1 THE APPLICATION LODGED ON 1 OCTOBER 1974 SEEKS AN ORDER THAT THE EUROPEAN ECONOMIC COMMUNITY SHOULD PAY THE SUM OF FF 955 130.47 IN REPARATION FOR THE DAMAGE WHICH THE APPLICANT CLAIMS TO HAVE SUFFERED AS A RESULT OF THE WITHDRAWAL, BY REGULATION NO 189/72 OF THE COMMISSION OF 26 JANUARY 1972, OF THE MONETARY COMPENSATORY AMOUNTS APPLICABLE TO COLZA AND RAPE SEEDS AND TO THE OILS OBTAINED FROM THOSE SEEDS .
ADMISSIBILITY
2 THE COMMISSION, THE DEFENDANT, OBJECTS THAT THE APPLICATION IS INADMISSIBLE IN THAT THE ORIGINATING APPLICATION DOES NOT CONTAIN THE NECESSARY INFORMATION, ACCORDING TO ARTICLE 19 OF THE STATUTE OF THE COURT AND ARTICLE 38 ( 1 ) OF THE RULES OF PROCEDURE, AS TO THE SUBJECT-MATTER OF THE DISPUTE AND THE GROUNDS ON WHICH THE APPLICATION IS BASED .
3 IT ALLEGES THAT, AS IT IS AN ACTION FOR DAMAGES UNDER ARTICLES 178 AND 215 OF THE TREATY AND NOT AN ACTION FOR PAYMENT, THE APPLICATION IS DEFECTIVE IN PARTICULAR IN THAT IT CONTAINS NO FACTOR RELATING TO THE EXISTENCE OF DAMAGE DISTINCT FROM THE LOSS ARISING FROM THE ABOLITION OF THE MONETARY COMPENSATORY AMOUNTS .
4 THE ALLEGED DEFECTS HAVE NOT BEEN SUCH AS TO PREVENT THE COMMISSION FROM EFFECTIVELY DEFENDING ITS INTERESTS OR TO HINDER THE COURT IN THE EXERCISE OF ITS JUDICIAL REVIEW, AND THE APPLICANT HAS MOREOVER PROVIDED ALL RELEVANT INFORMATION DURING THE PROCEEDINGS .
5 IN ITS REPLY, THE APPLICANT HAS IN PARTICULAR DEFINED ITS ORIGINAL CONCLUSIONS BY ASKING THE COURT TO RULE IN AN INTERLOCUTORY JUDGMENT THAT THE COMMUNITY IS OBLIGED TO MAKE REPARATION FOR THE LOSS ALLEGEDLY SUFFERED AND NOT TO RULE ON THE EXACT EXTENT OF THE LOSS AND THE AMOUNT OF THE COMPENSATION UNTIL AFTER RECEIVING AN EXPERT'S REPORT .
6 THE APPLICATION IS THEREFORE ADMISSIBLE .
THE SUBSTANCE OF THE CASE
7 THE APPLICANT CLAIMS THAT THE WITHDRAWAL OF THE COMPENSATORY AMOUNTS APPLICABLE TO COLZA AND RAPE SEEDS BY REGULATION NO 189/72 HAS CAUSED IT LOSS FIRST WITH REGARD TO CERTAIN QUANTITIES OF SEED RECEIVING AID FIXED IN ADVANCE IN ACCORDANCE WITH THE PROVISIONS OF REGULATION NO 136/66 OF THE COUNCIL OF 22 SEPTEMBER 1966 ON THE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN OILS AND FATS AND, SECONDLY, WITH REGARD TO CERTAIN OTHER QUANTITIES INTENDED FOR EXPORT TO A THIRD COUNTRY, FOR WHICH REFUNDS HAD BEEN FIXED IN ADVANCE IN ACCORDANCE WITH THE SAME REGULATION .
