Opinion of Mr advocate general Capotorti

Mr President,

Members of the Court,

1. This case raises the issue of the possible liability of the Commission in respect of measures adopted by it in regulations and of its treatment of a particular undertaking in connexion with the management of the common organization of the market in beef and veal.

2. Before that last regulation entered into force, that is to say, before 14 May 1975, the German undertaking IFG-Intercontinentale Fleischhandelsgesellschaft entered into a contraa with a Romanian State undertaking for the purchase of 6000 tonnes of prepared beef and veal. The place to which the product was to be delivered was not stated in the contract. There does not, however, appear to be any doubt that IFG completed the purchase with a view to importing the meat into Germany, where it would have been used in the preparation of sausages. This is borne out, in particular, by the fact that, after supplying the vendor with machinery to be installed in Romania for preparing the meat, the purchaser requested and obtained the consent of the Federal Minister of Health in relation to that installation subject to prior health inspection by a veterinary officer authorized by the German authorities.

3. The defendant first raised an objection of inadmissibility against the first head of claim on the ground that its effect is to request it to exempt the applicant from the application of general rules, that is to say, to adopt a provision which the Commission has no power to adopt. Furthermore, again according to the defendant, the applicant is, by means of an action submitted in the form of an application for damages, attempting to obtain what it could and ought to have sought by means of an action for failure to act.

4. Consideration must now be given to the other claim advanced in the application, which is that the defendant be ordered to compensate for the loss of profit arising from the fact that it was virtually impossible, as a consequence of Regulation No 2033/75 of the Commission, for the applicant to perform the contract of 14 May 1975. It must, therefore, be ascertained whether the Commission adopted a provision or behaved in a way which might involve the Community in liability for the damage which the applicant claims to have sustained. In this connexion the legal issues to be considered are naturally the same as those which would have called for consideration in connexion with the principal claim, had that claim been held to be admissible.

5. In the reply the applicant for the first time contended for the illegality of Article 1 (4) of Regulation No 2033/75, that is to say, the provision which made importation of the product in question subject to the EXIM system defined in Regulation No 1090/75. The applicant claims that there was no authority for this measure in Article 21 (2) of Regulation No 805/68 on which, as we have seen, the Commission's power to adopt protective measures is founded.

6. At this juncture the issue becomes one of determining whether the Commission acted illegally or at least was responsible for an act or omission capable of making the Community liable for the alleged damage when it refused to exempt the applicant from the application of Regulation No 2033/75 in respect of the imports which the undertaking had contracted to carry out before 1 September 1975 but did not succeed in carrying out owing to the exceptional events which took place in Romania in the summer of 1975.

7. The applicant further claims that the Commission ought to have extended the application of Article 2 of Regulation No 2033/75 so as to allow for cases of force majeure. It is not clear whether this criticism refers to the wording of the article or merely to its application. If the applicant intended to attack the wording of the provision (because the Commission did not draft it so as to enable the application of the regulation to be deferred in the event of force majeure preventing the execution, by 1 September, of contracts previously entered into) this would invite the comment that the Commission is not bound to include a clause relating to force majeure in each and every one of its regulations. If there were a general principle recognizing that force majeure had legal effect, there would be no need to confirm it in every regulation. On the other hand, in the absence of a general principle to that effect, the Community authority would, in the exercise of its legislative functions, be free to attach or not to attach importance to force majeure.

8. For the reasons which I have explained, I recommend that the Court should dismiss as inadmissible the first head of the application relating to the so-called reparation in kind, declare to be unfounded that part of the application for loss of profit and order the applicant to pay the costs.

1 Translated from the Italian.