Opinion of Mr Advocate General Lenz

Mr President,

Members of the Court,

The action for damages pursuant to Article 178 and the second paragraph of Article 215 of the EEC Treaty on which I am to give my views today is based on the following facts: On 12 May 1982 Eximo Molkereierzeugnisse Handelsgesellschaft mbH, whose registered office is in Hamburg, applied to the Bundesanstalt für landwirtschaftliche Marktordnung in Frankfurt am Main for an export licence and advance fixing certificate for the export to Switzerland of 500 tonnes of butter under tariff heading No 04.03 A of the Common Customs Tariff. The licence was issued on 18 May 1982, at the rate of export refund applicable on the date of application (12 May 1982), that is, 105 European currency units (ECU) per 100 kg, against the provision of security in the amount of DM 53 150.

By communication of 13 November 1981, published in Bundesanzeiger No 21 of 2 February 1982, the Commission had informed interested parties in the Community of its intention, pursuant to Article 5 (3) of Regulation No 876/68 of the Council (Official Journal, English Special Edition 1968 (I), p. 234), to adjust export refunds fixed in advance, in the transition period to the 1982/83 milk year, according to changes in the intervention prices, so that persons Concerned could enter into contracts on that basis for delivery after the beginning of the new marketing year. In the communication it was expressly stated, inter alia, that the adjustment would be applied to refunds fixed in advance not less than 14 days before the decision of the Council setting the intervention prices for the 1982/83 year.

Since the Council was not able to arrive at a decision on prices for the new year before the normal end of the 1981/82 year on 31 March 1982, the milk year was extended five times by regulations of the Council. The new milk year began only on 20 May 1982 with the coming into force of Council Regulation No 1184/82 of 18 May 1982 (Official Journal, L 140, 20.5.1982, p. 2), which set target and intervention prices for milk and milk products.

Pursuant thereto, by Regulation No 1324/82 (Official Journal, L 150, 29.5.1982, p. 46), the Commission set the export refund for the butter in question at 133 ECU per 100 kg net weight.

On 29 May 1982, the day on which that regulation came into force, Eximo applied for a new export licence and advance fixing certificate, which it duly received. It carried out the delivery on the basis of that licence, and did not use the export licence of 18 May 1982.

By Regulation No 1669/82 of 14 June 1982 (Official Journal, L 187, 1.7.1982, p. 1) the Commission finally set the adjustment rate for butter of the kind in question at 31.86 ECU per 100 kg net weight. It appears from the preamble that in order to avoid certain speculative dealings, the Commission considered it necessary, as had been stated in the communication of 13 November 1981, to limit operation of the adjustment to cases in which the export licence had been applied for more than 14 days before the date on which the Council had set intervention prices for the 1982/83 milk year. The regulation therefore provided that only refunds fixed in advance on or before 3 May 1982 should benefit from the adjustment.

In its action brought on 18 April 1983 against the European Economic Community, represented by the Commission, Eximo claims compensation for damage in the amount of DM 100300, plus interest. In its view the damage is the direct result of the Commission's communication of 13 November 1981 and Regulation No 1669/82 of 14 June 1982, adopted on the basis of that communication. The applicant submits that the damage consists first of the difference between the refund adjusted pursuant to Regulations Nos 876/68 and 1169/82, in the amount of 136.86 ECU per 100 kg, and the refund paid to it pursuant to Regulation No 1324/82, in the amount of 133 ECU per 100 kg. Converted into German currency, that amount, according to the applicant's calculation, comes to DM 47 150.

Secondly it advances a claim for the loss of the security in the amount of DM 53150 which it was obliged to lodge on application for the unused export licence of 18 May 1982.

I — Admissibility

My opinion on the matter is as follows:

I — Admissibility

1. The defendant considers the action inadmissible in its entirety. It refers in the first place to the fact that according to the case-law of the Court the liability of the Community under the second paragraph of Article 215 is subsidiary to national compensation remedies. In its view the applicant has not exhausted all national remedies with regard either to the alleged damage resulting from the forfeiture of the security or to the damage alleged to have occurred in connection with the adjustment of the refunds.

2. The Commission further argues that the action is also inadmissible because it is directed against the Commission alone and not also against the Council. According to the Commission, the alleged damage resulting from the failure to adjust the export refunds should also be attributed to the action of the Council in extending the milk year 1981/82 on several occasions.

II — Substance

1. The applicant argues that it suffered damage for which the Community is liable as a result of legislative action on the part of the Commission. The Commission communication of 13 November 1981, published in the Federal Republic of Germany on 2 February 1982, which was of a legislative nature, was itself illegal. Contrary to the purpose of Article 5 (3) of Regulation No 876/68 of the Council, which is to give Community exporters a degree of certainty with regard to the stability of refunds, the Commission arbitrarily announced a provision fixing a time-limit. In the applicant's view, in order to avoid damage to persons affected in the Community, the Commission should at the latest in adopting Regulation No 1669/82 of 14 June 1982, by which the provision fixing the time-limit was introduced as previously announced, have taken into account the fact that the beginning of the milk year had been postponed several times for a short period. In maintaining the provision with regard to the time-limit the Commission improperly or at least incorrectly exercised the discretion conferred upon it, which related at most to the question whether or not to make an adjustment. By its illegal conduct the Commission has committed a breach of the principles, guaranteed by Community law, of economic freedom of action, protection of legitimate expectation and equality of treatment.

