C-169/73

JUDGMENT OF 4. 2. 1975 — CASE 169/73 COMPAGNIE CONTINENTALE v COUNCIL

CELEX: 61973CJ0169
Datum: 1975-02-04
Källa: eur-lex.europa.eu

THE COURT composed of: R. Lecourt, President, J. Mertens de Wilmars and A. J. Mackenzie Stuart, Presidents of Chambers, A. M. Donner, R. Monaco, P. Pescatore and M. Sørensen (Rapporteur), Judges, Advocate-General: A. Trabucchi Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and procedure

1. The claim

2. The system of compensatory amounts

3. Procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

Admissibility

Substance

Oral procedure

Further procedure

Law

Costs

A —. The facts and arguments developed in the course of the written procedure may be summarized as follows:

I —. Facts and procedure

1. The claim

2. The system of compensatory amounts

a. The Community agricultural rules apply to the new Member States as from 1 February 1973. Part Four, Title II of the Act of Accession laid down the transitional measures necessary to facilitate the adoption by the new Member States of the rules in force in the Community.

b. Taking the view that these transitional measures necessitated the adoption of implementing measures, the Council adopted on 20 July 1972 a Resolution containing in annex a draft Council regulation laying down general rules for the system of compensatory amounts in the cereal sector. In this Resolution it approves the text of the draft Regulation annexed to this Resolution, which will be formally adopted immediately after the entry into force of the Treaty of Accession …. In the recitals to the Resolution it is stated: whereas it is essential that traders should have knowledge of the content of such implementing provisions forthwith in order to enable the transition from the national systems in the new Member States to the Community system to be carried out under the best possible conditions; …

c. During the course of the months following the adoption of the Resolution the world prices of cereals increased considerably. As a result the levies on imports were reduced, so that by September 1972 they reached a level lower than the compensatory amounts provided for by the draft regulation, that is to say the situation provided for in the first paragraph of Article 55 (6) arose.

d. Such was still the position when the time arrived in January 1973 formally to adopt the regulations relating to compensatory amounts. The Council did this in Regulation No 229/73 of 31 January 1973 (OJ L 27/25/73). The Council included in this regulation certain provisions not provided for in the draft of July 1972 relating to the situation envisaged by Article 55 (6). For such case, under Article 7 of the regulation, the Commission shall apply the scale set out in the Annex to determine the amount applicable by way of compensatory amount. The result is to ensure general harmony, albeit not absolute, between the levy and the compensatory amount.

