that action wasdeclared time-barred by the Landgericht (Regional Court) and theOberlandesgericht (Higher Regional Court) Oldenburg, the case was broughtbefore the Bundesgerichtshof (Federal Court of Justice).

14.

    Against that background, the applicant brought the present proceedings underArticles 178 and 215 of the EEC Treaty, seeking compensation for the damage

suffered as a result of the fact that no provision was made by Regulation No 857/84for the grant of a reference quantity to producers in his situation.

Procedure

15.

    The application was lodged at the Court of Justice on 30 April 1993. Byapplication lodged on the same day, the applicant applied for legal aid.

16.

    By decision of the Court of Justice of 14 September 1993 the proceedings werestayed pending delivery of final judgment in Mulder II (see paragraph 7 above).

17.

    By order of 27 September 1993 the Court of Justice referred the case to the Courtof First Instance pursuant to Article 3 of Council Decision 88/591/ECSC, EEC,Euratom of 24 October 1988 establishing a Court of First Instance of the EuropeanCommunities (OJ 1988 L 319, p. 1), as amended by Council Decision93/350/Euratom, ECSC, EEC of 8 June 1993 (OJ 1993 L 144, p. 21). The case wasregistered in the Court of First Instance under number T-246/93.

18.

    Following the adoption of measures of organisation of procedure in the milk quotacases, the Court of First Instance ordered the resumption of the procedure byorder of 14 September 1994.

19.

    The written procedure closed on 16 February 1995 with the lodging of therejoinder.

20.

    By order of 4 December 1995 the Court of First Instance granted the applicantlegal aid.

21.

    Upon hearing the report of the Judge-Rapporteur, the Court of First Instance(First Chamber) decided to open the oral procedure without any preparatorymeasures of inquiry. The parties presented oral argument at the hearing on25 June 1997.

Forms of order sought by the parties

22.

    The applicant claims that the Court should:

—    order the defendants to pay him compensation in the sum of DM 2 362 400,consisting of DM 1 500 000 for the loss of the holding as a result of itsforced sale, DM 504 000 for the loss of the profit which he could have madefrom leasing the reference quantity and DM 358 400 representing the valueof that reference quantity denied to him, together with interest at 8% perannum from delivery of the judgment;

—    order the defendants to pay the costs.

23.

    The Council and the Commission contend that the Court should:

—    dismiss the application as inadmissible;

—    alternatively, dismiss the application as unfounded;

—    order the applicant to pay the costs.

Admissibility

Lack of capacity to be sued

Arguments of the parties

24.

    The defendants observe that, as is apparent from the relevant case-law (JoinedCases 63/72 to 69/72 Werhahn v Council [1973] ECR 1229, paragraphs 6 to 8), itis only the Community which can be held liable and thus act as defendant in anaction based on Article 215 of the Treaty. Consequently, inasmuch as theapplication designates the Council and the Commission as defendants, the actionhas been brought against institutions which do not have the capacity to be sued.

25.

    The applicant has not replied to that plea of inadmissibility.

Findings of the Court

26.

    It is settled case-law that, where the liability of the Community is involved byreason of the act of one or more of its institutions, it is represented before theCommunity judicature by the institution or institutions which are alleged to beresponsible for the matter giving rise to liability. The fact that an action is broughtagainst the institutions and not specifically against the Community will not renderthe application inadmissible where it does not affect the rights of the defence(Werhahn v Council, cited above, paragraphs 7 and 8).

27.

    In the present case, the defendants have not alleged that their rights have beenaffected. The plea of inadmissibility must therefore be rejected.

Infringement of Article 44 of the Rules of Procedure

Arguments of the parties

28.

    The institutions maintain that the applicant is simultaneously claimingcompensation for the loss resulting from his own non-utilisation of a referencequantity and for the loss resulting from the non-utilisation of that quantity by

lessees. They contend that this amounts to an aggregation of two mutuallyexclusive heads of damage. Consequently, in so far as it relates to the value of thereference quantity denied to the applicant, the application contains no conclusivepleas in law and is inadmissible under Article 44 of the Rules of Procedure.

