Opinion of Mr advocate-general Mayras

Mr President,

Members of the Court,

In February, March, April and May 1976 the Kommanditgesellschaft in Firma Merkur, Hamburg, concluded a certain number of contracts by which it undertook to sell to certain Danish companies and one United Kingdom company considerable quantities of pellets of tapioca containing added molasses, for which it obtained from the competent German authorities on 28 April 1976 a notice classifying the goods in question under tariff subheading 23.07 B I (c) 1 (sweetened forage containing more than 30 % by weight of starch and no milk products). That certificate did not in itself entitle the applicant to any right to an export refund.

Manioc, the product which is used in the manufacture of tapioca, falls within heading No 07.06 when it is in root form and heading No 11.06 when it is in the form of flour.

The products listed under the headings Nos 07.06 and 11.06 and subheading 23.07 B I (c) 1 are governed by the common organization of the market in cereals (processed cereal-based products).

As you are aware, on 12 May 1971 the Council adopted Regulation No 974/71 authorizing the Member States which, for the purposes of commercial transactions, allow the exchange rate of their currencies to fluctuate temporarily by a margin wider than that permitted by the International Monetary Fund, to charge on imports from Member States and third countries and to grant on exports to Member States and third countries compensatory amounts on certain specific agricultural products under conditions fixed by that regulation. This is known as the system of monetary compensatory amounts.

The detailed rules for the application of Regulation No 974/71 were fixed for the first time by Regulation No 1013/71 of the Commission of 17 May 1971. It is by that means that the Federal Republic of Germany was authorized to resort to the system of monetary compensatory amounts. The list of products to which the machinery for the monetary compensatory amounts could apply was adopted for the first time by the Commission in Regulation No 1014/71 of the same day. The products listed under subheading 23.07 B I (c) 1 were included in that list.

The system was extended throughout the whole of the Community by Regulation No 2888/71 of the Commission and, although optional to start with, it became compulsory in December 1972 following the adoption of Regulation No 2746/72 of the Council of 19 December 1972.

Secondly, the Act annexed to the Treaty relating to the accession of the new Member States provides, especially for the cereals sector, for a system intended to compensate the difference in level between the prices fixed for the new Member States and the common prices in the old Member States. That is the so-called system of accession compensatory amounts.

The general rules applying to the system of accession compensatory amounts in the cereals sector were adopted for the first time in Regulation No 2757/75 of the Council of 29 October 1975.

At the time when Merkur concluded the contracts in question the products which it was proposing to manufacture and export benefited from the following compensatory amounts:

On 8 March, 1 April and 14 April 1976 the applicant exercised its right (under Regulations Nos 3280/73 and 1580/74 of the Commission) to fix in advance, subject to the lodging of security, the accession compensatory amounts applying to the export to the United Kingdom of 5000, 750 and 2100 metric tons of the product in question. The validity of the advance-fixing certificates expired on 31 July and 31 August 1976 respectiveley.

On 23 June 1976, in accordance with the opinion of the Management Committee for Cereals, the Commission adopted Regulation No 1497/76 on the application of accession compensatory amounts and monetary compensatory amounts for certain cereal-based compound feedingstuffs. The French version of Article 1 of that regulation reads as follows:

That regulation was published in the Official Journal of the European Communities of 26 June 1976. Under the terms of Article 191 of the Treaty, in the absence of any provision to the contrary, regulations shall enter into force on the twentieth day following their publication. Article 3 of the foregoing regulation provides that it shall enter into force on the fifteenth day following its publication, that is, on 11 July 1976.

The French version of Article 1 of that regulation is inaccurate and must be corrected in the following way:

No correction was published in the Official Journal of the European Communities but the applicant, who was in possession of the correct German version of the regulation, was not misled: in plain language the regulation meant that for the products which it was proposing to dispatch to the United Kingdom and Denmark after 11 July 1976 the applicant would obtain no more than the monetary compensatory amounts applicable to products falling within subheading 07.06 A, which, since no monetary compensatory amount was paid on the importation of those products into the United Kingdom, meant in practice 0 u.a.

