Opinion of the advocate-general roemer

Mr President,

Members of the Court,

The case in which I am going to give my opinion today has its origin in the following facts.

Within the framework of the common agricultural policy a common organization of the market in sugar was created by Regulation No 1009/67 of the Council of 18 December 1967 (OJ No 308/1). This is characterized by a price system by means of which the agricultural population (more precisely sugar beet and sugar cane producers) should be guaranteed a fair income. As in other market organizations there is a price framework within which the prices for white sugar and raw sugar should be determined by the market. Target prices are provided for at the upper limit. Imports are brought up to their level by means of levies based on the threshold prices which are derived from the target prices having regard to the transport costs into the most distant consumer area (Article 12 of Regulation No 1009). The intervention prices constitute the lower limit. So that the market price does not fall below it the competent national agencies are obliged to purchase sugar at this level and to sell only at prices above the level of the intervention prices (Articles 9 and 10 of Regulation No 1009/67).

This system which has replaced earlier national organizations of the market has for the main part been applied as from 1 July 1968. Since to some extent it departs considerably from the national organizations of the market and their price levels which formerly applied (in the Federal Republic of Germany, for example, fixed prices, which had to be complied with, applied for sugar, Article 37 of Regulation No 1009 provides as follows: The Council, acting in accordance with the voting procedure laid down in Article 43 (2) of the Treaty on a proposal from the Commission shall, in respect of sugar in stock on 1 July 1968, adopt provisions concerning the measures needed to offset the difference between national sugar prices and prices valid from 1 July 1968. This was done in Regulation No 769/68 of 18 June 1968 (OJ 1968 L 143, p. 14). If the price of white sugar (calculated in a particular way) was lower on 30 June 1968 than the intervention price for white sugar applicable from 1 July 1968 in the area having the largest surplus, then in accordance with Article 1 of Regulation No 769 the undertakings in such a country with low prices had to pay a levy which brought the price applicable on 30 June 1968 up to the amount of the intervention price for white or raw sugar. In the event of the price of white sugar (again calculated in particular manner) applicable in a Member State on 30 June 1968 being higher than the derived intervention price applicable from 1 July 1968increased by the difference between the intervention price and the target price (or in other words — because the derived intervention prices, apart from in Italy and French overseas departments, corresponded to the intervention price (Cf. Regulation No 432/68 OJ 1968 L 89, p. 4) in the event of the price being above the target price), the Member State concerned was authorized under Article 2 of Regulation No 769/68 to grant a compensatory amount on the basis of the difference between the price applicable on 30 June 1968 and the derived intervention price for white sugar or, as the case may be, raw sugar.

This system was important also to the applicant which processed sugar beet into raw sugar. It apparently had on 30 June 196873399 Doppelzentener, that is 7339900 kg of white sugar in stock for which it received on selling it on 1 July 1968 a total of DM 5941425.56.

On the basis of the former net price for raw sugar (which was not fixed by law but could be derived from the former price for white sugar) this meant a loss of altogether 38717.97 u.a. On a comparison with the new intervention price for raw sugar there was a loss of profit of as much as 48976.35 u.a. However, the applicant was not entitled to receive a compensatory amount, because the former white sugar price (21.31 u.a. per 100 kg for quantities in excess of 100 metric tons) was not above the level of the new intervention price (21.23 u.a.), increased by the difference between the intervention price and the target price (1.12 u.a.), that is, it was not above the level of the target price (22.35 u.a.— Regulation No 430/68, OJ 1968 L 89, p. 2). Aktien-Zuckerfabrik Schöppenstedt considers this unjust, because the former raw sugar price (which the undertaking — in the Council's view, questionably—derived from the former white sugar price and reckoned at 20.765 u.a.) was more than the intervention price (which was derived from the intervention price for white sugar and amounted to 18.50 u.a.—Regulation No 767/68, OJ 1968 L 143, p. 11) applicable to raw sugar from 1 July 1968. The sugar factory takes the view that the system of Regulation No 769 is incompatible with Article 37 of Regulation No 1009/67 which created an obligation to grant a compensatory amount subject to certain conditions. It is wrong in its view to make everything turn on the variations in the white sugar price and there may be said to be discrimination because different standards have been selected for levies and compensatory amounts, that is for countries with low and high prices (in the one case the intervention price and in the other the target price). Zuckerfabrik Schöppenstedt sees these circumstances as constituting a wrongful act or omission. It wrote to the Council on 3 November 1970 and requested compensation in accordance with the second paragraph of Article 215 of the EEC Treaty for the damage caused to it by the defective regulation. Since the Council rejected this in a letter dated 17 December 1970 (received by the sugar factory on 21 December 1970), the matter was referred to the Court of Justice on 13 February 1971.