3. Procedure

II —. Conclusions of the parties

III —. Submissions and arguments of the parties

1. a. The applicant states that the provisions of the Act of Accession recognize the necessity of providing for the general rules of a system of compensatory amounts for the 1972/1973 marketing year which was commencing. Such was the purpose of the Resolution of the Council of 20 July 1972. The draft regulation annexed to the Resolution was the only text in existence such as to enable cereal exporters to know the conditions in which they could undertake new transactions. The indications thus given irreversibly affected the policy of cereal exporters in their forward transactions by encouraging them, from then on, to fill their order books until July 1973. It was thus on the basis and in consideration of the compensatory amount assessed at 42·33 u. a. per metric ton that the applicant at the end of September entered into export contracts to the United Kingdom relating to barley and denatured common wheat. It is clear that after these contracts had been entered into world prices for cereals increased considerably, which had the result of reducing considerably the difference between cereal prices in the original countries of the Community and world prices. In these circumstances, if it was decided to apply the provisions of the first paragraph of Article 55 (6) of the Act of Accession, the compensatory amount provided for in trade between the original countries of the Community and the United Kingdom would have had to be cut so as not to exceed the levy payable on import from third countries. The whole structure of the contracts for cereal exports made by French dealers on the basis of the Council's Resolution of 20 July 1972, would be upset and exporters would consequently suffer considerable loss. French cereal exporters did not fail to draw the attention of the Commission and the Council to this situation when, on 1 January 1973, the latter finally had to adopt the regulation. Further, on several occasions the applicant mentioned the situation to the Office National Interprofessionnel des Céréales, which in France was the executive organ of the Community for the payment of the compensatory amounts. Whatever provisions the Council thought of making for the future it would have been proper as regards the past not to alter the provisions of the draft of 20 July 1972 which French exporters had relied on in entering into contracts for the 1972/1973 marketing year. More precisely, the system in this resolution should have been maintained and the application of the first paragraph of Article 55 (6) of the Act of Accession ruled out. Ruling it out was all the more anticipated since the second paragraph of Article 55 (6) provided that the Council could derogate from this rule. b. The applicant contends that it was entitled to take it for granted that the Council would maintain the system which it had provided for and that the compensatory amounts would therefore be continued for the 1972/1973 marketing year at the level fixed in July 1972, at least as regards their application to contracts already entered into. This expectation was based in particular on the following considerations. The applicant recalls that in order to have regard to the general principles of the common agricultural policy and to overcome the difficulties inherent in trends on the markets of the Community in relation to the world market, the Council had seen fit to draw a distinction between two kinds of trade, the one intra-Community and the other with third countries. The principle on which the common organization of the cereal markets is based is the protection of the Community market with its corollary, the establishment of Community preference and the integration of national peculiarities. The application of this principle means that intra-Community trade benefits from a common organization of the markets with fixed and stable prices. On the other hand, trade with third countries remains characterized by the variations inherent in the world market and is subject to a flexible levy imposed on it with the operational corrective of advance fixing. Even if the risks inherent in any market structure were not removed in intra-Community trade, the essential Community principle of protection and stability is respected, in contrast to the position with regard to transactions concluded with third countries, which are completely exposed to the variations in world prices. The Act of Accession states clearly that the new Member States would be immediately subject to the obligations and enjoy the benefits of the common agricultural policy. This policy therefore applies ipso facto in its entirety to the United Kingdom which thus loses its status as a third country to gain that of a Member State. The fixed nature of the compensatory amounts on accession is thus undoubtedly in accordance both with the spirit and with the letter of the common organization of the market. It is inconceivable for the Council, while establishing a system of rules aimed at developing trade with a new Member State without interruption, to abandon a restrictive system (that of trade with third countries), which nevertheless allows exports by reason of the advance fixing, in order to adopt a system which was intended to be overtly more favourable, since it was rigid, and then once again to decide to abandon this latter in order to adopt flexibility in regulation No 229/73 without even making use of its correcting factor, advance fixing. The application of Article 55 (6) is also inconceivable for another reason. In departing from the principle of fixed compensatory amounts through the application of Article 55 (6), that is to say