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. As we already know, Article 3 of the aforementioned regulation provides that, if the difference between the parameters indicated in Article 2 “changes by at least one point from the percentage taken as a basis for the preceding determination”, the compensatory amounts are to be altered in line with that change. According to the applicant, that rule imposes on the Commission an actual duty to adapt the compensatory amounts when any currency (lira, sterling, drachma) is devalued beyond a certain limit. In this case, the Commission did not carry out its duty and the Council did not intervene to ensure that it was carried out in good time. Both courses of conduct are thus contrary to Article 3 and give rise to non-contractual liability on the part of the Community for the damage suffered by the undertaking. I am not convinced by that theory. I do not believe that the Commission is under a genuine duty arising from Article 3, or at least, it is not under a duty which deprives it of all discretion in deciding to bring the compensatory amounts up to date following upon changes in the parities. Numerous factors point in that direction and above all the terms of the provision itself, the central part of which reads “shall be altered by the Commission”. As will be noted, this does not contain words which directly evoke the idea of obligation (the French text uses the passive voice — “les montants ... sont modifiés par la Commission” — and makes one think therefore of a grant of powers). What is more important, it does not prescribe any period for the bringing into effect of the alterations. Now to the practice. If the system were absolutely automatic, if the Commission had to adapt the compensatory amounts to the variations in the rates of exchange of currencies fluctuating outside the 2.25% with no margin of discretion, the alterations would have retroactive effect. On the other hand, the Commission claims, and Unifrex does not contradict it on that point, that it normally brings such alterations into effect on the Monday of the week following that in which a major devaluation within the meaning of Article 3 took place, and it explains that it uses that period to gather in the information necessary for its own decisions. In fact at least, therefore, the discretion exists. I would add that, taking account of that information, one cannot speak of a delay from 23 March to 5 April. In normal circumstances, the increase in the amounts would have taken effect only from 30 March and, from two weeks, the failure of which Unifrex complains would be reduced to six days. In the third place, the purposes of Regulation No 974/71 are important. Looking at the preamble, and in particular the fourth recital, one may see that the compensatory amounts are presented there as measures designed to prevent monetary fluctuations from disrupting the intervention system and generating abnormal price movements such as to jeopardize “a normal trend of business in agriculture”. It follows that when the variations in the rates of exchange do not provoke effects of that sort, for example because of their temporary character, the precondition for taking action with regard to the compensatory amounts does not exist and reasons counselling forbearance will prevail. In such cases, in fact, rather than ensuring a normal trend of business, the immediate correction of the amounts might give rise to speculative movements and distortions of the flow of trade. Once again, the case-law of the Court supports my thesis. In more than one case, the Court has accepted that the Commission may legitimately freeze the compensatory amounts. Let me refer in particular to the judgment of 14 December 1978, in Case 35/78 Schouten [1978] ECR 2543. The Court acknowledged in that case that Article 3 of Regulation No 974/71 may be interpreted “as meaning that the exchange rates taken into account in order to establish the difference ...” to which the rule refers for the alteration of the amounts, must be “assessed on the basis of economically justified criteria”, and that the Commission might leave out of account rates “which it considered to be unrepresentative” (paragraph 36). I am convinced that in this case, by bringing the modified compensatory amounts into effect from 6 April, the Commission was exercising precisely that discretionar)' power which it had been granted for the purpose of avoiding speculative manoeuvres. On 6 April, the so-called “green” rates were to be aligned. Let us suppose that, rather than waiting for that date, the defendant institution had adjusted the amounts from 30 March; we should have had two modifications within one week, with obvious and fairly serious consequences for the security of commercial relations.