In its application Zuckerfabrik Schöppenstedt first of all asked that the Council be ordered to pay a sum of 48076.35 u.a. (this amount corresponds to the difference between the former national price and the new intervention price). In the reply this claim was reduced and all that was claimed was an order to pay 38852.78 u.a. (that is, a sum which was claimed to represent the actual minimum loss on the basis of the former German price). Further it was claimed in the alternative that the Council should be ordered to compensate the plaintiff for the damage caused by Regulation No 769/68 in some other way.

Against this the Council took the view that the application should be dismissed as inadmissible. In the alternative it claimed that it should be dismissed as unfounded.

Having regard to the complex nature of the matter and a number of disputed details only questions of admissibility were discussed in the oral proceedings on 29 June 1971. Accordingly my opinion is also limited now to this subject, but owing to the absence of any precise criteria the ground which it will cover will be comparatively extensive.

1. In the application admissibility is dealt with only from the point of view of observance of the limitation period. The Council has however not made any objections on this point. This is understandable in view of the fact that according to Article 43 of the Protocol on the Statute of the Court of Justice of the EEC proceedings in matters arising from non-contractual liability are barred after a period of five years from the occurrence of the event giving rise thereto and it is also comprehensible in view of the fact that after making claims for compensation through the official channels and their express rejection (which is the case here) application must be made to the Court of Justice before the expiration of two months after the rejection. There are indeed no difficulties in the present case with regard to these time-limits as an examination of the relevant facts show (publication of Regulation No 769/68 in the Official Journal of 25 June 1968; letter from the applicant to the Council of 3 November 1970; rejection of the claim for damages by a letter of the Council dated 17 December 1970 and lodging of the application at the Court on 13 February 1971).

2. The main problems in the present case arise in truth from the fact that it is a Community regulation which is claimed to be the cause of the damage. The question therefore first arises whether non-contractual liability can arise at all from legislative measures.

3. From this it may further be asked whether the making of a claim for compensation on the basis of a regulation is excluded for so long as the regulation is valid, that is, is not annulled or so long as its invalidity has not been found. It seems justified to consider this question in the context of an extensive examination of admissibility even if there is no doubt that a similar problem was discussed in the case of Plaumann (Case 25/62 [1963] ECR 95) when the substance of that case was considered.

4. A final objection to admissibility is as follows. The applicant is seeking in fact, this is the Council's opinion, not compensation for damage but price compensation according to criteria other than those laid down in Regulation No 769/68 and 'to establish an obligation on the part of the Community to pay the compensation instead of authorizing the Member States to do it. Its objective is thus the annulment of an existing set of rules and its replacement by another. Since, however, according to the Council, it is not possible for it to achieve this objective by a direct challenge to the said regulation, it cannot be allowed to seek the said result by means of an application for compensation.

5. As regards the alternative claim made by the applicant that the Council be ordered to compensate otherwise for the damage caused by Regulation No 769/68, it needs actually only to be observed that it comes into question only if the principal claim is unsuccessful. Therefore this need not yet be gone into. However, it could be suggested that the objections made by the Council are probably well founded because the subject-matter of the claim is not specified, and because no particulars thereof or grounds therefor are given. The admissibility of the application is, however, not thereby brought into question as a whole.

6. Allow me to summarize my opinion:

1 Translated from the German.

2 Gesetz über den Verkehr mit Zucker of 5 January 1951 in the version of 3 October 1951 and 9 August 1954; price regulation of 30 July 1958 as last amended by the regulation of 5 December 1967.

3 Cf. Max-Planck Institut für ausländisches öffentliches Recht und Völkerrecht, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, volume 44.

4 Cf. ibid. p. 777 et seq.; Goffin, Common Market Law Review, Vol. I., p. 354 et seq.; in German law reference may moreover be made to a judgment of the Oberlandesgericht Hamburg of 13 November 1970, Die öffentliche Verwaltung, 1971, p. 238.

5 Cf. Much, Max-Planck Institute ibid., p. 846; Heldrich, Europarecht, 1967, p. 349.

6 Cf. Zweigert in Rabels Zeitschrift, Vol. 28, p. 611.

7 Cf. Börner, Verhandlungen des 46. Deutschen Juristentages, Vol. II, p. G 37.

8 Cf. abovementioned publication of the Max-Planck Institut with references to French, Belgian, German and Italian law on pp. 777, 841 and 850.

9 Cf. Goffin in Common Market Law Review, Vol. I, p. 354 et seq.; Much op. cit. p. 749 the same observation is made.

10 Cf. Jänicke, Max Planck Institute's publication, p. 875, with regard to the legal position in Italy and Luxembourg.

11 Verhandlungen des Deutschen Juristentages 1966, Vol. I, p. 32.

12 Verhandlungen des 46. Deutschen Juristentages, Vol. II, p. G 37 and 49.

13 Europarecht 1968, p. 370, Die öffentliche Verwaltung 1964, p. 579.

14 Außenwirthschaftsdienst des Betriebsberaters 1963, p. 246.

15 Pasicrisie beige 1966, p. 523.

16 Common Market Law Review, Vol. I.

17 Cf. Goffin, ibid, 357.