by making use of a compensatory amount of a variable type, the Council has not only disregarded Community preference, but also established a system favouring, in everyday commercial practice, cereal imports into the new Member States from third countries. In a rising world market this preference, given in practice to operators in third countries, arises in the following manner: when they import into Britain the levy which they have to pay, calculated as at the day of customs clearance, is lower and an additional benefit is granted to them over the price which they have fixed. The reverse process takes place for an exporter from an original Member State: the compensatory amount which he was to receive in trade with Britain is similarly reduced and he suffers a loss on his original price. The logical consequences of the system established by the Resolution of 20 July 1972 are that the Community has opted for the most simple system of rules. There is only one category of compensatory amounts fixed very clearly by the draft regulation as being the result of the difference between the two marketing prices. The draft does not mention Article 55 (6). In any case, if this paragraph had to be applied, the Community ought to provide, since it had established flexibility, the correcting factor for this, advance fixing. However, this exclusion appears logical since the Community has opted for the traditional solution in Community matters, That is to say price fixing and this solution sanctions respect for Community preference. The price fixing could be maintained in every case and does not constitute either a hindrance, distortion in the different kinds of trade or discriminatory dumping. The only objection would be of a bugetary nature in the financing of the EAGGF. c. The applicant's expectation has been disappointed. Not only is Regulation No 229/73 of the Council quite different from the draft annexed to the Resolution, but further it in no way safeguards the special position of the 1972/1973 marketing year. In comparing the two texts the applicant finds that the regulation of 31 January 1973 makes express reference to Article 55 (6) of the Act of Accession, which the draft regulation annexed to the Resolution of the Council of 20 July had passed over in silence. The applicant likewise observes that the regulation of 31 January 1973 introduces a flexible system of compensatory amounts. Under this new system it is the date of customs clearance which determines the level of the compensatory amount on the basis of the movement in world prices. The applicant concludes that the systems established by the Resolution and by Regulation No 229/73 are completely at variance. d. The wrongful act which the applicant complains of against the Council lies in the fact of having informed operators that rigidity would be the rule in intra-Community trade and then having totally altered the system by choosing flexibility although contracts entered into in good faith by operators on the basis of the original text were about to be performed. The regulations has a retroactive effect. It applies in effect to future exports, but these had their origin in contracts entered into under the system previously established by the Community. The applicant does not criticize the implementation of Article 55 (6) of the Act of Accession which is self-executing. It observes that the Resolution of 20 July 1972 has adopted a system outside the scope of this paragraph. Nor does it criticize the legality of the system implemented by Regulation No 229/73. Its real complaint is that the Council has successively adopted two radically different systems. e. As regards the EEC, the applicant contends that the Community's liability must be regarded as being widely defined, since, without there being express reference to misconduct, the Community shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties (Article 215 of the EEC Treaty). French law has defined these general principles in a well-established doctrine of government liability, in particular in the case of false indications or such as are not implemented, given by the administration; it is administrative misconduct capable of giving rise to this liability when the following conditions are fulfilled: the information has to be of an official nature; the indication has to be sufficiently precise; the person concerned has to have suffered damage directly resulting from the information; proof has to be given that there has been no negligence. In the applicant's opinion these conditions are clearly fulfilled in the present case. The applicant states that its conduct can not be criticized. It has acted precisely in accordance with the draft regulation of July 1972. It refers to cases of the French Conseil d'Etat and of the Court of Justice of the European Communities and in particular to the judgment of 14 July 1967 in cases Kampfmeyer and others (Rec. 1967, p. 318). It is incorrect to maintain, as the Council does, that misconduct consisting of incorrect information can arise only where the information is given individually as a result of a bilateral relationship between the person concerned and the administration. f. Confronted with the position created by Regulation No 229/73, the applicant immediately took the necessary measures to try to limit its loss, which amounts to FF 5728660·17 following the cancellation of certain contracts and payments of compensation for withdrawal, the completion of other contracts by the supply of equivalent products and finally the performance of other contracts resulting in a compensatory amount lower than that expected. It does not object to the hearing of experts, requested as an ancillary matter by the Council.

