Opinion of Mr Advocate-General Dutheillet de Lamothe

Mr President,

Members of the Court,

Grands Moulins de Paris and the Compagnie d'Approvisionnement, de transport et de crédit are two big French undertakings, which are closely linked and specialize in trade in and the processing of cereals.

The origin of their dispute with the Community is as follows:

As a result of the devaluation of the franc in 1969, the Council decided, as one of various measures which it adopted concerning agriculture, that France should grant subsidies for imports of cereal products from the Member States and third countries and that the Commission should fix the amount of and the procedure for granting those subsidies. As regards common wheat and mesiin, the amount was fixed first, on 22 August 1969, at FF 58.49 per metric ton and then, on 28 July 1970, at FF 44.43.

The applicants consider that, by fixing the subsidies at these amounts, the Commission infringed the provisions of the regulations of the Council empowering it to adopt such measures, and they sought various legal remedies to enable them to escape the pecuniary consequences which those measures might have for them.

To this end, the Compagnie d'Approvisionnement first tried to obtain the annulment of the Regulation of the Commission of 22 August 1969, in that it fixed the amount of the subsidy at FF 58.49, solely by means of an application for annulment lodged under Article 173 of the Treaty.

But, in its judgment of 16 April 1970 in Case 65/69 this Court dismissed that application as inadmissible on the ground that, as the contested measure was in the nature of a regulation and was not of individual concern to the applicant, the application provided for under Article 173 of the Treaty was not available to the undertaking concerned. Thereupon the latter and Grands Moulins lodged two successive applications before the Commission, the first of them concerning the implementation of the 1969 regulations, the second concerning the implementation of the 1970 regulations.

In these two applications those undertakings asked the Commission:

The Commission rejected those two applications by a letter of 26 February 1971.

On 16 and 18 March 1971, the two undertakings lodged the present applications before this Court for:

In accordance with the order of this Court of 9 June 1970, the Court must only examine the admissibility of these conclusions for the moment.

There are two aspects of this question of admissibility:

I

As regards the conclusions seeking recognition that the Community is pecuniarily liable to the applicants, the question of admissibility is approximately the same as the one considered before this Court yesterday by Mr Advocate-General Roemer in his Opinion in Case 5/71, Aktien-Zuckerfabrik Schöppenstedt v Council of the European Communities.

The solution which he proposed to this Court, namely to recognize the application for compensation as admissible, even though it questions the legality of a regulation, appears to emerge even more clearly in the present case than in the Zuckerfabrik Case.

In the latter case, the regulation which it is claimed is unlawful is a regulation of the Council. As these regulations are sui generis, this makes it difficult to apply to them the traditional distinctions made by our national systems of law between primary and subordinate legislation and complicates the problem.

That difficulty does not arise in the present case in which the contested regulations are regulations of the Commission adopted under powers expressly conferred by the Council and are therefore unquestionably more subordinate legislation.

Accordingly, I adopt in their entirety all the considerations which Mr Advocate-General Roemer advanced in favour of the admissibility of the application for compensation in which the legality of a regulation is called in question and I shall merely, first, briefly refute the arguments put forward by the Commission in the present case, and secondly, add a general comment to those already elaborated before this Court by Mr Advocate-General Roemer.

A — Two arguments were advanced by the Commission in the present cases in support of the contention that the application for damages is inadmissible.

1. The first is that, in such a case, an application for damages based on the illegality of a regulation is in fact a disguised application for annulment, designed to circumvent the provisions of Article 173, which strictly limit the opportunity for individuals to lodge applications for the annulment of regulations.

2. The Commission has also advanced a second argument, on which it laid special emphasis at the hearing, probably because of the effects of the judgment of this Court of 28 April 1971 in the Lü tticke case; this second argument is based on the provisions of Article 177 of the Treaty.

B — I should like to add a brief comment to the reasons relied upon by Mr Advocate-General Roemer.

On all issues of admissibility, it is essential, if unnecessary complications are to be avoided and if we wish a party to know which court to apply to in a dispute, to appraise the admissibility of an application solely on the basis of his conclusions, in other words, on the basis of what the applicant is seeking, without reference to the arguments on which he relies in support of his conclusions.

When the applicant is capable of submitting an application, when it is lodged within the prescribed period and when this Court is competent to grant him, where appropriate, what he asks, the application is admissible, regardless of the value or even the relevance of the arguments on which he relies.

In the present case, the Court has been asked within the prescribed period to order the Community to compensate the applicants for damage allegedly inflicted by its institutions.

This Court has jurisdiction and it alone in fact has jurisdiction to give a ruling on such conclusions.

Whether, in support of that application for damages, the applicants can properly claim the illegality of a Community regulation, whether this illegality exists and whether, if it is established, the Community can incur liability on account thereof are all questions which, in my view, are problems of substance but are irrelevant with regard to admissibility.

The position would be exactly the same if the action for damages were based on the possible liability of the Community, even in the absence of any illegality or wrongful act or omission, on account of the regulations which it had adopted.

II

It now remains for me to comment on the questions of admissibility raised by the other conclusions in the applications.

1. The conclusions for annulment of the import certificate and of the decision discharging that certificate seem to be inadmissible.

2. As regards the conclusions directed against the Commission's letter refusing the request for compensation I have some doubts as to their admissibility.

3. There now remain the conclusions directed against what the applicants call the implied decision by the Commission rejecting their application for compensation.

To summarize, my opinion, at the present stage of proceedings, is that :

1 Translated from the French .