Opinion of Mrs Advocate General Mancini

Mr President,

Members of the Court,

1. The Court is called upon to adjudicate on a claim for damages brought against the Council and the Commission by a French undertaking operating in the international cereals market. The origin of the dispute is a Commission regulation temporarily freezing the monetary compensatory amounts in spite of the fact that the lira had been devalued. According to the applicant, that freeze caused it financial lbss because no proportional increase in the copensatory amounts accompanied the reduction in prices brought about by the devaluation. The question before the Court therefore is to decide whether, or within what limits the Commission may freeze the compensatory amounts when the exchange rates are subjected to variations which, normally, involve a more or less immediate adjustment.

2. Let us examine first of all the Community rules applying to this case. The principal source is Regulation No 974/71 of the Council of 12 May 1971 on certain measures of conjunctural policy to be taken in agriculture following the temporary widening of the margins of fluctuation of certain currencies. Article 2 provides that, for the products covered by intervention arrangements, the compensatory amounts are to be determined by applying a certain percentage value to the prices. In respect of States whose currencies are maintained within a spread in excess of 2.25%, that value is equal to the average of the percentage difference between two parameters:

3. According to the Commission, the application is inadmissible because the applicant has not respected the rule which requires that national means of redress be first exhausted. Unifrex, they claim, should have:

4. I now turn to the substance. Unifrex rebukes the Community for not having adapted the compensatory amounts in good time to the devaluation of the lira on 23 March 1981. In particular, the Commission is liable for having unjustifiably frozen them from 23 March to 5 April 1981 and the Council for not having the measures necessary to prevent their being conrected only after some two weeks' delay. The Commission's act and the Council's omission are illegal from three points of view: they are contrary to the basic Regulation No 974/71; and they infringe the principles of the protection of legitimate expectation and non-discrimination.

5. Can it be deduced from this that Regulation No 801/81 by which the Commission froze the compensatory amounts does not infringe the basic regulation? It seems to me that it can. It should in any case be noted that a mere failure to observe Community, rules will not suffice to make the institutions extra-contractually liable. The case-law of the Court shows that the breach must be sufficiently serious to affect general principles and that it must amount to a manifest and grave disregard for the limits on the exercise of the Community's powers (see judgment of 25. 5. 1978, Joined Cases 83 and 94/76, 4, 15 and 40/77 Bayerische HNL [1978] ECR 1209, paragraph 6). It may thus be excluded without further consideration that the alleged fault of the Commission and the Council might be a fact capable of bringing Article 215 of the EEC Treaty into play. It is probably because it was aware of this that, as well as the infringement of Regulation No 974/71, the applicant has advanced the breach of two fundamental principles: the protection of legitimate expectation and non-discrimination.

6. For all the preceding reasons, I propose that the Court dismiss the claim put forward by the company Unifrex against the Commission and the Council in the application lodged on 21 October 1982.

1 Translated from the Italian.