8 THE SYSTEM OF COMPENSATORY AMOUNTS INSTITUTED BY REGULATION NO 974/71 OF THE COUNCIL OF 12 MAY 1971 INVOLVES, UNDER THE VERSION IN FORCE AT THE TIME OF THE FACTS IN DISPUTE, AN OPTION FOR A MEMBER STATE WHICH ALLOWS THE EXCHANGE RATE OF ITS CURRENCY TO FLUCTUATE BY A MARGIN WIDER THAN THE ONE PERMITTED BY INTERNATIONAL RULES TO CHARGE ON IMPORTS AND TO GRANT ON EXPORTS COMPENSATORY AMOUNTS FOR SPECIFIED AGRICULTURAL PRODUCTS IN SO FAR AS THE APPLICATION OF THAT EXCHANGE RATE WOULD LEAD TO DISTURBANCES TO TRADE IN THE PRODUCTS IN QUESTION .
9 IT IS FOR THE COMMISSION, AFTER RECEIVING THE OPINION OF THE MANAGEMENT COMMITTEES, TO ESTABLISH THE EXISTENCE OF SUCH A SITUATION .
10 THE SYSTEM OF COMPENSATORY AMOUNTS, WHICH INITIALLY WAS NOT APPLIED TO PRODUCTS IN THE OILS AND FATS SECTOR, WAS EXTENDED TO COLZA AND RAPE SEEDS AND TO THE OILS FROM THOSE SEEDS BY REGULATION NO 1471/71 OF THE COMMISSION OF 9 JULY 1971, COVERING THE HARVEST THE MARKETING OF WHICH WAS TO BEGIN AT THE START OF THE 1971/1972 MARKETING YEAR .
11 AS A RESULT OF THE ALTERATION OF THE EXCHANGE RATES IN RELATION TO THE DOLLAR IN DECEMBER 1971, THE SYSTEM OF COMPENSATORY AMOUNTS APPLICABLE FORMERLY IN THE FEDERAL REPUBLIC OF GERMANY, BELGIUM, LUXEMBOURG AND THE NETHERLANDS WAS EXTENDED TO THE OTHER MEMBER STATES, INCLUDING FRANCE .
12 THE AMOUNTS APPLICABLE AS FROM 3 JANUARY 1972, INCLUDING THE AMOUNTS APPLICABLE IN FRANCE FOR COLZA AND RAPE SEEDS, WERE FIXED BY REGULATION NO 17/72 OF THE COMMISSION OF 31 DECEMBER 1971 .
13 NEW COMPENSATORY AMOUNTS, TAKING INTO ACCOUNT THE EXCHANGE RATES RECORDED BETWEEN 13 AND 19 JANUARY, WERE FIXED BY REGULATION NO 144/72 OF THE COMMISSION OF 21 JANUARY 1972, WHICH ENTERED INTO FORCE ON 24 JANUARY 1972 .
14 FINALLY, BY REGULATION NO 189/72 OF 26 JANUARY, WHICH WAS PUBLISHED IN THE OFFICIAL JOURNAL ON 28 JANUARY AND ENTERED INTO FORCE ON 1 FEBRUARY 1972, THE COMMISSION ABOLISHED THE COMPENSATORY AMOUNTS APPLICABLE TO COLZA AND RAPE SEEDS AND TO THE OILS FROM THOSE SEEDS IN VIEW OF THE FACT THAT THE MARKET SITUATION WAS SUCH THAT THE APPLICATION OF THOSE AMOUNTS NO LONGER APPEARED INDISPENSABLE IN ORDER TO AVOID DISTURBANCES TO TRADE IN THOSE PRODUCTS .
15 THE ADVANCE FIXING OF AID AND REFUNDS ON EXPORTS, ON WHICH THE APPLICANT RELIES TO SUPPORT ITS REQUEST FOR COMPENSATION, WAS GRANTED TO IT BETWEEN 6 AND 21 JANUARY 1972, THAT IS TO SAY, DURING THE PERIOD IN WHICH THE COMPENSATORY AMOUNTS FOR COLZA AND RAPE SEEDS WERE APPLICABLE IN FRANCE .
