4.

Consideration must now be given to the other claim advanced in the application, which is that the defendant be ordered to compensate for the loss of profit arising from the fact that it was virtually impossible, as a consequence of Regulation No 2033/75 of the Commission, for the applicant to perform the contract of 14 May 1975. It must, therefore, be ascertained whether the Commission adopted a provision or behaved in a way which might involve the Community in liability for the damage which the applicant claims to have sustained. In this connexion the legal issues to be considered are naturally the same as those which would have called for consideration in connexion with the principal claim, had that claim been held to be admissible. It will be recalled that, so far as the substance of the case is concerned, the oral procedure was confined to the preliminary question as to whether the Commission had acted in a way which might render the Community liable for the damage claimed by the applicant. Because of this, certain arguments which were adduced by the parties, especially in the course of the written procedure, remain outside the ambit of this opinion; in particular, I shall not examine whether it would in any case have been possible and convenient for the applicant to effect the importation under the terms of Regulation No 2033/75, or, possibly, to market the product in non-Member countries and I shall not endeavour to establish whether the Romanian corporation was or was not in a position to effect the deliveries provided for under the contraa, bearing in mind the change which also occurred in the situation on the market in meat in Romania. In short, I shall make no reference to the question whether there is a causal link between the conduct of the Commission and any damage which may have occurred, or to the question whether there is any damage at all. I have already referred to the applicant's claim that Regulation No 2033/75 is invalid for breach of the principles of legitimate expectation and of equality of treatment, in that it did not ensure that contracts entered into before 1 June 1975 could be performed. In this context the applicant contends that the modification provided for by Regulation No 1090/75 of the protective arrangements introduced by Regulation No 2668/74 did not make it possible for those concerned to foresee the new restriction which the Commission introduced in Regulation No 2033/75 in respect of a specific type of prepared beef and veal that is to say, prepared or preserved meat coming under the customs subheading to which I have referred. According to the applicant this constitutes a disregard of the legitimate expectations of those concerned; when legislation is being amended, the Commission is said to be under a duty to adopt appropriate transitional measures to protect legitimate expectations and may derogate from that principle only if an overriding matter of public interest so requires. In this case there was no overriding interest which compelled the Commission to interfere with contracts previously concluded in their final form, thus rendering their fulfilment impossible, at least in part. On this point the applicant cites Article 2 of the German Law on foreign trade under which it is provided that restrictions on trade shall not affect contracts already concluded except in so far as this is necessary to prevent attainment of the objective from being seriously jeopardized. In conjunction with this requirement, respect for the principle of proportionality is also said to be involved. However, there can in my opinion be no question, even allowing for the case-law established by this Court, of the mere existence of a contraa conferring on the parties the right to a guarantee on the part of the Community institutions that, until the contract is executed, the legal conditions applicable at the time of its conclusion shall remain unchanged and that, accordingly, in the case of legislative amendments which make the conditions for importing or exporting particular products more difficult, the new arrangements should not apply to operations relating to the performance of previously concluded contracts. Only if the transaction in question had been the subject of a specific authorization by the Community authorities or by the national authorities delegated by them would it be possible to recognize the applicant's claim to some form of guarantee. This applies with particular force to the case of a person who has paid a deposit as a guarantee of a specific transaction in consideration of the advance fixing of the amount to be paid in respect of that transaction provided that it is effected under the preordained conditions and terms. When, however, the anticipated import or export transaction has been the subject of no Community or national administrative measure before fresh legislation comes into force, the mere fact of the pre-existence of a private contractual relationship cannot restrict the freedom of the Community authority to introduce new rules which apply equally to a legal relationship contracted for but not yet executed. Obviously, it would cause enormous complication for the Community authorities and would open the door to the possibility of abuse on the part of individuals if the fact that a contractual relationship formed under the previous system was outstanding were to attract guarantees such as those which can be recognized as the consideration for obligations imposed on undertakings. If the continuance of legislation which is advantageous for certain categories of contract actually creates expectations these cannot in any event be comparable in importance with those individually protected rights which, as I have stated, may attach to Community measures authorizing transactions guaranteed by the lodging of security. In the present case, Regulation No 2033/75 did in fact provide for its entry into force after a period of time sufficiently long, in normal circumstances, to enable contracts previously concluded to be performed. There is more than one reason, therefore, why I do not think it can be said that the general requirement regarding the protection of the legitimate expectations of persons concerned has been infringed. Invoking once more the principle that legitimate expectations must be safeguarded, the applicant contends that the period allowed between the publication and the entry into force of Regulation No 2033/75 was too short, especially in relation to cases like that under consideration, where importation was delayed by reasons of force majeure. It is at this juncture important to avoid the mistake of confusing any requirements arising from a general principle relating to force majeure (which I will deal with in a moment) with the question of the protection of the expectations of those concerned in the event of legislative amendments which adversely affect the execution of existing contracts. This last question has a bearing on the effect of all outstanding contracts and must therefore be answered in the light of normal circumstances, whereas force majeure comes into play only in cases which are affected by it and this occurs in one or two exceptional situations. Accordingly, the assessment of the adequacy of the time-limit fixed by Regulation No 2033/75 for its entry into force, as a provision capable of protecting the expectations of the parties to outstanding contracts, must not be complicated by factors connected with the different question of the effect of exceptional situations described as cases of force majeure. In the present case the applicant has not denied that, had it not been for the exceptional events which delayed the delivery of the goods by his supplier, he would, before the entry into force of Regulation No 2033/75, have been able to import into Germany the entire consignment of goods in respect of which he is now seeking compensation for damage. The real cause of the damage complained of is therefore not the inadequacy of the period of time which, under Regulation No 2033/75, was to run between publication of the latter and its entry into force. The real cause can consist solely of the fact that the Commission did not take account of the circumstances of force majeure relied upon by the applicant. This also disposes of the other ground of illegality invoked by IFG relating to the alleged breach of the principle of equality of treatment. It is claimed that this breach arose from the fact that the period of time which elapsed between the publication and the entry into force of Regulation No 2033/75 enabled traders to enter into fresh contracts for the importation of prepared beef and veal by providing for delivery between 5 August and 1 September 1975, and thus to import the goods in total freedom, whereas the applicant, which had concluded its contraa before 5 August, was unable to import all the goods covered by the contraa before 1 September owing to the unusual situation with which its supplier was faced. In fact this argument merely demonstrates that, given normal circumstances, the period in question enabled contracts already concluded or indeed yet to be concluded to be performed. The difference in the circumstances encountered by the existing contraa between IFG and the Romanian corporation was not the result of any inequality of treatment but of the difference, indeed the absolute uniqueness, of the factual situation, which is typical of the exceptional occurrences known as cases of force majeure.