Opinion of Advocate General Van Gerven

Mr President,

Members of the Court,

1. The present case concerns an action brought under the second paragraph of Article 215 of the EEC Treaty by the Koinopraxia Enoseon Yorgikon Sinetairismon Diakirisios Enchorion Proïondon (hereinafter referred to as KYDEP) against the Council and Commission of the European Communities. KYDEP is seeking compensation for the damage which it allegedly suffered owing to the wrongful acts and omissions of the institutions in their regulatory activity following the nuclear accident which occurred at Chernobyl on 26 April 1986. As a result of that accident a radioactive cloud was driven over large parts of Europe, contaminating a large quantity of agricultural products.

2. KYDEP is a cooperative according to Greek law, established in Athens, comprising 93 unions of agricultural cooperatives. It purchases from Greek producers, inter alia, cereals and vegetables which it stocks and sells. From the 1986 harvest KYDEP bought 634162152 tonnes of durum wheat and 335202676 tonnes of common wheat with a view to either selling them in non-member countries or offering them for intervention.

The legislative action by the Council and the Commission which is contested by the applicant

3. Before describing in order the action taken by the Council and the Commission, which is challenged by the applicant, I would point out that the legislative action taken by the institutions in response to the nuclear accident at Chernobyl (demonstrably) concerned first and foremost imports of agricultural products from certain central and eastern European countries, in other words from non-member States. However, the applicant's allegations relate to products which it bought in Greece and offered for intervention or sold in or exported from Greece. The key feature (albeit never clearly expressed) of KYDEP's allegations therefore seems to be that the Community institutions did not at the same time make provision for financial aid in favour of products from the Member States, in particular Greece, or that they did so too late or in an incorrect manner.

Measures concerning the maximum permitted tolerances

4. The initial preparatory measures were of a general nature. Thus, in its first reaction to the Chernobyl accident, more specifically in a press communiqué of 29 April 1986, the Commission gave to understand, inter alia, that in accordance with Articles 35 and 36 of the EAEC Treaty it had requested the Member States to notify it of the radioactivity present in the atmosphere and that it intended to place the problem on the agenda of the next meeting of the Scientific and Technical Committee established under Article 31 of the EAEC Treaty.

5. The following day, 7 May 1986, the Commission adopted an initial measure concerning imports from central and eastern European countries. More specifically it concerned a decision whereby imports of meat from Bulgaria, Hungary, ex-Yugoslavia, Poland, Romania, ex-Czechoslovakia and the former Soviet Union were suspended.

6. On 30 May 1986 the Council adopted Regulation (EEC) No 1707/86, again concerning imports of agricultural products from non-member countries. Whilst still containing urgent temporary measures, that regulation, unlike the earlier regulation, concerned all agricultural products and processed agricultural products intended for human consumption, including wheat, and instead of a complete ban on imports from the seven countries mentioned above, introduced maximum tolerances within which imports were to be permitted. In particular Article 3 provided that the accumulated maximum radioactivity in terms of caesium-134 and -137 should be 370 Bq/kg for milk and 600 Bq/kg for all other products concerned. In the second recital in that preamble it was stated that these levels applicable to third countries might need to be re-examined in the light of Community decisions regarding internal permitted contamination levels.

7. Thus Regulation No 1707/86 concerned imports from (clearly specified) third countries. However, at the Council meeting of 30 May 1986 at which they were approved the Member States agreed that, with regard to products mentioned in the regulation originating in other Member States, they would not apply stricter maximum tolerances than those laid down in the regulation for imports from third countries-Furthermore the Member States referred to an earlier declaration of 12 May 1986 in which they had undertaken not to apply to products from other Member States more restrictive maximum tolerances than for national products.

8. The period of validity of Regulation No 1707/86, which originally expired on 30 September 1986, was twice extended. On 22 December 1987 the Council adopted two new regulations. The first, Regulation (EEC) No 3955/87, still deals with imports of agricultural products from non-member countries. In essence, and without any relevant substantive change, it reproduces the provisions of Regulation No 1707/86. For a period of two years the same maximum tolerances are applied in respect of the same products from the same countries.