16 SINCE THE DISPUTED MEASURE IS OF A LEGISLATIVE NATURE AND CONSTITUTES A MEASURE TAKEN IN THE SPHERE OF ECONOMIC POLICY, THE COMMUNITY CANNOT BE LIABLE FOR ANY DAMAGE SUFFERED BY INDIVIDUALS AS A CONSEQUENCE OF THAT MEASURE UNDER THE PROVISIONS OF THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY, UNLESS A SUFFICIENTLY FLAGRANT VIOLATION OF A SUPERIOR RULE OF LAW FOR THE PROTECTION OF THE INDIVIDUAL HAS OCCURRED .
17 IN THIS CONNEXION THE APPLICANT CONTENDS IN THE FIRST PLACE THAT BY ABOLISHING THE COMPENSATORY AMOUNTS BY REGULATION NO 189/72 THE COMMISSION HAS INFRINGED BASIC REGULATION NO 974/71 OF THE COUNCIL .
18 THAT REGULATION, IT CONTENDS, WHILE CONFERRING ON THE COMMISSION THE POWER TO ASCERTAIN THAT THE CONDITIONS FOR THE APPLICATION OF THE COMPENSATORY AMOUNTS ARE MET, DOES NOT ALLOW IT TO TAKE A DECISION WITHDRAWING COMPENSATORY AMOUNTS ONCE INSTITUTED AND IT REQUIRES IN ANY EVENT THAT THE COMMISSION'S DECISION BE TAKEN ON THE BASIS OF AN ASSESSMENT OF SOLELY MONETARY FACTORS TO THE EXCLUSION OF ECONOMIC FACTORS WHICH IN THIS CASE THE COMMISSION HAS TAKEN INTO CONSIDERATION .
19 IT FOLLOWS FROM THE LAST SENTENCE OF ARTICLE 1 ( 2 ) OF REGULATION NO 974/71 THAT THE OPTION FOR MEMBER STATES TO APPLY COMPENSATORY AMOUNTS MAY ONLY BE EXERCISED WHERE THE MONETARY MEASURES IN QUESTION WOULD LEAD TO DISTURBANCES TO TRADE IN AGRICULTURAL PRODUCTS .
20 AS THE APPLICATION OF COMPENSATORY AMOUNTS IS A MEASURE OF AN EXCEPTIONAL NATURE, THIS PROVISION MUST BE UNDERSTOOD AS ENUNCIATING A CONDITION NOT ONLY OF THE INTRODUCTION BUT ALSO OF THE MAINTENANCE OF COMPENSATORY AMOUNTS FOR A SPECIFIC PRODUCT .
21 THE COMMISSION HAS A LARGE AREA OF DISCRETION FOR JUDGING WHETHER THE MONETARY MEASURES CONCERNED MIGHT LEAD TO DISTURBANCES TO TRADE IN THE PRODUCT IN QUESTION .
22 IN ORDER TO JUDGE THE RISK OF SUCH DISTURBANCES, IT IS PERMISSIBLE FOR THE COMMISSION TO TAKE INTO ACCOUNT MARKET CONDITIONS AS WELL AS MONETARY FACTORS .
23 IT HAS NOT BEEN ESTABLISHED THAT THE COMMISSION EXCEEDED THE LIMITS OF ITS POWER THUS DEFINED WHEN IT CONSIDERED TOWARDS THE END OF JANUARY 1972 THAT THE SITUATION ON THE MARKET IN COLZA AND RAPE SEEDS WAS SUCH THAT THE APPLICATION OF COMPENSATORY AMOUNTS FOR THOSE PRODUCTS WAS NO LONGER NECESSARY .
24 THE APPLICANT CLAIMS IN ADDITION THAT THE WITHDRAWAL OF THE MONETARY AMOUNTS BY REGULATION NO 189/72 WAS INCOMPATIBLE WITH ARTICLE 7 OF REGULATION NO 974/71 WHICH PROVIDES THAT PARTIAL OR TEMPORARY USE MAY NOT BE MADE OF THE AUTHORIZATION PROVIDED FOR IN THE REGULATION .
