Opinion of Mr advocate general Mayras

Mr President,

Members of the Court,

I —. This case concerns an action for damages brought under Article 178 and the second paragraph of Article 215 of the EEC Treaty by a German limited partnership against the Commission on the grounds that performance of a contract which it had entered into with the Romanian State undertaking Prod-export was made excessively onerous by the effect of Council Regulation No 425/77 of 14 February 1977, published in the Official Journal of the European Communities on 5 March 1977.

II —. The Commission first of all contends that the primary claim is inadmissible: it states that it is required to apply the existing rules and that an action for compensation cannot be used to obtain the adoption of a legislative measure involving an exception to those rules. Such an aim may be pursued only by way of Article 175 of the Treaty, which has not been pleaded in this case.

III —. (1) I shall consider first, not whether Council Regulation No 425/77 is illegal, a ground of complaint which was not pleaded and on which it is not possible to give a ruling in the absence of the institution which adopted the regulation, but whether the Commission by omitting to use Article 7 of Regulation No 425/77 caused the applicant damage of such a kind as to incur non-contractual liability. That article provides: Should transitional measures be necessary to facilitate the implementation of this regulation, in particular if such implementation on the date provided for were to give rise to substantial difficulties in respect of certain products, such measures shall be adopted in accordance with the procedure laid down in Article 27. They shall be applicable until 31 December 1977. The reference is to Article 27 of the basic Regulation No 805/68, which concerns the well-known Management Committee procedure. On this first point I should like to refer to what I said in my opinion in the Bainne case about that procedure and in the Debayser case about the discretionary relief regulation, and express the view that this case does not supply an appropriate framework for examining whether the Commission had a duty to make use of the power conferred on it by Article 7 and that at all events the Commission's non-contractual liability cannot be brought into the issue in that context: the Commission did not act illegally by refusing to apply Article 7 in the way desired by the applicant. The applicant does not go so far as to maintain that Article 7 is illegal to the extent to which it does not confer on the Commission a competence lieé (a power which must be used in a certain way as opposed to a power which may be used at its discretion). Even if that were the case, I could not examine such an objection of illegality in the context of this action, and moreover any such illegality would concern the Council and not the Commission. Even the requirements of natural justice, which were considered in the judgment of 1 February 1978 in the Luhrs case, would not be sufficient grounds for admitting the existence of such a duty on the pan of the Commission. In dealings between individuals and Community administrative authorities, such as those in this case, where, far from entailing non-performance of any obligation on the part of individuals, the charging of the levy results only in less favourable treatment for the imports concerned than that prevailing before the introduction of the levy, no general principle of law — and still less of natural justice — having the scope alleged can be deduced from the domestic legal orders of the Member States.

IV —. It remains to be considered whether the introduction of a system of levies in respect of the products at issue is contrary to the combined provisions of Articles 39 and 110 of the Treaty, and especially to the rules as to binding in the General Agreement on Tariffs and Trade (GATT). It should be noted once again that this complaint is directed at Council Regulation No 425/77. Subject to any observations which the Council may make, I would make the following remarks:

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

1 Translated from the French.