Opinion of Mr Advocate General Mayras

Mr President,

Members of the Court,

On 18 and 19 March 1975 the applicant sugar exporting company, with its registered office in Antwerp, entered into two contracts of purchase, one with a dealer and the other with a manufacturer, for the supply, respectively, of 1000 tonnes of French sugar to be delivered between October and December 1975 and for 5000 tonnes to be delivered between October 1975 and May 1976.

At that time exports of sugar were subject on leaving France to the imposition of compensatory amounts due to the fluctuation of the French franc since it had left the monetary snake on 19 January 1974, whereas exports of sugar from Belgium to third countries benefited from the grant of such amounts.

It seems that the sugar, the subject of those transactions, was ultimately intended for export to third countries with the benefit of the refunds and the compensatory amounts granted on leaving a Member State with a green rate which had been revalued in relation to the green rate of the French franc.

Meanwhile, in May 1975 the French franc returned to the snake: this monetary event led to the abolition of the imposition of the compensatory amounts and the first deliveries intended for the applicant were therefore not subject to the payment of such amounts on leaving France.

The return to the snake, however, was not to last very long; on 15 March 1976 the French franc once again left it and its floating brought about the reintroduction of compensatory amounts as from 25 March 1976. The Court will still have in mind these facts which were at the origin of Joined Cases 12, 18 and 21/77, Debayser and Others, on which it gave judgment on 2 March last.

From February 1976 the applicant had entered into forward currency contracts for the purchase of the French francs necessary for the payment of the sugar remaining to be delivered.

In reliance on the currency cover thus made and the fact that its price was then definitely fixed, the applicant requested the French Intervention Agency (the Fonds d'Intervention et de Régularisation du Marché du Sucre) that the regulation to ensure natural justice, Regulation No 1608/74 of the Commission of 26 June 1974, should be applied to it in respect of the amounts of sugar remaining to be imported and cited Article 4 of that regulation; in the applicant's view the currency contracts gave it an acquired right to exemption from the compensatory amounts in respect of such deliveries.

It is right to observe that it is not the French seller who is complaining of the imposition in France of compensatory amounts; he succeeded in obtaining indemnity from his purchaser for the payment of such amounts under a clause in the agreement. The applicant admits itself bound by that undertaking. However, as I shall make clear later, I shall query the relevance of such a clause for the purposes of the present proceedings. It seems to me that the French sellers would have been better placed than the Belgian buyer to challenge the levying of those amounts, and the fact that a French exporter did not himself start by making an approach to the national authorities led the Court in the cases of Debayser and Others to declare inadmissible an application for damages brought directly against the Commission. I scarcely see how the fact that the burden of the compensatory amounts has been displaced in the present case onto the Belgian buyer can render its application admissible when, as we shall see, the French authorities have not given it their support.

On 25 August 1977 the French Intervention Agency replied to the applicant, with confirmation on 30 September 1977, that:

In turn the Director General for Agriculture of the Commission, in reply to a letter from the applicant, informed it on 7 October 1977 that it should apply directly and in the first place to the French authorities in order that they might, if necessary, give a statement of reasons for the decision taken. In addition he confirmed that the reasons given by the French Intervention Agency closely reflect the views of the Commission.

In the present application the applicant is asking the Court in the first place to annul the alleged decision of the Commission taken under Article 4 (2) of Regulation No 1608/74 and alternatively to order the Community to pay it as compensation 134736.60 together with interest.

I —. The claim that the decision taken by the Commission should be annulled.

II —. Allow me to say, however, that the claim for compensation appears to me on the other hand prima facie admissible, though in my view obviously unfounded.

My opinion is that the application should be dismissed and that the applicant company be ordered to bear the costs.

1 Translated from the French.