Opinion of Mr Advocate-General Reischl

Mr President,

Members of the Court,

Under the provisions relating to the common organization of the market in sugar which are laid down in Regulation No 3330/74 (OJ L 359 of 31. 12. 1974, p. 1) a refund is granted on the export of sugar outside the Community having regard to the level of the world market price. It may be fixed in advance in the export licence which is necessary for the exportation. It is fixed in national currency if an invitation to tender is held for the purposes of the exportation.

In accordance with the abovementioned provisions and on the basis of the standing invitation to tender for white sugar provided for in Regulation No 2101/75 (OJ L 214 of 12. 8. 1975, p. 5) in the context of which weekly partial invitations to tender were held, the applicant in the present proceedings, an export undertaking having its registered office in Belgium, received in the spring of 1976, before 15 March 1976, export licences with a refund fixed in advance for certain amounts of sugar. In accordance with Regulation No 2101/75 which provides that an export licence is valid from the day of issue until the end of the fifth month following that during which the award was made some of the licences issued to the applicant were valid until 31 July and some until 31 August 1976. As is usual in such cases under the law governing the organization of the market the applicant had to lodge a deposit to guarantee that the export would be carried within the period of validity of the licences.

After the issue of the licences the Council adopted Regulation No 557/76 on 15 March 1976 (OJ L 67 of 15. 3. 1976, p. 1) in which new representative rates were fixed in the agricultural sector differing from those set out in Regulation No 475/75 (OJ L 52 of 28. 2. 1975, p. 1) inter alia for Belgian francs. These rates became applicable for the market in sugar from the beginning of the new marketing year, that is, from 1 July 1976.

In view of this Article 5 (1) of Regulation No 557/76 provides that: The provisions of Regulation (EEC) No 1134/68 (OJ, English Special Edition, 1968 (II), p. 396) in respect of an alteration of the relationship between the parity of the currency of a Member State and the value of the unit of account shall apply. In this respect it should be pointed out that the following provision is laid down by Article 4 (1) of the latter regulation:

In addition the second subparagraph of Article 4 (1) provides that:

With regard to the second subparagraph of Article 4 (1) of Regulation No 1134/68, Article 5 (2) of Regulation No 557/76 further provides that it shall apply only if the application of the new representative rates is disadvantageous for the party concerned.

Furthermore on 15 March 1976 Commission Regulation No 571/76 (OJ L 68 of 15. 3. 1976, p. 1) was adopted in implementation of Regulation No 557/76. Article 1 of that regulation provides that with respect to products for which a monetary compensatory amount is fixed, cancellation of the advance fixing and the relevant document or certificate as provided in the last subparagraph of Article 4 (1) of Regulation (EEC) No 1134/68 may be applied only in the case of export licences issued in Germany, Belgium, Luxembourg and the Netherlands. With regard to the last subparagraph of Article 4 (1) of Regulation No 1134/68, Article 2 of Regulation No 571/76 further provides that it shall apply to the products and Member States concerned with effect from the dates set out in Article 2 (2) of Regulation No 557/76, that is to say, for sugar from 1 July 1976. In addition Article 2 (2) of Regulation No 571/76 provides that: The said provisions shall apply only to advance fixing and to the relevant documents or certificates issued before 15 March 1976.

A short time after the adoption of these rules the applicant, as it has stated to this Court, decided to avail itself of the opportunity of obtaining cancellation of the licences and it alleges that it made corresponding business arrangements. Accordingly on 1 July 1976 it submitted an application to the competent Belgian authority, the Office Central des Contingents et Licences (Central Office for Quotas and Licences), an application for the cancellation of licences in respect of a partial consignment of 11000 tonnes of sugar.

However the application was not accepted for the following reasons:

On the grounds that there existed a fear that if the right of cancellation were widely exercised it could seriously hinder good Community administration of a given agricultural market, a fear which with regard to the market in sugar resulted from the drop in world market prices and a corresponding substantial increase in the rates of refund, on 22 June 1976 the. Council adopted Regulation No 1451/76 (OJ L 163 of 24. 6. 1976, p. 5) amending Regulation No 557/76. By virtue of this regulation a subparagraph is added to Article 5 (2) of Regulation No 557/76 providing that:

On the basis of that provision on 30 June 1976 the Commission adopted Regulation No 1579/76 containing special detailed rules of application. It was published in Official Journal L 172 of 1 July 1976 on page 59 and also entered into force on that day. Article 1 (1) of that regulation provides that:

The compensatory amounts for the individual Member States are contained in an annex to that regulation; for Belgium they were FB 10 per 100 kilograms of white sugar. Furthermore Article 1 (2) of Regulation No 1579/76 provides that:

For various reasons which I shall go into in more detail later the applicant believes that these measures are not valid in law. For that reason on 16 September 1976 it initiated proceedings before the Court of Justice and claims that the Court should:

By this means it seeks to keep open the possibility of cancellation which was originally provided for and to prevent the deposits lodged by it from being declared forfeit for failure to use the licences.

Before I commence my examination of these applications I may further mention that the applicant has also lodged an application in accordance with Article 83 of the Rules of Procedure and was therein successful to the extent that by Order of the President of 19 October 1976 it was ordered that the Commission should instruct the competent Belgian authorities not to order the deposit forfeit until the issue of final judgment in these proceedings.