29.

    The applicant submits that a reference quantity awarded under RegulationNo 857/84 has an intrinsic economic value that is antecedent to its exploitationvalue and which does not cease to exist when it is temporarily exploited by a thirdparty. Since the applicant did not receive a reference quantity under thatregulation, the damage suffered by him is not restricted to the loss of earningsresulting from the non-exploitation of that reference quantity but also includes itsintrinsic value. At all events, the application contains all the requisite particularsrelating to that aspect of the loss suffered.

Findings of the Court

30.

    According to Article 44(1)(c) of the Rules of Procedure, an application must statethe subject-matter of the proceedings and must contain a summary of the pleas inlaw on which it is based.

31.

    The application in the present case fulfils the requirements of that provision.

32.

    In that document the applicant refers to Articles 178 and 215 of the Treaty asconstituting the legal basis for the application, clearly puts in issue the defendants'liability arising from the application of Regulation No 857/84, as supplemented byRegulation No 1371/84, sets out the facts of the case, specifies the three heads ofdamage for which he claims compensation, provides figures in respect of each ofthem and applies for an order requiring the defendants to pay the correspondingsums.

33.

    The question whether the applicant is entitled simultaneously to apply forcompensation for the loss arising from his own non-utilisation of a referencequantity and for the loss arising from the non-utilisation of that quantity by lesseesdoes not go to any issue of admissibility but to the substance of the case and must,if need be, be determined in the context of that matter.

34.

    In those circumstances, the objection of inadmissibility must be rejected.

Liability of the Community

Arguments of the parties

35.

    The applicant states that he is one of a group of farmers who have suffered lossas a result of the fact that Regulation No 857/84 did not provide for the allocation

of a reference quantity to farmers who, pursuant to undertakings given underRegulation No 1078/77, supplied no milk during the reference year. He claims thatthe facts of the case are therefore the same as those in Mulder II and that thedefendants are liable for the damage caused.

36.

    The applicant maintains that the forced sale of his holding did not result from anyover-indebtedness or mismanagement on his part. He states that his holding wasperfectly viable at the time when the conversion undertaking expired. Relying oninspection reports of the Weser-Ems Chamber of Agriculture and of the LowerSaxony Agricultural Federation, he maintains that he could have resumed milkproduction. He acknowledges that he was driven into debt as a result of the losseswhich he suffered following submission of his application for a conversion premium,but considers that responsibility for those losses lies with the defendants themselvesin the context of the implementation of Regulation No 1078/77.

37.

    Consequently, there is a sufficient causal link between the non-allocation of areference quantity and the forced sale of the applicant's holding. A referencequantity was an essential prerequisite for the continued operation of the holding,and the absence of such a quantity meant that the holding ceased to have anyraison d'être.

38.

    The defendants contest the applicant's claims.

39.

    As regards the damage relating to the loss of the holding in consequence of its saleby auction, they maintain that the criteria laid down in the second paragraph ofArticle 215 of the Treaty are not fulfilled. Responsibility for that damage lies withthe applicant alone; in any event, there is no causal link in the present casebetween Regulation No 857/84 and the loss to which it allegedly gave rise, asrequired by the relevant case-law.

40.

    The forced sale of the farm was brought about solely by the economic decisionswhich the applicant took in 1979. By the beginning of 1984, he was so heavilyindebted that he could not possibly have made the investments needed in order toresume production on the holding. That conclusion is confirmed by the decisionof the Amtsgericht (District Court) Brake of 16 May 1986 ordering that it be soldby auction, from which it is apparent that the applicant's debts were not coveredby the value in 1984 of the items listed in the inventory of the assets of the holding.

41.

    In those circumstances, the applicant's holding was no longer viable when theconversion undertaking expired in March 1984. Consequently, the refusal toallocate the applicant a reference quantity had no subsequent effect on theeconomic decline of his holding.

42.

    Having regard to the applicant's economic situation, the fact that he was notallocated a reference quantity could, at most, merely have contributed to theaggravation of his financial difficulties and to the forced sale of the holding. This

is not enough, however, to cause the Community to incur liability by virtue of alegislative act.