9. The procedure mentioned in that regulation makes provision for the Commission, in the event of its receiving official information on accidents or on any other case of radiological emergency substantiating that the maximum permissible levels are likely to be reached or have been reached (see below), immediately to adopt a regulation rendering applicable those maximum permissible levels (Article 2(1)). After consultation with experts that regulation is to be submitted within one month by the Commission to the Council which within a prescribed period may amend or confirm it (Article 3(1 to 3)). If not the levels set out in the annex are to continue to apply until the Council makes a decision or the Commission withdraws its proposal (Article 3(4)).

Measures concerning buying-in and the grant of export refunds by intervention agencies

10. In this connection I would first refer to a report sent on 24 July 1986 by the Commission by telex to the permanent representations of the 12 Member States. It was signed by Mr Legras, Director-General for Agriculture, and concerns the buying-in by the intervention agencies of products contaminated by the Chernobyl accident and the grant of export refunds for those products. That report takes an important place in KYDEP's arguments (see paragraph 19 below). I will quote it in extenso:

11. The Commission did not confine itself to the abovementioned measure. By Regulation (EEC) No 2751/88 of 2 September 1988 it also adopted a special intervention measure in favour of durum wheat originating in Greece, in particular wheat from the 1986 harvest. That measure was based on Article 8 of Council Regulation (EEC) No 2727/75 of 29 October 1975, which provides that specific intervention measures may be decreed where the market situation in certain areas of the Community so requires. The special intervention measure thus adopted in the case of Greek durum wheat provided for the grant of an export refund for 300000 tonnes of durum wheat exported from Greece which as to 40% had to originate in the Greek harvest of 1986.

Basic principles concerning non-contractual liability

12. At the outset of the examination of the submissions made by the applicant in support of its claim for compensation, it may be useful to recall the basic principles governing non-contractual liability at Community law. In that connection I cite below paragraphs 12 and 13 of the judgment of the Court of 19 May 1992 in Joined Cases C-104/89 and C-37/90:

13. In the present case the question therefore arises first of all whether in the present case there has been a sufficiently serious breach of a superior rule of law for the protection of the individual. KYDEP sets out five such breaches concerning respectively Article 39(1 )(b) and (c) of the EEC Treaty, the prohibition of discrimination, the principle of proportionality, the manifestly incorrect assessment of facts and the principle of the free movement of goods and exports. The Commission and the Council contest all of these alleged breaches and contend that KYDEP's claim should be rejected without its being necessary to examine the other criteria of liability in particular the existence of damage and the issue of causality.

The alleged breach of Article 39(1)(b) and (c) of the EEC Treaty

Applicant's allegations against the Council

14. Article 39(1) of the EEC Treaty summarizes the objectives of the common agriculrural policy. On the basis of the considerations contained in the preamble to Council Regulation No 2727/75 of 29 October 1975 on the common organization of the markets in the cereals sector, KYDEP states, without being contradicted in this respect either by the Council or the Commission, that in the cereals sector the primary objectives are those mentioned in Article 39(l)(b) and (c), namely the securing of a fair standard of living for the agricultural community and the stabilization of markets. According to KYDEP the Council is said to have infringed those objectives by not adopting at the time of the Chernobyl accident a decision under Community law concerning intervention, exports and intra-Community trade in cereals. That omission is said to be all the more serious in view of the expectation aroused by the Council in the second recital in its preamble to Regulation No 1707/86 announcing a Community decision regarding internal permitted contamination levels. The Council was also obliged under Article 8 of abovementioned Regulation No 2727/75 (see paragraph 11 above) to adopt such measures.

15. The Council attempts to rebut that allegation with the following arguments. First, it submits that at the time of the accident in Chernobyl the institutions did not have available to them the necessary powers under Community law and that in particular there was no procedure in an emergency following a nuclear accident for establishing the maximum permissible levels of radioactive contamination in foodstuffs. Nevertheless, Article 2(b) of the EAEC Treaty provides that the European Atomic Energy Community is to establish uniform safety standards to protect the health of workers and of the general public and must ensure that they are applied. Effect was given to that provision by various directives adopted in 1959, which were subsequently replaced by a Council directive of 15 July 1980 amending the directives establishing basic standards for the protection of the health of the population and of employees against the dangers of radiation. However, these directives contain no rules concerning the establishment of maximum levels of contamination by radioactivity of foodstuffs as a result of a nuclear accident. Certainly Article 45(4) of the abovementioned directive provides that in the event of accidents, each Member State shall stipulate (a) intervention levels, measures to be taken by the competent authorities (...). Moreover,