25 ACCORDING TO ARTICLE 1 ( 1 ) OF REGULATION NO 974/71, ANY MEMBER STATE WHICH ADOPTS CERTAIN MONETARY MEASURES IS 'AUTHORIZED' TO APPLY COMPENSATORY AMOUNTS .
26 ARTICLE 7, ECHOING THE TERM 'AUTHORIZATION', IS ADDRESSED SOLELY TO MEMBER STATES AND DOES NOT CONCERN THE POWERS OF THE COMMISSION .
27 REGULATION NO 189/72 CANNOT THEREFORE BE CONSIDERED TO BE ILLEGAL IN THE LIGHT OF THE PROVISIONS OF REGULATION NO 974/71 .
28 THE APPLICANT CONTENDS SECONDLY THAT THE WITHDRAWAL OF THE COMPENSATORY AMOUNTS FROM 1 FEBRUARY 1972 VIOLATED THE PRINCIPLE OF LEGAL CERTAINTY, ON THE ONE HAND, IN THAT IT HAD RETROACTIVE EFFECT AND, ON THE OTHER HAND, IN THAT IT IGNORED THE LEGITIMATE EXPECTATION OF PERSONS CONCERNED THAT THE COMPENSATORY AMOUNTS WOULD BE MAINTAINED FOR CURRENT TRANSACTIONS .
29 WITH REGARD FIRST TO THE PROBLEM OF RETROACTIVITY, IT MUST BE RECALLED THAT THE COMPENSATORY AMOUNTS ARE LEVIED ON IMPORTS AND GRANTED ON EXPORTS OF THE GOODS CONCERNED AND THAT NO ADVANCE FIXING OF THE AMOUNTS IS POSSIBLE .
30 IT FOLLOWS THAT THE ACTUAL RIGHT TO RECEIVE A COMPENSATORY AMOUNT ON EXPORTS IS ONLY CREATED BY THE PERFORMANCE OF THE EXPORT TRANSACTION AND ONLY FROM THE MOMENT WHEN THIS TAKES PLACE .
31 REGULATION NO 189/72 OF 26 JANUARY 1972, WHICH WAS PUBLISHED IN THE OFFICIAL JOURNAL ON 28 JANUARY AND ENTERED INTO FORCE ON 1 FEBRUARY 1972, IS APPLIED SOLELY TO EXPORTS AND IMPORTS CARRIED OUT FROM THAT DATE, WHILST THOSE CARRIED OUT BEFORE THAT DATE CONTINUED TO BE SUBJECT TO THE PREVIOUS RULES .
32 THE REGULATION DOES NOT THEREFORE HAVE RETROACTIVE EFFECT IN THE PROPER SENSE OF THE EXPRESSION .
33 THE APPLICANT CLAIMS IN ADDITION THAT THE WITHDRAWAL OF THE COMPENSATORY AMOUNTS WITH IMMEDIATE EFFECT DESTROYED THE EXPECTATION WHICH HE HAD OF THEIR MAINTENANCE WHEN HE SOUGHT THE ADVANCE FIXING OF AID AND REFUNDS ON EXPORTS, THUS DEFINITIVELY UNDERTAKING WITH THE COMPETENT AUTHORITIES TO CARRY OUT COMMERCIAL TRANSACTIONS FROM WHICH HE COULD NOT WITHDRAW SAVE UNDER PAIN OF FORFEITING THE DEPOSIT LODGED .
34 IT IS APPROPRIATE IN THIS CONNEXION TO EXAMINE SEPARATELY THE SITUATION WITH REGARD TO ADVANCE FIXING OF AID ON THE ONE HAND AND REFUNDS ON EXPORTS ON THE OTHER .
35 WITH REGARD TO THE QUANTITIES OF SEED FOR WHICH AID WAS FIXED IN ADVANCE AND WHICH BECAUSE OF THIS WAS NOT INTENDED FOR EXPORT, THE APPLICANT WAS NOT ABLE DIRECTLY TO BENEFIT FROM ANY COMPENSATORY AMOUNT .
