Opinion of Mr Advocate General Reischl

Mr President,

Members of the Court

We have today to concern ourselves with facts which, at least in their essential details, are already known from Case 112/80 Firma Anton Dürbeck v Hauptzollamt Frankfurt am Main [1981] ECR 1095.

They relate to protective measures against imports of apples from Chile which were adopted in the spring of 1979 by Regulations No 687/79 (Official Journal 1979, L 86, p. 18), No 797/79 (Official Journal 1979, L 101, p. 7) and No 1152/79 (Official Journal, L 144, p. 13).

The applicant in the present proceedings brought an action with regard to those regulations in the Hessisches Finanzgericht [Finance Court, Hesse], which by order dated 24 March 1980 requested this Court to rule on the validity of the said three regulations. After proceedings of which it must be said that they were conducted very thoroughly (the Court twice directed questions to the parties to clarify the facts), the preliminary ruling was given on 5 May 1981 to the effect that consideration of the question raised had disclosed no factor of such a kind as to affect the validity of the regulations.

Even before the conclusion of those proceedings, namely on 21 January 1981, the applicant brought a direct action for compensation before the Court based on Article 215 of the EEC Treaty, and it is that action with which we are concerned today. The object of the action is described on page one of the application. The action is concerned with compensation for the damage which the applicant has suffered and will suffer through the introduction of protective measures against imports of dessert apples from Chile by means of Regulation No 687/79, as amended by Regulations Nos 797/79 and 1152/79.

In particular (cf. p. 10 et seq. of the application) the following damage is alleged to have been caused to the applicant by the Commission:

That amounts to a total of 506850 US dollars. The main claim originally sought an order that the Commission pay the applicant that sum together with interest at 6% from the commencement of the proceedings. Subsequently, in view of the Commission's objection that the applicant had not suffered any damage, the applicant supplemented its claim in the reply by pleading in the alternative that the Commission must pay the said compensation when the applicant accepts such liability or is the subject of a court order to that effect.

Moreover, the applicant fears further damage since its Chilean supplier has given notice that the owners of the chartered ship are seeking compensation and in addition a certain sum is being sought by the Association for the Protection of German Shipowners, a claim which is still being contested in Chile. In this regard, the applicant is claiming a declaration that the defendant is under a duty to compensate it for any additional damage which may arise as a result of the introduction of the contested protective measures.

Those claims, which the Commission considers should be rejected as inadmissible or in any event unfounded, were maintained after the aforesaid preliminary ruling was given. At the hearing the applicant simply explained that it was not pursuing a number of submissions relating to the alleged unlawfulness of the measures adopted by the Commission. It remains, however, of the opinion that the Commission has disregarded the principle of the protection of legitimate expectation and the prohibition against discrimination and for that reason should pay compensation to the applicant. Moreover, it sought at the hearing to show that its claim is justified even if the conduct of the Commission is assumed to be lawful, because, since it is a case of expropriation and interference in trade, the Commission should compensate the applicant for the special damage suffered by the applicant over and above that affecting all other importers.

My opinion on the case is as follows:

1 Translated from the German.

2 Compagnie Industrielle et Agricole du Comte de Loheac and Others v Council and Commission [1977] ECR 645.

3 Compagnie d'Approvisionnement, de Transport et de Credit SA and Grands Moulins de Paris SA v Commission [1972] ECR 391

4 August Topfer & Co. GmbH v Commission [1978] ECR 1019, at p. 1033.