2. a. The Council First of all analyses the mechanism set in motion in implementation of the Act of Accession. It rejects the arguments of the applicant according to which the Council could have opted between two systems: either the application of Articles 51, 52 and 55 (1) or the application of the first paragraph of Article 55 (6). There is no incompatibility as alleged between the provisions referred to. The provisions are perfectly compatible inter se and the Community authority cannot dispense with the application of this or that where the conditions prescribed for its application are fulfilled. In the Council's opinion the comprehension of the system on which the applicant insists is based both on a wrong inrerpretation of Articles 51, 52 and 55 (1) and (2) and on a disregard of the scope of the first paragraph of Article 55 (6). The Council explains the significance of Articles 51, 52 and 55 (1) and (2) of the Act of Accession and states that the applicant exaggerates in claiming that the result of these provisions is that the markets of the new Member States are bound to that of the original Community in an immutable manner in such a way that on accession, the new Member States and the original Community henceforth form a single Community with the same price structure. Certainly from the legal point of view the systems are the same. On the other hand, from the economic point of view, this is not the case, since during the first six months of 1973 the British market was to remain at its previous level, which was that of the world market. b. As regards Article 55 (6), the Council states that it is necessary to ensure the relationship with the Community system of flexible protection at the frontiers and also to have regard to the principle of Community preference. It is necessary to see to it that the compensatory amount cannot be higher than the levy which it replaces. If the case is taken of export from a new Member State to the enlarged Community, which would have given rise before anlargement to payment to the Community of a levy, it would give rise since 1973 to payment of a compensatory amount. But this cannot be higher than the levy on third countries paid to the orginal Member States, for otherwise the new Member could not export. As a corollary for the export from the original Community to a new Member State, that is to say in general from an area of high prices to an area of lower prices, there is not payment but grant of a compensatory amount, and it is then necessary to see that this compensatory amount does not place the product from the exporting Member State in a too preferential position in relation to similar products from third countries. This is understood likewise in the light of the principles of GATT; if a compensatory amount were automatically paid, the exporting Member State could supply at less than world prices, which would seem difficult to justify (dumping). c. The Council rejects the three complaints by the applicant against Article 55 (6). There is no incompatibility between this provision and Articles 51 and 52. The first complaint is based on a false analysis since it exaggerates the rigidity of the Community mechanism in price fixing. The Council contends, as regards the second complaint, that even if the first paragraph of Article 55 (6) prohibits Community preference during the transitional period — and the Council doubts whether it has in fact such scope — there is nothing in this incompatible with Article 51 and 52, but only an express derogating provision in the Treaty as ratified. The Council recalls that the third complaint against the first paragraph of Article 55 (6) is that this provision is inapplicable if advance fixing is not introduced simultaneously. As regards wheat and barley, advance fixing was done by the original Community but only for a short term, in the present case, two months. It is therefore possible to take the view that advance fixing of compensatory amounts which would have been made only for this same period does not have the scope which the applicant attributes to it. The Council stresses that, since the Act of Accession was not in force in 1972, the mechanism of advance fixing could not be applied in a binding manner for the contracts in question here. d. The Council examines the implementation of Articles 51, 52 and 55 and first of all the extension to the new Member States of the common agricultural policy. It stresses that before the Treaty of Accession came into force there was no possibility of issuing texts implementing it. There is however a need to indicate the level of the compensatory amount arising under Article 55 (1). This is the reason for the Resolution to which was annexed the draft regulation formally to be issued after the accession of the new Member States. It is a question only of indicating the terms where the application of the Act of Accession requires the Community to establish certain facts. Although there is no such necessity with regard to the provisions of Article 55 (6), which the applicant recognizes as being self-executing, the same is not true of Article 55 (1) and (2). The Council is therefore justified in indicating the compensatory amounts, which incidentally, Regulation No 229/73 was not meant to alter, without drawing attention to the possibility that the other provisions might apply. The Council states moreover that in the Resolution it has indicated that the compensatory amounts were an application of Article 55 and that at no time was the first paragraph of Article 55 (6) admitted to be ruled out. The Council then examines the differences between the Resolution of July 1972 and Regulation No 229/73. It states that the applicant complains about the differences between the regulation and the draft of July 1972 and not about its provisions since the applicant recognizes their validity. The differences relate to three articles: Article 7 (establishment of the so-called scale system), Article 6 (possibility of instituting a system of advance fixing)and Article 9 (publication of the effective compensatory amounts). None of these complaints is consistent, for these innovations, save perhaps the third, do not constitute implementing measures of the first paragraph of Article 55 (6). Neither Article 7 nor Article 6 depend directly on the first paragraph of Article 55 (6) nor do they determine the application of it. On the contrary they rather have the effect of tempering the full force of it and in this respect they relate to the second paragraph rather than the first paragraph of Article 55 (6). Therefore the Council does not see how they are responsible for the applicant's damage. e. The Council then considers the power of derogation provided for in the second paragraph of Article 55 (6). It stresses that no application for derogation has been made either by the applicant or by anyone else. It considers moreover that it would not have been able, save in the event where an actual danger of deflection of trade or distortion of competition was submitted to it, to give a general scope to the power of derogation in the second paragraph of Article 55 (6). f. In these circumstances the legal basis of liability on the part of the Community has not been established. It states that in support of the alleged liability of the Community by reason of incorrect information or promises which have not been kept, the applicant bases itself, on the one hand, solely on French administrative case-law and on the other hand on the judgment of the Court in the case of Kampfmeyer. In the Council's opinion Article 215 constitutes an obstacle to the argument seeking to draw a legal principle from a single Member State. However this may be, an examination of the French case-law shows that its remedies do not lead in the present case to a declaration of liability on the part of the Community. The Council states, in particular that in French law liability on the part of the administration for false information or promises not kept is recognized only where the party wronged relies on a document addressed to it personally and formally communicating to it the information or promise. In the Council's opinion the case-law of this Court in regard to information or promises would appear to be no different. It refers to judgments of this Court of 9 December 1965, Usines de la Providence ([1965] ECR 911) and of 28 May 1970, Richez Parise (Rec. 1970, p. 325). As regards the judgment in Kampfmeyer, the Council states that it was the illegality of the Commission's decision of 3 October 1963 which had constituted the administrative misconduct so as to make the Community liable. It would therefore seem difficult to regard this judgment as a legal precedent for liability for false information. The Council states further that according to the case-law of the Court (Commission v Luxembourg and Belgium [1964] ECR 625) the Council Resolution of 20 July 1972 is without any legal effect of its own, so that in the absence of any special undertaking with regard to the applicant capable of making up for this lack of legal effect there remains only Regulation No 229/73. In regard to this the Community could be liable only in virtue of the case-law of the Court for compensation for damage arising from the exercise of legislative power involving the choice of economic policy. The Council is of the opinion that the conditions giving rise to liability on its part are not fulfilled. g. The Council considers that it has shown that it is not liable so that the question of the chain of causation, the directness of the damage, does not seem to it to require to be examined. It therefore reserves the right to deal, only should it be necessary, with the examination of the figures, which in any event an examination of the commercial documents submitted by the applicant in support of its claim for compensation would require. It also reserves the right to request investigation with regard to the operations in question.