36 ALTHOUGH IT IS TRUE THAT THE SYSTEM OF COMPENSATORY AMOUNTS IS INTENDED IN PARTICULAR TO PROTECT THE LEVEL OF PRICES IN THE MEMBER STATE IN QUESTION AGAINST DISTURBANCES WHICH MIGHT RESULT FROM MONETARY INSTABILITY, IT IS NEVERTHELESS COMMON GROUND IN THIS CASE THAT THE WITHDRAWAL OF COMPENSATORY AMOUNTS IN THE OILS AND FATS SECTOR AS FROM 1 FEBRUARY 1972 DID NOT APPRECIABLY AFFECT THE PRICE OF COLZA SEED ON THE FRENCH MARKET .
37 IT MUST BE CONCLUDED THAT NO LOSS WAS CAUSED TO THE APPLICANT BY REGULATION NO 189/72 WITH REGARD TO THE QUANTITIES OF SEED WHICH WERE NOT INTENDED FOR EXPORT .
38 WITH REGARD, SECONDLY, TO THE QUANTITIES INTENDED FOR EXPORT AND FOR WHICH THE APPLICANT OBTAINED THE ADVANCE FIXING OF THE REFUNDS, IT MUST BE NOTED THAT THE OBJECTIVE OF THE SYSTEM OF COMPENSATORY AMOUNTS, AS IT APPEARS FROM THE COMMUNITY RULES, IS TO WARD OFF DIFFICULTIES WHICH MONETARY INSTABILITY MIGHT CREATE FOR THE PROPER FUNCTIONING OF THE COMMON ORGANIZATIONS OF THE MARKETS, RATHER THAN TO PROTECT THE INDIVIDUAL INTERESTS OF TRADERS .
39 THE CONDITIONS GOVERNING THE APPLICATION AND ABOLITION OF THE SYSTEM OF COMPENSATORY AMOUNTS IN A SPECIFIC SECTOR DO NOT TAKE INTO ACCOUNT THE INDIVIDUAL SITUATIONS OF TRADERS AND DO NOT GUARANTEE TO THEM A CONTINUOUS APPLICATION OF THE SYSTEM .
40 IT FOLLOWS THAT THE SYSTEM OF COMPENSATORY AMOUNTS CANNOT BE CONSIDERED TO BE TANTAMOUNT TO A GUARANTEE FOR TRADERS AGAINST THE RISKS OF ALTERATION OF EXCHANGE RATES .
41 NEVERTHELESS THE APPLICATION OF THE COMPENSATORY AMOUNTS IN PRACTICE AVOIDS THE EXCHANGE RISK, SO THAT A TRADER, EVEN A PRUDENT ONE, MIGHT BE INDUCED TO OMIT TO COVER HIMSELF AGAINST SUCH RISK .
42 IN THESE CIRCUMSTANCES, A TRADER MAY LEGITIMATELY EXPECT THAT FOR TRANSACTIONS IRREVOCABLY UNDERTAKEN BY HIM BECAUSE HE HAS OBTAINED, SUBJECT TO A DEPOSIT, EXPORT LICENCES FIXING THE AMOUNT OF THE REFUND IN ADVANCE, NO UNFORESEEABLE ALTERATION WILL OCCUR WHICH COULD HAVE THE EFFECT OF CAUSING HIM INEVITABLE LOSS, BY RE-EXPOSING HIM TO THE EXCHANGE RISK .
43 THE COMMUNITY IS THEREFORE LIABLE IF, IN THE ABSENCE OF AN OVERRIDING MATTER OF PUBLIC INTEREST, THE COMMISSION ABOLISHED WITH IMMEDIATE EFFECT AND WITHOUT WARNING THE APPLICATION OF COMPENSATORY AMOUNTS IN A SPECIFIC SECTOR WITHOUT ADOPTING TRANSITIONAL MEASURES WHICH WOULD AT LEAST PERMIT TRADERS EITHER TO AVOID THE LOSS WHICH WOULD HAVE BEEN SUFFERED IN THE PERFORMANCE OF EXPORT CONTRACTS, THE EXISTENCE AND IRREVOCABILITY OF WHICH ARE ESTABLISHED BY THE ADVANCE FIXING OF THE REFUNDS, OR TO BE COMPENSATED FOR SUCH LOSS .