16. As regards the possibility provided for in Article 8 of Regulation No 2727/75 of adopting special intervention measures, the Council points out that this possibility was in fact availed of in particular by Commission Regulation No 2751/88 of 2 September 1988 concerning a special intervention measure for durum wheat in Greece (see paragraph 11 above). The Council further points out that neither the Treaty nor Regulation No 2727/75 requires it to adopt measures providing for direct financial compensation of the losses suffered by producers as a result of natural disasters or other unusual occurrences. On the other hand Article 92(2)(b) of the EEC Treaty provides that in such a case aid measures by the Member States are permitted.

17. I have no difficulty in agreeing with the Council's arguments. KYDEP has entirely failed to demonstrate the existence of a sufficiently serious breach of a superior rule of law for the protection of individuals; nor has it demonstrated that the Council gravely disregarded the limits on the exercise of its powers (see paragraph 12). Irrespective of whether Article 39 does constitute a superior rule of law for the protection of individuals, there cannot, it seems to me, be any question of a wrongful act or omission, let alone any sufficiently serious breach. As the Council correctly states, there is no provision of Community law which obliges the Commission to adopt measures providing for financial compensation for losses suffered by the Greek cereals sector following the nuclear accident in Chernobyl. In particular no such obligation may be inferred from the general provision contained in Article 39 of the EEC Treaty in which a fair standard of living for the agricultural community and the stabilization of the markets are stated to be objectives of the common agricultural policy. Article 8 of the abovementioned Regulation No 2727/75 enables, but does not compel, special intervention measures to be adopted. The Commission did in fact adopt such a special intervention measure, in the form of abovementioned Regulation No 2751/88, in favour of durum wheat from the 1986 harvest originating in Greece.

Applicant's allegations against the Commission

18. In connection with the abovementioned allegation against the Council, KYDEP takes the view that the Commission waited too long before submitting a proposal for a permanent set of rules concerning the radioactive contamination of foodstuffs. At its sitting of 30 May 1986 at which Regulation No 1707/86 was adopted, the Council requested the Commission without delay to formulate proposals for rules concerning inter alia the radioactive contamination of foodstuffs (see paragraph 7 above). Only 13 months later, on 2 July 1987, the Commission published a proposal which then resulted in Regulation No 3954/87 (see paragraph 8 above).

19. KYDEP also alleges that the Commission exacerbated the problems of the Greek cereals sector by sending a telex report to the Member States on 24 July 1986 (see paragraph 10 above). The sending of that report is alleged to be an entirely unlawful action and to have caused serious loss. Essentially it led to a prohibition on offering for intervention, or granting export refunds, in respect of agricultural products whose radioactivity exceeded the tolerances set out therein.

20. I have no difficulty in accepting the Commission's arguments. It is entirely normal for the Commission, in the performance of its task of guardian of Community law and manager of the EAGGF, to remind the Member States of the Community rales which they are obliged to apply. Likewise, it is normal for the Commission, in the framework of the administrative cooperation with the Member States, to give its interpretation on the application of the rules on financing by the EAGGF, which the Commission is obliged to apply in the framework of the annual approval of the EAGGF accounts.

21. KYDEP challenges this interpretation by reference to the second paragraph of the aforementioned Article 2 of Regulation No 1569/77, which provides that:

The alleged infringement of the prohibition of discrimination

22. The second subparagraph of Article 40(3) of the EEC Treaty provides that a common organization must exclude any discrimination between producers or consumers within the Community. According to KYDEP the Community institutions infringed the prohibition of discrimination by not adopting special measures in favour of the Greek cereals sector. Greek territory was much more seriously affected by the consequences of the accident in Chernobyl than the rest of the Community. The omission of special measures for Greece thus constitutes discrimination.