1. The Council contends that there is no chain of causation between its conduct and the damage alleged by the applicant. The damage was the consequence of the imprudence of the applicant having regard to the short-term economic situation, the consequences of which could not have been unknown.

2. The applicant states that the supplementary observations of the Council continue the arguments already put forward and these arguments distort the basic question of the liability of Community institutions. It also states that the observations of the Council contain serious inaccuracies. It mentions only some of these inaccuracies which characterize the Council's defence.

1. The application lodged on 28 September 1973 seeks an order against the European Economic Community for the payment of FF 5728660·17 as compensation for damage the applicant claims to have suffered as a result of the system of compensatory amounts established by Article 55 of the Act annexed to the Treaty of 22 January 1972 concerning the accession of the new Member States to the Communities.

2. Articles 55 (1) (a) provides that in trade in certain agricultural products compensatory amounts shall be levied by the importing State and granted by the exporting State in order to compensate the differences in price levels which may exist until 1 January 1978 between the new Member States and the Community as originally constituted.

3. Article 56 (6), however, provides that the compensatory amount levied or granted by a Member State may not exceed the total amount levied by that Member State on imports from third countries, but at the same time the second paragraph gives the Council the power, on a proposal from the Commission, to derogate from this rule, in particular in order to avoid deflections of trade and distortions of competition.

4. In view of the fact that the Community rules in agriculture would apply to the new Member States as from 1 February 1973 and that the transitional measures provided for the adaptation of these States to the Community rules necessitated implementing measures, the Council, by Resolution dated 20 July 1972, agreed on a draft regulation which was to be formally adopted immediately after the entry into force of the Treaty of Accession and the text of which was annexed to the Resolution.

5. The fourth recital to the Resolution stated that it was essential that persons with an economic interest should have knowledge of the content of the implementing provisions forthwith in order to enable the transition from the national systems in the new Member States to the Community system to be carried out under the best possible conditions.

6. For trade with the United Kingdom the draft provided until 31 July 1973 a compensatory amount of 42·33 u.a. per metric ton for barley, which was also the amount applicable to denatured common wheat.

7. The draft contained no provision dealing expressly with the situation provided for in Article 55 (6) of the Act of Accession.

8. The Resolution, with the draft regulation annexed, was published in the Official Journal of the European Communities of 10 August 1972 in the C section under the heading Information.

9. Regulation No 229/73 of the Council of 31 January 1973 laying down general rules for the system of compensatory amounts for cereals, while fixing these amounts as provided for in the draft annexed to the resolution of 20 July 1972, expressly provided, in accordance with Article 55 (6) of the Act of Accession, that if the levy is lower than the compensatory amount, the Commission should apply the scale set out in the annex to the regulation to determine the amount applicable by way of compensatory amount.

10. On the basis of these provisions and following the increase in prices on the world market since the summer of 1972 the compensatory amounts actually applied since 1 February 1973 were lower than the amounts provided for by the draft regulation annexed to the Resolution of 20 July 1972.

11. In view of the Resolution of 20 July 1972 the applicant concluded during September 1972 contracts for export to the United Kingdom of barley and denatured wheat, the delivery of which was to take place between February and June 1973.

12. Since the applicant was not able to receive the amounts expected, it had to perform some of these contracts at a loss while others had to be rescinded or revised with the agreement of the purchaser, which likewise involved losses for the applicant.

13. The applicant begins with a general criticism of the system established by Article 55 of the Act of Accession.

14. This criticism relates in particular to the contradiction which exists between paragraphs 1 and 2 providing fixed compensatory amounts on the one hand, and paragraph 6 on the other hand, which introduces a flexible factor, and thus uncertainty, in that it provides that the compensatory amounts should vary according to the levies on imports from third countries, without it being possible to eliminate this uncertainty by means of advance fixing of the compensatory amounts in the manner of the system of advance fixing of the refunds applicable to exports to third countries.