43.

    The causal link is broken in that regard, in that the damage, which was broughtabout at least in part by a lack of foresight or mismanagement on the part of theapplicant, is primarily due to the victim's behaviour (Case 169/73 CompagnieContinentale v Council [1975] ECR 117, at 135, and Case 26/81 Oleifici Mediterraneiv EEC [1982] ECR 3057, at 3079).

44.

    As regards the second head of damage pleaded, relating to the impossibility of theapplicant's leasing the reference quantity during the period from 1 April 1984 to31 March 1993, the defendants maintain that this does not give rise to any liabilityto pay compensation.

45.

    The term for which the reference quantity could have been leased could only havecovered the period from the expiry of the conversion undertaking to 25 March1986, the date of the forced sale of the holding. During that period the leasing ofreference quantities was not permitted by Article 5c of Regulation No 804/68 inconjunction with Article 7 of Regulation No 857/84; that situation was held by theCourt of Justice, in its judgment in Case C-44/89 von Deetzen [1991] ECR I-5119,not to be contrary to the principle of protection of legitimate expectations. Itfollows that it was not possible for the applicant to lease the quantity in questionduring the period when he might have enjoyed the benefit of it.

46.

    As regards the third head of damage pleaded, corresponding, in the applicant'ssubmission, to the value of the reference quantity denied to him, the defendantscontend that this cannot cover more than the loss of earnings arising from the factthat it was impossible for him to use the reference quantity himself. They observe,however, that, following the forced sale of his holding in 1986, the applicant wasno longer in a position to produce milk or, consequently, to obtain a referencequantity for the ensuing milk-marketing years.

Findings of the Court

47.

    It follows from Mulder II that the Community incurred liability vis-à-vis eachproducer who suffered reparable injury through having been prevented fromdelivering milk as a result of the application of Regulation No 857/84, as theinstitutions acknowledged in their Communication of 5 August (paragraphs 1 and3) (see also the judgment of the Court of First Instance in Case T-20/94 Hartmannv Council and Commission [1997] ECR II-595, paragraph 71).

48.

    In the light of the documents before the Court, which the defendants have notchallenged, the applicant is in the same situation as that of the producers referredto in Mulder II. Because he had entered into a conversion undertaking pursuant

to Regulation No 1078/77, he was refused, as a result of Regulation No 857/84, thegrant of a reference quantity when that undertaking expired.

49.

    In those circumstances, he is entitled to compensation from the defendants for theloss suffered by him as a result of the application of Regulation No 857/84.

50.

    It is clear from Mulder II that reparable damage is damage which results from thedeprivation of a reference quantity during the period between the date on whichRegulation No 857/84 in its original version was applied to each producer and thedate on which those producers were allocated a specific reference quantity pursuantto Regulation No 764/89.

51.

    In the present case, however, although the applicant was unlawfully denied areference quantity pursuant to Regulation No 857/84 in 1984, he was no longerentitled to such a quantity after 25 March 1986, the date of the forced sale of theholding in respect of which a conversion undertaking had been entered into in1978. Since a reference quantity is allocated in relation to a specific parcel of land(Case C-98/91 Herbrink [1994] ECR I-223, paragraph 13, and Case C-15/95 EARLde Kerlast v Unicopa [1997] ECR I-1961, paragraph 17), the applicant was nolonger entitled to such a quantity once he ceased to be the owner of land qualifyingfor it.

52.

    It follows that the reparable damage suffered by the applicant as a result of hishaving been denied that quantity can only be the damage sustained by him up to25 March 1986.

53.

    Before the extent of the applicant's right to compensation can be determined, it isnecessary to consider whether and to what extent the applicant's claims are barredthrough lapse of time.

Time-bar

Arguments of the parties

54.

    The applicant maintains that the defendants are not entitled to plead expiry of thelimitation period, since they waived the right to do so in their Communication of5 August. The institutions are required by virtue of the rule of law to adhere tothe positions adopted by them, on which the producers must be able to placereliance. It is not open to the institutions, therefore, subsequently to plead expiryof the limitation period.

