Opinion of Mr Advocate-General Trabucchi
Mr President,
Members of the Court,
1. By Resolution of 20 July 1972, published in DJ C 86 of 10. 8. 1972, the Council, considering that it was essential to ensure that persons with an economic interest should be aware immediately of the tenor of the implementation provisions to be adopted at the beginning of 1973 to carry out the transitional measures provided for in the agricultural field under the Act of Accession to enable the new Member States to adjust to the rules in force in the Community, announced its approval of the text of the draft Regulation, published as an Annex to the Resolution, and made it clear that the text would be formally adopted immediately after the Treaty of Accession came into force.
2. The applicant maintains that the harm done by the Council, giving rise to liability on the part of the Community, consists in having, by Regulation No 229/73 of 31 January 1973, radically changed the system of which notice was given in July 1972.
3. Before this argument is considered, it is necessary to establish whether actions of the kind with which this case is concerned can, in principle, give rise to non-contractual liability on the part of the Community.
4. The case law of this Court of Justice faces clearly in the direction of giving legal force to acts of the Community executive, which, even when described as mere opinions, give notice of future action (see the Judgment in Case 14/57, Usines à tubes de la Sarre, Rec. 1957, p. 216); it also recognizes the legal effect of decisions, whatever their designation or description in law, which express an intention to lay down a future line of conduct (Judgment in Case 22/70, AETR, Rec. 1971, p. 276-277; Judgment in Case 81/72, Commission v Council [1973] ECR, 583).
5. The applicant does not contest the validity of Regulation No 229/73. That does not, however, rule out consideration on its merits of its action for damages which, according to decisions taken by this Court, constitutes a separate cause of action from that for annulment.
6. Arguing on the basis of an alleged inconsistency between the system represented by, on one hand, Articles 51, 52 and 55 (1) of the Acc of Accession and, on the other, the principle in the first paragraph of Article 55 (6), the applicant maintains that in July 1972 the Council opted for a system based on the first group of the above provisions.
7. It is true therefore that, in practice, exports from third countries into the Community could thus, in certain circumstances, receive preferential treatment to the detriment of trade within the Community. Because, in fact, an export transaction is not normally completed on the day on which the deal was concluded, there can be no doubt that in a fluid market situation in which there is a pronounced tendency for prices to rise, when this ter dency becomes widerspread the Community trader who exports to new Member States where prices are lower than the common ones could find himself at a disadvantage compared with the exporter from third countries where a system is in operation under which the compensatory amount varies according to changes in the world price for the product concerned. In these circumstances, the Community exporter is faced with the prospect of receiving a smaller compensatory amount than the one in force on the day when he concluded the contract and agreed the relevant purchase price, whereas the exporter from third countries is in the reverse situation of being able to count on having to pay a levy which is lower than that in force on the day when the contract of sale was concluded.
8. At this juncture, it should be noted that the present case is not concerned with the intrinsic importance of the fact that the general rules adopted by the Council for trade between the original States and the new Member States of the Community could, as a result of development which, in normal circumstances, could hardly be foreseen, prove less advantageous than those governing trade with third countries or imports from third countries. Even if, in theory, it could be shown to involve a difference of treatment infringing the principle of Community preference, any factor vitiating the legality of the act would be insufficient in itself to make the Community liable for the damage which the undertakings had sustained as a result. The Community's liability for the loss of which the applicant complains could arise only if the announcement by the Council in its Resolution of 20 July, and the draft Regulation attached to it, of its future course of action had been such as to give the applicant undertaking reasonable grounds for receiving a mistaken impression of certainty that the compensatory amounts indicated were bound to remain unchanged regardless of the direction in which the market might move.
9. As the fixing of the compensatory amount is a way of compensating not only for negative differences, by means of full payment of the amount to the company exporting from a Member State to another Member State where the prices are lower, but also, in the reverse situation, is a way of compensating for positive differences by means of a levy, the way in which the applicant proposes to interpret the system announced would, in the latter case, have led to manifestly erroneous results. Even where there was a marked rise in prices, exports from the new Member State to the remainder of the Community would have been subject to the same charge even if this was greatly in excess of the difference between the prices prevailing in the markets concerned, and this would also hold good for transactions concluded under changed market conditions. On the other hand, Community exporters to Great Britain would, until 31 January 1973, when Regulation No 229/73 was adopted, have been able, thanks to the rise in the price levels of cereals in Great Britain, to take advantage of the system of a fixed compensatory amount as described by the applicant to indulge in speculation without risk to themselves.
10. A decision contrary to the applicant's contention, therefore, is not simply a matter of invoking the basic rule that ignorance of the law is no excuse: although liability is associated with something in the nature of a breach of a binding undertaking on the part of the Council of the Community, certain aspects — explicit or implicit — of the undertaking referred the reader not only to the words of Article 55 (6) but to what is more important, its raison d'être as part of the system.
11. From another point of view, it has been sought to present the problem not as a breach of a straightforward undertaking but as a breach of a more general duty to inform, based on the importance of giving full information once it was decided to publish an announcement in advance. The answer to this is that information about the system was fully supplied in the Act of Accession: the compensatory amount would be subject to the maximum laid down in Article 55 (6). The Council did not repeat this because the purpose of the rules embodied in the Regulation which was first announced and subsequently implemented with effect from February 1973 was to indicate the actual size of the compensatory amount and not to guarantee an unconditional subsidy; and underlying everything was, reasonably enough, the reservation inherent in the basic premise of the Regulation.
12. On the other hand, a flexible system of advance fixing enabling allowance to be made for the differences in price actually prevailing at the time when an undertaking concludes the transaction to which advance fixing is applied, as it was on 1 December 1973, could not in any case have been applied before 1 January 1973 to operations involving the new Member States because the essential conditions were still lacking: one of them was the entry into force of the Community rules on the agricultural markets in relations with the new Member States.
1 Translated from the Italian.