23. These arguments by KYDEP do not, it seems to me, carry conviction in view of the Court's case-law: According to a consistent line of decisions of the Court, discrimination is defined as treating differently situations which are identical, or treating in the same way situations which are different (judgment of 23 February 1983 in Case 8/82 Wagner v BALM [1983] ECR 371). What KYDEP is here alleging is that, although the Greek cereals sector was in a different situation, it was treated in the same way as the rest of the Community. As regards equal treatment the Council points out that special measures in favour of Greece were adopted, in particular by Regulation No 2751/88 (see paragraph 11). As regards the different situation the Council and the Commission point out that Greece was not the only territory in the Community to be seriously affected by the accident in Chernobyl. From figures submitted to the Court by the Commission it appears that two areas of the Community, namely southern Germany and northern Italy suffered more radioactive fallout than Greece. KYDEP's reply to that is that those figures relate to contamination of the soil which does not necessarily correspond directly to the degree of contamination of agricultural products. However, KYDEP produces no figures or other information to show that the degree of contamination of agricultural products, in particular wheat, was higher in Greece than in the rest of the Community. I infer therefrom that KYDEP has adduced no evidence that the Greek cereals sector was discriminated against. In so far as the Greek situation might be alleged to be different from that in the other areas of the Community that situation was tackled by the adoption of special measures in favour of Greece.

24. Nor does the argument by KYDEP based on the comparison between the two regulations of 22 December 1987 carry conviction. As the Council and the Commission correctly state those are two regulations with differing contents and objectives. Regulation No 3955/87 specifically concerned the consequences of the accident in Chernobyl. The maximum levels of radioactivity contained therein were reasonable and justified in the light of the factual circumstances and available scientific knowledge at the time (see paragraphs 27 and 28 below). On the other hand, Regulation No 3954/87 contains no actual measures related to a specific event, but lays down the procedure for determining maximum levels of radioactive contamination in the case of future nuclear accidents. It is apparent from Article 2(1) and Article 3(4) of that regulation (see paragraph 9 above) that the figures in the annex to the regulation apply pending or in the absence of a decision determining, in accordance with the circumstances of the actual case, maximum levels of radioactivity. Since those maximum levels are of an ancillary nature and applicable only pending the availability of actual data, I do not find it unusual that they should be on the high side. In any event no discrimination may be inferred from a comparison of those secondary maximum levels with the actual maximum levels contained in Regulation No 3955/87, since the two maximum levels are based on different situations, namely on the one hand the actual situation in Chernobyl and on the other the general hypothetical situation of future accidents.

25. Finally, I do not consider that KYDEP can demonstrate an infringement of the principle of non-discrimination by pointing to the fact that the co-responsibility levy was charged in respect of cereal which could not be considered for intervention. Article 4(5) of Regulation No 2727/75 on the common

The alleged infringement of the principle of proportionality

26. According to KYDEP, in adopting the measures contained in Regulation No 1707/86 (see paragraph 6) the Community institutions infringed the principle of proportionality. According to the settled case-law of the Court that principle requires the measures imposed by the Community institutions to be appropriate to achieve the intended objective and not to exceed the limits of what is necessary to that end.

27. It is not entirely clear to me on what grounds KYDEP considers that it may base this infringement on the principle of proportionality. At other places in its submissions I find the argument that the maximum levels laid down were not justified on a scientific basis. In the fourth recital in the preamble to Regulation No 1707/86 the Council recognized that the subject of minimum reference levels is still in need of more thorough scientific study, but added that for reasons of urgency and by means of an emergency procedure, interim maximum permitted limits should be established. As the Commission's representative said at the hearing, without being contradicted by KYDEP, it is not possible even today to say with confidence which figures are scientifically correct and not open to challenge. That was even more so immediately after the Chernobyl accident which, as I have already stated on several occasions, was entirely novel and unexpected as regards the extent of its consequences. The Commission states, again without being contradicted by KYDEP, that it based its proposals on all available scientific data, having regard also to the reactions of public opinion and the authorities in the different Member States and in non-member countries. Various Member States and non-member States had already adopted measures or were in the process of doing so, whereby the stringency of the permitted levels of radioactivity depended on the environmental awareness of public opinion in the different countries.

