Opinion of Mr Advocate-General Trabucchi

Mr President,

Members of the Court,

1. The machinery of compensatory amounts introduced by Regulation No 974/71 of the Coucil of 12 May 1971 (OJ L 106, p. 1), which has already engaged the attention of the Court, was made applicable to colza and rape seeds by Regulation No 1471/71 of the Commission of 9 July 1971 (OJ L 154, p. 26). This extension was made on the basis of the statement that it had proved to be necessary to apply the compensatory amounts in respect of the new harvest of those products the marketing of which is due to start at the beginning of the marketing year. When the application of the system of compensatory amounts was extended to France the Commission, in Regualtion No 17/71 of 31 December 1971 (OJ L 5, p. 1), laid down the compensatory amounts applicable with effect from 3 January 1972 to trade in the products concerned between France and third countries; provision was made for payment of compensatory amounts on exports and for a corresponding levy on imports into France. By Regulation No 144/72 of 21 January 1972 (OJ L 19, p. 1), the Commission increased these amounts with effect from 24 January. However, in Regulation No 189/72 of 26 January (OJ L 24, p. 25) the Commission revoked, with effect from 1 February, the compensatory amounts applicable in the sector concerned giving as its reason that the present situation of the market is such that application of the compensatory amounts is no longer necessary to avoid disturbances of the market in the products concerned.

2. The greater part of the loss alleged by the applicant is indirectly connected with the aid for oil seeds harvested and processed in the Community, for which provision is made in Article 27 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 (OJ 172 of 30. 9. 1966, p. 3025). This form of Community aid, which is reminiscent of the British system of deficiency payments, was provided for oils and fats in lieu of the levy because, in view of the extremely low level of production of fats of vegetable origin within the Community, the introduction of the levy in this sector did not appear to be desirable. The amount of supplementary aid is equal to the difference between the target price and the world market price, which is usually lower.

3. The other part of the alleged damage concerns failure to pay compensatory amounts on the exportation of 8000 metric tonnes of produce in respect of which the applicant had obtained an advance fixing of the export refund as provided for under Article 28 of Regulation No 136/66 of the Council, referred to above. In this case, the loss is the exact equivalent of the total amount of the payment which the exporter failed to receive in respect of the quantity for which, during, the period when compensatory amounts were in force, he had optained an advance fixing of the export refunds, and which he had been relying upon when the contract of sale was concluded.

4. In support of his claim, the applicant in the first place contends that there has been an infringement of Article 7 of Regulation No 974/71 of the Council. That Article provides as follows: Partial or temporary use may not be made of the authorization provided for in this Regulation.

5. The applicant further maintains that unconditional revocation of these amounts, on the basis of which it had assumed commitments relating to the sale in third countries of 8000 metric tonnes of goods, did not take account of its legitimate expectations and, furthermore, infringed the right it had acquired to have applied to it the system in force at the time when the export refunds were fixed in advance.

6. The question which remains to be considered is whether the general need to ensure that confidence is not misplaced and that dealings proceed on a secure basis may, in the present case, justify recognition that, by abolishing the compensatory amounts in fats and oils without adopting transitional measures designed to protect interested private parties who could reasonably have relied on receiving the compensatory amounts applied at the time when they concluded a contract of sale, the Commission committed a wrongful act or omission of such a nature as to make it liable for the losses which are a consequence of it.

7. The first condition on which it is possible to envisage such protection, in terms of an action for damages in respect of harm unlawfully caused to a private interest, is that it can be regarded as compatible with the objectives sought by the provision directly responsible for the loss.

8. When the public interest so requires, there can be no doubt that the interests of individuals, even if they form a group of some size, must take second place. But when, apart from mere book-keeping considerations, there is no need or point in sacrificing individual interests and frustrating legitimate expectations, may it be argued that, in the Community legal order, there exists a general principle which requires the institutions of the Community to adopt appropriate measures to safeguard those interests? I believe it would be dangerous to try and give a general answer to such a wide-ranging question. On the contrary, it can be answered more conveniently and satisfactorily as and when it arises in respect of well-defined sectors in the context of the conditions which led to adoption of the provision which changes the previous arrangements.

For these reasons, the applicant firms claim for damages must be regarded as unfounded.

The application must, therefore, be dismissed. The applicant must pay the costs.

1 Translated from the Italian.