55.

    The applicant considers that in any event his rights are not barred through lapseof time. He submits that, according to the case-law of the Court of Justice (JoinedCases 256/80, 257/80, 265/80, 267/80 and 5/81 Birra Wührer and Others v Counciland Commission [1982] ECR 85 and Case 51/81 De Franceschi v Council and

Commission [1982] ECR 117, hereinafter 'Birra Wührer and De Franceschi‘), thelimitation period does not begin to run until the victim becomes aware of thedamage and of the act giving rise to it. The victim must be in a position toappreciate the factual and legal circumstances of the matter. In the present case,that was not possible prior to publication of the judgment in Mulder II, the time atwhich it became clear that the institutions were liable to the producers.

56.

    Even assuming that time started to run on the date of the forced sale of theholding in 1986, the limitation period was interrupted by Regulation No 764/89,which was adopted following delivery of the judgment in Mulder I and was designedto settle the actions for compensation resulting from the lacunae in the originalversion of Regulation No 857/84.

57.

    The applicant further relies in that regard on the proceedings brought by himbefore the national court of competent jurisdiction against the decision refusing hima reference quantity under Regulation No 764/89 (see paragraph 12 above).

58.

    Lastly, he maintains that his application cannot be barred through lapse of time,in view of the fact that, from 1992 onwards, following delivery of the judgment inMulder II, he approached the Commission with a view to negotiating an amicablesettlement.

59.

    The defendant institutions contend that the action for compensation for thedamage alleged is barred through lapse of time. The limitation period laid downin Article 43 of the Statute starts to run, in matters concerning damage caused bya legislative act, once the applicant has suffered ascertainable injury (Birra Wührerand De Franceschi, paragraphs 10).

60.

    In the present case, the alleged damage was caused by Regulation No 857/84. Itwas already sufficiently ascertainable when that regulation entered into force on1 April 1984, inasmuch as it was clear, as from that date, that the applicant wouldnot obtain a reference quantity. At the very least, time had started to run on26 March 1986, the day after the forced sale of the holding. Consequently, theapplicant's action was barred on 26 March 1991, five years after the sale and priorto the institution of the proceedings.

61.

    Contrary to the applicant's submission, neither the date on which the Court ofJustice found, in Mulder I, that Regulation No 857/84 was invalid nor the date onwhich, in Mulder II, it held that compensation was payable can constitute the pointin time at which the limitation period started to run. In that regard, the sole factorto be taken into consideration is knowledge of the act giving rise to the damage;awareness that it has been declared invalid, or that compensation has been held tobe payable, cannot constitute a material consideration (judgment of the Court ofJustice in Case 145/83 Adams v Commission [1985] ECR 3539, paragraph 50).

62.

    The defendants also maintain that only the institution of proceedings in good timewould have been enough to interrupt the limitation period.

63.

    It is clear from the second sentence of Article 43 of the Statute that the adoptionof a legal act does not bring about such an interruption. Consequently, theadoption of Regulation No 764/89 did not affect the running of time.

64.

    Similarly, the institution of proceedings before the national courts, which in thepresent case did not in any event put in issue the liability of the Community, is notenough to interrupt the limitation period.

65.

    As regards the Communication of 5 August, the defendants maintain that thewaiver contained in that communication of the right to plead expiry of thelimitation period related only to rights which had not yet become time-barred onthat date or on the date on which the producer applied to one of the institutions. As it is, the applicant's claim for damages in the present case became time-barredon 26 March 1991, prior to publication of that communication, and the applicantfailed to apply to the institutions in good time.

Findings of the Court

66.

    The limitation period laid down by Article 43 of the Statute, which applies toproceedings before the Court of First Instance by virtue of Article 46 of theStatute, cannot start to run before all the requirements governing the obligation tomake good the damage are satisfied and, in particular, in cases where liability stemsfrom a legislative measure, before the injurious effects of the measure have beenproduced (Birra Wührer and De Franceschi, paragraphs 10, and Hartmann v Counciland Commission, cited above, paragraph 107).

67.