15. Further, the system of variable compensatory amounts under paragraph 6 has the practical effect, in the new Member States and in a rising world market, of favouring imports of cereals from third countries in relation to those from the original Member States, which conflicts with the principle of Community preference which is at the basis of the common organization of the agricultural markets.

16. Since, however, the possible effects to which reference is made result not from the conduct of the Council but from the Act of Accession itself, which is an integral part of the Treaty concluded between the original and the new Member States, they cannot give rise to non-contractual liability on the part of the Community.

17. The applicant complains that the Council encouraged it, by the Resolution of 20 July 1972, to conclude contracts within the framework of a system involving fixed compensatory amounts, and then, by Regulation No 229/73, abandoned this system in favour of flexible compensatory amounts.

18. It is right to observe in this respect that the flexibility of the compensatory amounts results from the first paragraph of Article 55 (6) of the Act of Accession, according to which these amounts could not exceed the total amount levied on imports from third countries.

19. This provision applies automatically, so that it is not possible, by reason of the fact that the Resolution and the draft regulation annexed did not mention it, to impute to the Council an intention not to apply it.

20. Nevertheless, since the Council adopted the abovementioned Resolution with the object of informing and guiding commercial operators, it ought to have issued a reminder as to the provision in question and expressed reservations as to its possible application.

21. The omission to make the Resolution subject to such reservations, while explicable by the situation of the world market at the time, when the subsequent increase in prices was not yet foreseeable, was likely to distort the task of informing which the Council had assumed and was such as to make it liable.

22. It is right, however, to inquire whether there is a chain of causation between the behaviour of the Council and the alleged damage.

23. One must ask not only whether the conduct in fact caused the wrong impression on the applicant's part that the compensatory amounts would remain fixed in spite of Article 55 (6), but also whether it could and should have caused such an error in the mind of a prudent person.

24. It must be remembered that the contracts in question were concluded on 22, 25 and 26 September 1972.

25. Following the movement of prices on the world market the levies on imports from third countries began to be reduced at the beginning of August 1972, and reached, at the end of the month, a figure which, as regards barley, was lower than the compensatory amount provided for trade with the United Kingdom.

26. Regulation No 1847/72 of the Commission of 28 August 1972 (OJ L 197 of 29. 8. 1972, p. 1) fixed the levy at 40·74 u.a. per metric ton whereas the compensatory amount provided for by the draft regulation annexed to the Resolution of 20 July was 42·33 u.a. per metric ton.

27. The movement in prices moreover led the Commission to abolish, as from 16 September, refunds for cereals exports to third countries, including at the time the United Kingdom (Regulation No 1984/72 of the Commission of 15 September 1972, OJ L 213 of 16. 9. 1972, p. 12).

28. The applicant, as a prudent exporter, fully informed of the conditions of the market, was not unaware and in any event could not be unaware that such was the position at the time the contracts were concluded, and of the consequences which would result therefrom as regards the compensatory amounts.

29. Its subsequent correspondence with the Office National Interprofessionnel des Céréales, moreover, leaves no doubt in this respect.

30. With regard to this, mention may be made in particular of its letter of 12 October 1972, in which it expresses itself thus: … following a price movement which was as unforeseeable as it is exceptional… the Community levies risk being lower than the compensatory amounts. The latter are liable to be revised so that they do not exceed the levy in force; this follows from Articles 55 and 56 of the Act of Accession.

31. This letter confirms that the applicant was effectively in a position to appreciate the effect which an alteration in the conditions of the market could have on the application of the Articles referred to.

32. Accordingly the damage alleged has not been caused by the conduct of the Council.

33. The application must therefore be dismissed.

34. The applicant has failed in its application.

35. Under Article 69 (3) of the Rules of Procedure, where the circumstances are exceptional, the Court may order that the parties bear their own costs.

36. In the present case the Court has found that the conduct of the Council was such as to make the Community liable.

37. It is proper in the circumstances that the parties bear their own costs.

On those grounds, THE COURT hereby:

1 Dismisses the application;

2 Orders each party to bear its own costs.

1 Advance fixing was instituted by Regulation No 3280/73 of 4. 12. 1973, OJ L 337/73 of 6. 12. 1973).