2. In. dealing with this dispute it must first be recalled that the Court has consistently held in regard to liability for legislative wrongs that a finding that a legislative act is illegal is not in itself sufficient to give rise to liability. As the Court has consistently held the Community does not incur liability on account of a legislative measure involving choices of economic policy unless a sufficiently serious breach of a superior rule of law for the protection of the individual has occurred. Only exceptionally and in special circumstances can liability for legislative measures which are the result of choices of economic policy be admitted. In the HNL case, the Court thus held that the legislative authority cannot always be hindered in making its decisions by the prospect of applications for damages whenever it has occasion to adopt legislative measures in the public interest which may adversely affect the interests of individuals. In that case and in later cases (cf. the Ireks-Arkady, DGV, Interquell and Dumortier Frères cases), the Court has accordingly held that liability can only and exceptionally be incurred when the institution concerned has manifestly and gravely disregarded the limits on the exercise of its powers. At the same time the Court has stressed niter alia in the HNL case that individuals may be required, in the sectors coming within the economic policy of the Community, to accept within reasonable limits certain harmful effects on their economic interests as a result of a legislative measure without being able to obtain compensation from public funds even if that measure has been declared null and void.

3. The question whether a refund fixed in advance should be adjusted depends however on a decision of economic policy. That decision is characterized by a wide discretion essential for the implementation of the common agricultural policy. That such a discretion exists is made clear by Regulation (EEC) No 2732/71 of the Council of 20 December 1971 (Official Journal, English Special Edition 1971 (III), p. 1020), by which Article 5 (3) of Regulation No 876/68 was amended. The previous wording of that provision stated that the refund fixed in advance shall be adjusted according to changes in the threshold price and certain aids; the version in force since 1 January 1972, in contrast, reads as follows:

4. For those reasons the submission that the regulation in question, No 1669/82, is illegal must in my view be dismissed. According to the case-law set out above, even if the regulation were to be held illegal the Community could only and exceptionally incur liability if the Commission had manifestly and gravely disregarded the limits on the exercise of its powers. In that regard the Court has held that not only the extent of the incorrect exercise of discretion but also the effects of the defective legislative acts on the economic interests of individuals must be taken into account.

Ill — The damage and causation

Since it must be concluded that the conduct of the Commission was not such as to involve the Community in liability, it may be remarked in conclusion, from a purely subsidiary point of view, that the applicant has suffered no damage for which compensation should be paid. In the oral procedure the applicant stated that it applied for advance fixing with regard to a contract that was already concluded. The application for advance fixing was made however in the expectation that the refund fixed in advance would be adjusted. It considers itself injured by reason of the fact that contrary to its expectation no adjustment was made to the refund fixed in advance. As has already been shown, however, it could not reasonably expect that the Commission would, contrary to its communication, also adjust those refunds in respect of which advance fixing was applied for within the 14-day period before the fixing of the new intervention prices. The alleged damage thus results from a purely speculative calculation of the applicant, which must be regarded as part of its business risks. If it did not export the goods on the basis of the export licence of 18 May 1982 in order to mitigate the expected loss, the resulting forfeiture of the security must also be attributed to its commercial risk.

IV — Interest

Since the action has been show to be unfounded in all respects the claim for interest need not be discussed.

In conclusion I therefore propose that the Court dismiss the action as unfounded and order the applicant to pay the costs of the proceedings pursuant to Article 69 (2) of the Rules of Procedure.

1 Translated from the German.

2 Judgment of 25.10.1972 in Case 96/71, Haegeman v Commission, [1972] ECR 1005. Judgment of 27.1.1976 in Case 46/75, IBC Importazione y Commission, [1976] ECR 65. Judgment of 21.5.1976 in Case 20/74, Roquette Frères v Commission, [1976] ECR 677. Judgment of 2.3.1978 in Joined Cases 12, 18 and 21/77, Debayser v Commission, [1978] ECR 553. Judgment of 12.12.1979 in Case 12/79, Wagner Agrarhandel v Commission, [1979] ECR 3657. Judgment of 5.12.1979 in Joined Cases 116 and 124/77, Amylurn v Council and Commission, [1979] ECR 3497. Judgment of 10.6.1982 in Case 217/81, interagra v Commission, [1982] ECR 2233.

3 Joined Cases 116 and 124/77, Amylum v Council and Commission, see Note 1, p. 2315. Judgment of 17.12.1981 in Joined Cases 197 to 200, 243, 245 and 247/80, Ludwigshafener Wakmühle v Council and Commission, [1981] ECR 3211.

4 Case 281/82, Unifrex v Commission and Council, [1984] ECR 1969.

5 Case 217/81 Interagra v Commission and Case 12/79 Wagner Agrarhandel v Commission, see Note 1, p. 2315.

6 Judgment of 13.11.1973 in Joined Cases 63 to 69/72, Wehrhahn Hansamühle v Council, [1973] ECR 1229.

7 Judgment of 2.12.1971 in Case 5/71, Zuckerfabrik Schõppenstcdtv Council, [1971] ECR 975. Judgment of 5.12.1979 in Case 143/77, Koninklijke Schollen-Honig v Council and Commission, [1979] ECR 3583.

8 Judgment of 25.5.1978 in Joined Cases 83 and 94/76, 4, 15 and 40/77, HNL v Council and Commission, [1978] ECR 1209.

9 Judgment of 4.10.1979 in Case 238/78, Ireks-Arkady v Council and Commission, [1979] ECR 2955. Judgment of 4.10.1979 in Joined Cases 241, 242 and 245 to 250/78, DGV v Council and Commission, [19791 ECR 3017. Judgment of 4.10.1979 in Joined Cases 261 and 262/78, Interquell Stärke v Council and Commission [1979] ECR 3045. Judgment of 4.10.1979 in Joined Cases 64 and 113/76, 167 and 239/78, 27, 28 and 45/79, Dumortier Frères v Council, [1979] ECR 3091.

10 Judgment of 25.5.1978 in Joined Cases 83 and 94/76, 4, 15 and 40/77, HNL v Council and Commission, [1978] ECR 1209.