44 IN THE ABSENCE OF AN OVERRIDING MATTER OF PUBLIC INTEREST, THE COMMISSION HAS VIOLATED A SUPERIOR RULE OF LAW, THUS RENDERING THE COMMUNITY LIABLE, BY FAILING TO INCLUDE IN REGULATION NO 189/72 TRANSITIONAL MEASURES FOR THE PROTECTION OF THE CONFIDENCE WHICH A TRADER MIGHT LEGITIMATELY HAVE HAD IN THE COMMUNITY RULES .
45 WITH REGARD TO THE EXTENT OF THE LOSS TO BE COMPENSATED, IT IS NECESSARY TO TAKE INTO CONSIDERATION THE FACT THAT THE MAINTENANCE OF THE COMPENSATORY AMOUNTS WAS IN NO WAY GUARANTEED TO THE APPLICANT AND THAT IT COULD NOT THEREFORE LEGITIMATELY EXPECT UNDER ALL CIRCUMSTANCES TO MAKE THE PROFITS WHICH WOULD HAVE ACCRUED TO IT FROM THE CONTRACT UNDER THE SYSTEM OF COMPENSATORY AMOUNTS .
46 THE PROTECTION WHICH IT MAY CLAIM BY REASON OF ITS LEGITIMATE EXPECTATION IS MERELY THAT OF NOT SUFFERING LOSS BY REASON OF THE WITHDRAWAL OF THOSE AMOUNTS .
47 AS THE AMOUNT OF THE COMPENSATION DUE TO THE APPLICANT CANNOT BE DETERMINED AT THE PRESENT STAGE OF THE PROCEEDINGS, IT MUST BE HOLD BY INTERLOCUTORY JUDGMENT THAT THE COMMUNITY IS OBLIGED TO COMPENSATE THE APPLICANT FOR THE LOSS WHICH IT HAS SUFFERED, BY REASON OF THE WITHDRAWAL OF THE COMPENSATORY AMOUNTS, IN THE EXECUTION OF EXPORT TRANSACTIONS FOR WHICH THE REFUNDS HAD BEEN FIXED BY THE CERTIFICATES OF 6 JANUARY 1972, WHILE RESERVING THE FIXING OF THE AMOUNT OF COMPENSATION EITHER BY AGREEMENT BETWEEN THE PARTIES OR BY THE COURT IN THE ABSENCE OF SUCH AGREEMENT .
THE COURT
BY INTERLOCUTORY JUDGMENT,
1 . RULES THAT THE COMMISSION OF THE EUROPEAN COMMUNITIES MUST COMPENSATE THE COMPTOIR NATIONAL TECHNIQUE AGRICOLE FOR THE LOSS SUFFERED, BY REASON OF REGULATION NO 189/72 OF 26 JANUARY 1972, IN THE EXECUTION OF EXPORT TRANSACTIONS FOR WHICH THE REFUNDS HAD BEEN FIXED BY THE CERTIFICATES OF 6 JANUARY 1972;
2 . ORDERS THE PARTIES TO PRODUCE TO THE COURT WITHIN SIX MONTHS OF THE DATE OF THIS JUDGMENT FIGURES OF THE AMOUNT OF THE COMPENSATION ARRIVED AT BY AGREEMENT BETWEEN THE PARTIES;
3 . IN THE ABSENCE OF AGREEMENT, ORDERS THE PARTIES TO PRODUCE TO THE COURT WITHIN THE SAME PERIOD THEIR CONCLUSIONS WITH DETAILED FIGURES;
4 . RESERVES THE COSTS .