28. I consider that the Community institutions, in establishing uniform maximum tolerances had to take account of these differences in order to arrive at an average level acceptable to all Member States. Thanks to Regulation No 1707/86 and the other measures adopted by the Community and the Member States that objective was also achieved, both for imports from non-member countries and for intra-Community trade. As the Commission points out, again without being contradicted by KYDEP, all the Member States accepted for intra-Community trade the maximum tolerances laid down in the regulation for imports from central and eastern European countries (see paragraphs 6 and 7 above), and 20 non-member countries also adopted the same norms. It may be inferred from this unanimity, it seems to me, that the maximum tolerances adopted in Regulation No 1707/86 were not unreasonable particularly in view of the rather sparse factual and scientific evidence available at that time. In view of the fact that no new factors have subsequently emerged to indicate that they were inadequate, it seems to me quite justifiable that the maximum tolerances provisionally adopted in Regulation No 1707/86 should have been subsequently confirmed in Regulation No 3955/87. Save for the argument derived from a comparison with Regulation No 3954/87, which I have already rejected (paragraph 24), KYDEP puts forward no other argument to show that those maximums were stricter than was necessary. Consequently, there is no evidence available of an infringement of the principle of proportionality.

The manifestly incorrect assessment of the facts

29. KYDEP submits that the maximum tolerances, as laid down in Regulation No 1707/86, indicate a manifestly incorrect assessment of the facts. As I have already stated above (paragraph 6), Article 3 of that regulation provided that:

30. In its defence the Council again points to the fact (see paragraph 15 above) that at the time of the Chernobyl accident there were no internationally recognized norms with regard to permissible levels of radioactivity in foodstuffs. The standards adopted by the Council in Regulation No 1707/86 were based on the information available at that time: opinions of national experts on radioactivity in foodstuffs, recommendations of the International Commission for Radiological Protection and directives of the US Food and Drug Administration. The levels which subsequently in January 1987 were laid down by the Food and Agriculture Organization of the United Nations (FAO) were approximately the same as those contained in Regulation No 1707/86.

31. With regard to the generality of KYDEP's arguments which contain no single scientific or other determining element, and the counter-arguments put forward by the Council and the Commission, KYDEP's claim on this point, it seems to me, must also be dismissed. For it has in no way been proved that the Council manifestly and gravely exceeded the limits of its competences. Moreover, I share the Commission's incomprehension regarding the interest that KYDEP might have in the matters it alleges.

The alleged infringement of the free movement of goods and the freedom to export

32. KYDEP submits that the acts and omissions of the Council and the Commission, in particular the failure to adopt a decision at Community level concerning intervention, exports and intra-Community trade in cereals (see paragraph 14 above) and the sending of the telex of 24 July 1986 by the Commission (paragraph 19) caused the free movement of goods and the freedom of exports to be impeded, in particular as regards wheat having a level of radioactivity of more than 600 Bq/kg.

33. As counsel for KYDEP stated at the hearing, this is not really a separate allegation but a logical implementation and extension of the other allegations. The Council and the Commission also refer to their defence concerning the other allegations, in particular to their defence against the allegation of an infringement of Article 39 of the EEC Treaty: the Community was not competent to adopt more far-reaching measures than it had already adopted (see paragraph 15 above), the telex at issue was entirely lawful (paragraph 18) and the measures adopted as a whole by the Community institutions and the Member States served as far as possible to preserve the unity of the market and trade with non-member countries (paragraphs 27 and 28). Since KYDEP submits no other arguments, I may likewise refer to my earlier observations and conclude therefrom that KYDEP's submissions must be rejected on this point too.

The alleged loss and the causal link

34. I think it is clear from the foregoing that KYDEP has been unsuccessful in seeking to show that the Council and/or the Commission misdirected themselves in such a way as to incur liability under the second paragraph of Article 215 of the EEC Treaty. Consequently, it is not necessary to examine the alleged loss and the causal link, and KYDEP's claim must be rejected in its entirety. Because the arguments of KYDEP on loss and causality are not very clear, and remain so even after KYDEP's response to the Court's request for supplementary information, the Council and the Commission have not really been able to examine in detail the arguments of KYDEP on these points. Should the Court take a different view and consider that KYDEP has adequately demonstrated the existence of a fault on the part of the Council and/or the Commission, those institutions must in any event be afforded the possibility of presenting argument on these points.

