Opinion of Mr Advocate General Tesauro

Mr President,

Members of the Court,

1. The present action, brought by Société d'initiatives et de coopération agricoles (SICA) and Société d'intérêt professionnel des producteurs et expéditeurs de fruits, légumes, bulbes et fleurs d'Ille-et-Vilaine (Sipefel), is for compensation for damage suffered as a result of the — allegedly unlawful — adoption of Commission Regulation (EEC) No 530/88 of 26 February 1988 withdrawing new potatoes from the list of products covered by the supplementary trade mechanism (hereinafter referred to as STM).

2. In order to give a clearer idea of the criticisms made by the applicants, it is necessary to describe the legislative context of Regulation No 530/88.

3. Regulation (EEC) No 569/86 contains the general rules on the application of the STM. In adopting that measure, the Council, in order to facilitate the monitoring of trends in trade, set up a system of securities and certificates or licences.

4. Let me say straight away that the objection raised by the Commission that Article 6 of Regulation No 569/86 does not apply to a case of withdrawal of a product from the list of products subject to the STM appears to me to be entirely well founded.

5. As regards the alleged incorrectness of the finding that trade in new potatoes during 1986 and 1987 followed a normal pattern (third recital in the preamble to Regulation No 530/88), it must be observed that the market in new potatoes is closely linked with the market in ware potatoes, in so far as an abundant harvest of ware potatoes in the Community of Ten will bring about a drop in Spanish exports of new potatoes to the Community. Conversely, a shortage of ware potatoes in the Community of Ten will provoke an increase in such exports.

6. In the alternative, the applicants asked the Court to find that, by failing to adopt, upon the entry into force of Regulation No 530/88, a specific mechanism for the surveillance of trade with nonmember countries, the Commission committed a wrongful act and thereby incurred liability.

7. My observations on this point will be brief.

8. Since, in my opinion, the applicants have failed to prove any unlawful conduct on the part of the Commission, I consider it unnecessary to examine whether the other conditions laid down by the Court for the liability of the Community to be incurred under the second paragraph of Article 215 of the Treaty have been fulfilled.

9. I therefore propose that the Court dismiss the application and order the applicants to pay tne costs, including those of the intervener.

1 Original language: Italian.

2 OJ 1988 L 53, p. 71.

3 OJ 1985 L 302, p. 23

4 Judgment in Case 119/86 Kingdom of Spain v Council and Commisiion [1987] ECR 4121, paragraph 16

5 OJ 1986 L 55, p. 106.

6 Judgments in Case 289/83 CAARM v Commission [1984] ECR 4295 and in Case 114/83 Société d'initiatives et de coopération agricoles v Commission [1984] ECR 2589.