The accession compensatory amounts applicable to the products listed under that subheading amounted to 0.93 u.a. per metric ton for Denmark and 4.51 u.a. per metric ton for the United Kingdom, which is only one-quarter of those applying to subheading 23.07 B I (c) 1.

As, when Regulation No 1497/76 entered into force, the applicant had not yet performed in full the contracts which it had concluded, it took steps to limit the losses, or rather the absence of profit, brought about by the introduction of the new rules by negotiating with its clients either the termination of the contracts or the alteration of their terms. The applicant claims, however, that despite all its efforts, it suffered a loss amounting to DM 168185.20, which (without taking account of the interest) it asks you to order the Commission to pay as compensation, on the ground of its alleged liability for a legislative measure.

Before going into the legal question of the existence of extracontractual liability on the part of the Commission in the present case let me make it clear that the problem does not arise in relation to the accession compensatory amounts. The applicant could have exported the remaining quantities which it had undertaking to deliver without obtaining the monetary compensatory amounts applying to exports from the Federal Republic of Germany but receiving the accession compensatory amounts for which it had obtained, subject to giving security, advance-fixing certificates covering the deliveries which it intended to make to the United Kingdom and which, according to your judgment of 14 May 1975 in Case 74/74 (Comptoir National Technique Agricole (CNTA) S.A. v Commission of the European Communities [1975] ECR 533), covered traders against the risk of the abolition or modification of those amounts.

If the applicant decided not to make the deliveries in question and not to avail itself of the possibility of advance-fixing, it did so in full knowledge of the facts. It considered that the loss which it risked incurring by renegotiating the terms of delivery was less than that which would have been brought about by the performance in full of the original contracts, even with payment of the accession compensatory amounts fixed in advance, and it cannot put forward a claim based on the loss of both the monetary compensatory amounts and the accession compensatory amounts.

I —. The applicant does not contest the fundamental right of the Commission to adopt a measure such as Regulation No 1497/76, that is, to alter, or even to abolish, the monetary compensatory amounts. It rather criticizes the absence of appropriate transitional provisions, at least as regards contracts which have been shown to be binding, and the consequent damage to the legitimate expectation of traders which was caused by the Commission despite the absence of any overriding matter of public interest forcing it to act as it did. The defendant was aware from its correspondence and telephone conversations with Merkur that its regulation only concerned that company and it had been warned by the applicant that as a result of the allegedly very complex method of manufacture of the product in question there was no risk that the applicant would profit from the transitional period, which it was urging the Commission to fix, to conclude and perform new contracts. The applicant considers, therefore, that it would have been fair to fix a transitional period for the entry into force of the regulation, such period expiring on 15 August or, at the earliest, on 31 July 1976. By refusing to allow that period the defendant committed a flagrant violation of a superior rule of law for the protection of the individual which, according to your case-law, is the condition which must be satisfied before a claim for compensation is justified.

II —. The idea behind the system of monetary compensatory amounts, as established by Regulation No 974/71 and subsequent enactments, is that thetemporary widening of the margins of fluctuation for the currencies may entail a disruption of the intervention system laid down by Community rules in the Member State concerned and abnormal movements of prices jeopardizing a normal trend of business in agriculture. As regards derived products, such as those in question in this instance, for which no intervention is provided, monetary compensatory amounts must only be applied where the incidence of the monetary measures would lead to difficulties. Their amount is limited to what is strictly necessary to compensate the incidence of the monetary measures on the prices of the basic products (Article 1 (2) and (3), Article 2 (2)).

III —. The practice of the Commission with regard to the time-limits attached to the revocation or reduction of the financial benefits or burdens which the monetary compensatory amounts constitute are an illustration of the dual character.

IV —. I therefore consider that, as the Commission appears to admit in its last statement, no overriding matter of public interest justified the abolition, with immediate effect, of the compensatory amounts granted until then, or prevented the interests of traders who acted in good faith from being taken into account

I am therefore of the opinion that the application should be dismissed and that the applicant should be ordered to pay the costs.

1 Translated from the French.

2 Translator's note: the English text does not require correction.