    In this case, the damage arising from the impossibility of utilising a referencequantity was suffered as from the day on which, following the expiry of hisconversion undertaking, the applicant could have resumed milk deliveries if he hadnot been refused such a quantity, that is to say, from 1 April 1984, the date onwhich Regulation No 857/84 became applicable to him. It was on that date,therefore, that the requirements for bringing an action for damages against theCommunity were fulfilled and that the limitation period started to run.

68.

    The applicant's argument that the limitation period did not begin to run until thedate on which Regulation No 857/84 was declared invalid by the judgment inMulder I is unfounded. As the Court has previously held, that argument istantamount to making the right to bring an action for damages depend on the actwhich caused the damage having first been annulled or declared invalid. Consequently, he is ignoring the fact that actions for damages under Articles 178and 215 of the Treaty are independent of actions for annulment; the fact that theyare so independent enables an action for damages to be brought without there first

having been an action for annulment, and therefore secures greater protection forindividuals (Hartmann v Council and Commission, cited above, paragraph 128).

69.

    For the purposes of determining the period during which the damage was suffered,it must be noted that that damage was not caused instantaneously. It continued fora period, that is to say, for so long as the applicant was unable to obtain areference quantity. The damage was continuous and recurred on a daily basis(Hartmann v Council and Commission, cited above, paragraph 132). Entitlementto compensation relates, therefore, to consecutive periods commencing on each dayon which it was not possible to market milk.

70.

    However, since the applicant lost his holding on 25 March 1986, he was, as fromthat date, no longer entitled to a reference quantity (see paragraphs 51 and 52above). Consequently, he did not suffer any injury linked to the application ofRegulation No 857/84 after that date; all the damage suffered by him, including theloss of the holding, was already known. It follows that the limitation period expiredfive years after 25 March 1986, that is to say, on 25 March 1991.

71.

    The applicant did not, prior to 25 March 1991, perform any of the acts which,under Article 43 of the Statute, interrupt the limitation period, namely theinstitution of proceedings before the Community judicature or the prior submissionof an application to the competent Community institution.

72.

    The proceedings before the national courts on which the applicant seeks to rely didnot constitute an act interrupting the limitation period. Only the commencementof an action before the Community judicature could have had such an effect. Moreover, the proceedings in question concerned the refusal by the nationalauthorities to allocate a reference quantity to the applicant pursuant to RegulationNo 764/89. They cannot, therefore, affect the present application forcompensation.

73.

    The applicant's assertion that he entered into negotiations with the Commission in1992 is not borne out by the documents before the Court. In particular, theapplicant has not produced any document which could have constituted a priorapplication within the meaning of Article 43 of the Statute.

74.

    Lastly, contrary to the applicant's submission, Regulation No 764/89 did not itselfinterrupt the period of limitation. That regulation merely provides for theallocation of a reference quantity to certain producers. It cannot, therefore, haveany effect on the reparation of damage suffered prior to its entry into force. Moreover, none of its provisions expresses any intention on the part of theinstitutions to suspend the limitation periods then running.

75.

    In those circumstances, since there was no interruption or suspension of thelimitation period, which expired at the latest on 25 March 1991, the proceedings

brought on 8 September 1993 were initiated too late, the remedy already beingbarred through lapse of time.

76.

    It is not open to the applicant, in that regard, to deny that the defendants areentitled to plead expiry of the limitation period, on the ground that they waived theright to do so in the Communication of 5 August. In that communication, theinstitutions undertook not to raise such a plea provided that entitlement tocompensation was not already time-barred on the date on which theCommunication was published.

77.

    It follows that the application must be dismissed.

Costs

78.

    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs if they have been applied for in the successful party'spleadings. Since the applicant has been unsuccessful, he must be ordered to paythe costs, as applied for by the defendants.

On those grounds,

THE COURT OF FIRST INSTANCE (First Chamber)

hereby:

1.    Dismisses the application;

2.    Orders the applicant to pay the costs.

SaggioTiili Moura Ramos

Delivered in open court in Luxembourg on 4 February 1998.

H. Jung

A. Saggio

Registrar

President

1: Language of the case: German.

ECR