Conclusion

35. On the basis of the foregoing I propose that the Court should reject KYDEP's claims and order it to pay the costs.

1 Original language: Dutch.

2 The Commission annexed this press communiqué to its defence.

3 Commission Recommendation 86/156/EEC of 6 May 1986 addressed to the Member States concerning the coordination of national measures taken in respect of agricultural products as a result of radioactive fallout from the Soviet Union (OJ 1986 L 118, p. 28).

4 Commission Decision 86/157/EEC of 7 May 1986 suspending the inclusion of certain countries on the list of third countries from which the Member States authorize imports of bovine animals, swine and fresh meat (OJ 1986 L 120, p. 66).

5 OJ 1986 L 127, p. 1.

6 In implementation of this Council regulation the Commission adopted two further regulations, namely Regulation (EEC) No 1505/86 of 16 May 1986 (OJ 1986 L 131, p. 45) and Regulation (EEC) No 1603/86 of 26 May 1986 (OJ 1986 L 140, p. 24).

7 OJ 1986 L 146, p. 88.

8 In implementation of Council Regulation (EEC) No 1707/86 the Commission adopted Regulation (EEC) No 1762/S6 of 5 June 1986 (OJ 1986 L 152, p. 41).

9 Council document 7357/86, p. 2; submitted by the Council as an annex to its defence.

10 OJ 1987 L 371, p. 14.

11 The period of validity of that regulation was subsequently extended by Council Regulation (EEC) No 4003/89 of 21 December 1989 (OJ 1989 L 382, p. 4). The regulation was then replaced by Council Regulation (EEC) No 737/90 of 22 March 1990 (OJ 1990 L 82, p. 1). The latter regulation, whose period of validity extends until 31 March 1995, lays down the same maximum tolerances but provides for a procedure excluding from the scope of the regulation products whose radioactivity has fallen to the level subsisting prior to the accident at Chernobyl.

12 OJ 1987 L 371, p. 11. In its title the regulation is described as laying down maximum permitted levels of radioactive contamination of foodstuffs and of feeding-stuffs following a nuclear accident or any other case of radiological emergency.

13 Telex No VS-S-1/1187/86/D1/GG/G8.

14 OJ 1988 L 245, p. 13.

15 In the version applicable at that time after being repealed by Council Regulation (EEC) No 1579/86 of 23 May 1986 (OJ 1986 L 139, p. 29) and amended by Council Regulation (EEC) No 1097/88 of 25 April 1988 (OJ 1988 L 110, p. 7).

16 Judgment of 19 May 1992 in Joined Cases C-104/89 and C-37/90 Mulder and Others v Council and Commission [1992] ECR I-3061, paragraphs 12 and 13.

17 OJ 1975 L 281, p. 1; subsequently amended on several occasions.

18 See paragraph 6 above.

19 As mentioned above that procedure was established only in Regulation No 3954/87 (see paragraph 8 above).

20 Directive 80/836/Euratom (OJ 1980 L 246, p. 1).

21 Opinion of Advocate General Capotorti of 1 March 1978 in Joined Cases 83/76, 94/76, 4/77, 15/77 and 40/77 HNL v Council and Commission [1978] ECR 1209, at p. 1231.

22 See Article 5(2)(b) of Regulation (EEC) No 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policy (OJ, English Special Edition 1970(1), p. 218).

23 OJ 1977 L 174, p. 15.

24 OJ 1979 L 317, p. 1.

25 Judgment in Case 58/86 Coopérative Agricole d'Approvisionnement des Avirons v Receveur des Douanes [1987] ECR 1525, paragraph 15.

26 The only fact to which KYDEP refers is that only the Greek Government sought compensation for the consequences of Chernobyl in the Council and in the Committee of Permanent Representatives. In support of that allegation KYDEP cites certain Council documents. According to the Council those arc documents which under Article 18 of the Rules of Procedure of the Council (OJ 1979 L 268, p. 1), are subject to the secrecy rule and in respect of which no authorization was requested in order that they be submitted to the Court. Consequently, the Court may not take cognizance of them. However that may be, the fact that only one government requested the adoption of measures cannot be taken as proof that a problem is solely of concern to that Member State.

27 OJ 1986 L 139, p. 29.

28 As an annex to its rejoinder the Commission appended a scientific study in which both situations were explained.

29 Judgment in Case 116/82 Commission v Germany [1986] ECR 2519, paragraph 21.