In addition in the assessment of the case it is perhaps relevant that in view of the difficulties which individual exporters faced because of the measures described above on 27 July 1976 the Commission adopted Regulation No 1811/76 (OJ L 202 of 28 July 1976, p. 8) and thereby extended the period of validity of the export licences at issue until 30 September 1976.

I —. At the beginning of my examination of the present case I must make some observations as to the admissibility of the application and the related questions which can most usefully be examined before the examination of the main issue.

1. I can deal very briefly with the requirement set out in Article 173 of the EEC Treaty for actions by natural and legal persons that the contested measure must directly and individually concern such applicants. It is clear that in the present case there is no problem in this respect. In the statement of the facts of the case it became clear that the contested regulation only applies to export licences which were issued in the Federal Republic of Germany and in the Benelux countries before 15 March 1976 and which had not yet been used on 1 July 1976. If one considers that in view of the period of validity of the licences they must have been issued after 1 February 1976 there is a limited and precisely ascertainable number of persons concerned. In reality — and in this respect the case is reminiscent of the facts in Joined Cases 41 to 44/70 (NV International Fruit Company and Others v Commission of the European Communities [1971] ECR 411) — there exists a conglomeration of individual decisions which are merely contained in the form of a regulation. However as there can be no doubt that the applicant belongs to the group of persons individually and directly concerned there exists in this case, as in the abovementioned case, no ground for declaring the application inadmissible for failure to comply with the abovementioned condition laid down in Article 173 of the EEC Treaty.

2. Further as the Commission raised doubts in this respect it should be asked whether the period for bringing proceedings, under Article 173 of the EEC Treaty, two months from the notification of the contested measure, has been observed.

3. The Commission has further raised the question whether in a case such as the present it would not have been appropriate to bring proceedings before a national court, possibly against the refusal of the application for cancellation or the order for forfeiture of the deposit, and to leave it to that court to refer the case to the Court of Justice under Article 177 of the EEC Treaty in order to examine the validity of the Commission regulation at issue.

4. In conjunction with the problem referred to above the Commission has further raised the question whether the applicant is not in fact seeking payment of full indemnification by the Communities because the compensation introduced by Commission Regulation No 1579/76 does not cover the whole of the profit expected by the applicant. In the view of the Commission this question must also be raised in view of the fact that the ground of action relied on by the applicant of the breach of its legitimate expectation in fact — at least in accordance with previous practice — comes under proceedings concerning the liability of public bodies or their servants.

5. Finally the Commission has further raised doubts as to the fact that the action is solely directed to the annulment of Article 1 (2) of Regulation No 1579/76, that is the annulment of the abolition of the right of cancellation applicable to export licences. Therefore the possibility of compensation provided for in Article 1 (1) of the above-mentioned regulation should remain which would in reality amount to the right to choose either cancellation of the licences or compensation. Against this it is clear that the Commission regulation is an inseparable whole; the abolition of the right of cancellation was necessarily linked to the introduction of the compensation as even the enabling Council Regulation No 1451/76 clearly refers to the replacement of the possibility of cancellation by a right to compensation. It is my impression that it is not necessary to examine this problem in connexion with the examination of the admissibility of the action. For the present it is sufficient that the applicant, who only wishes to make use of the possibility of cancellation which previously existed, seeks a ruling that the abolition of the right of cancellation is unlawful and that this head of claim cannot be regarded as inadmissible. If it were to appear that the application is well founded it would be necessary to examine the further question whether part of the contested regulation can be valid or whether it must be annulled in its entirety, while possibly retaining certain effects under Article 174 of the EEC Treaty; this further question would have to be examined in conjunction with the examination of the substance of the case to which I shall now immediately turn.

II — The substance of the case

In support of its application the applicant argues principally that the rules laid down in the middle of March 1976 created rights for the licence holders concerned. These merit absolute protection as vested rights and therefore their subsequent abolition is inadmissible as it is incompatible with the principle of legal certainty. In the alternative the applicant takes the view that the persons concerned were entitled at least to rely on the fact that from 1 July 1976 they could have their licences cancelled and in reliance on that fact they were entitled to make corresponding arrangements. This expectation too deserves protection. Infringement thereof could in any event have been considered on the grounds of overwhelming public interest but this does not exist in the present case.

1. First it is necessary therefore to examine whether the legal position existing after the middle of March 1976 with regard to the possibility of cancellation of export licences can in fact be referred to as acquired rights held by licence holders.

2. However is it possible that the regulation in question infringes the legitimate expectations of exporters who were entitled to assume that from 1 July 1976 the cancellation of export licences would be possible and who, in reliance thereon, have made certain arrangements?

3. Accordingly it only remains for me to examine whether a different view should be taken because the amendment of the law decided on on 30 June 1976 entered into force on 1 July but by reason of the belated delivery of the Official Journal only became known to the plaintiff on 2 July 1976, that is after it had made use of its right of cancellation by submitting applications to the competent Belgian authority.

III —. Finally the only possible conclusion is that the application must be dismissed not as being inadmissible but as being without foundation. In view of this result the applicant must bear the costs of the proceedings.

1 Translated from the German.