I —

The claim that the ‘decision’ taken by the Commission should be annulled. Although the applicant does not specify the decision in question, it might well have been thought prima facie that it was the letter from the Commission dated 7 October 1977. This is not so, for the contested measure is ‘undoubtedly’ the notification contained in the telex message sent by the Commission on 25 February 1977 to the French Permanent Representation, mentioned by the Commission in its objection of inadmissibility and produced by it at the request of the Court. The passage is worded as follows: ‘2. The five following cases do not justify the application of Regulation No 1608/74: P 30 A W contract of 23 July 1974 P 30 B B contract of 5 March 1974 P 42 A contract of 25 March 1975 P 45 B contract of 4 April 1975 P 58 K contract of 1 August 1974 In all these cases the contracts were entered into at a time when those concerned had to take account of the application of monetary compensatory amounts. On the dates in question monetary compensatory amounts applied in France and their abolition did not occur until May 1975. Accordingly there appears to be no justification for exempting the exports in question from the monetary compensatory amounts applicable as from 25 March 1976. 3. The French Government is requested to withdraw the cases referred to at point 2’. The applicant claims that a reading of that document shows that there was indeed a ‘measure’ in which the Commission objected to the ‘intention’ of the French authorities to exempt certain contracts from the monetary compensatory amounts. I agree with the Commission in thinking these claims inadmissible. According to the applicant itself the said measure reveals the Commission's objection to the ‘intention’ notified by the French authorities to exempt from monetary compensatory amounts certain contracts ‘other than those concerned in the present case’ (observations of the applicant, p. 11). They relate in fact to contracts for processed cereals. As a result: 1. The French authorities did not manifest or, within the meaning of Article 4 (1) of Regulation No 1608/74, inform the Commission of their intention to exempt the two sugar contracts specifically in question from compensatory amounts, ‘indicating the reasons therefor and the proof furnished’. 2. The Commission's ‘opinion’ does not specifically refer to those two contracts. As the applicant, with reference to the third and fourth recitals of the preamble to the regulation, observes, the latter is intended to protect traders from the damaging consequences which might result from the application of monetary compensatory amounts not on the basis of abstract assumptions but ‘in the particular circumstances of the case in point’. It therefore appears to me that in the present case the French authorities rightly or wrongly declined to make use of the procedure provided for in Article 4, either because they thought that such a request was devoid of purpose or because they thought, as the applicant alleges, that the question was not of vital importance to them. To agree that the opinion in question ‘comes within the scope of the procedure of Article 4 of Regulation No 1608/74’ does not mean that it constitutes a measure of direct and individual concern to the applicant. On the contrary, even if that opinion is evidence of an unfavourable attitude to the applicant's views, it was nevertheless necessary for the French authorities to manifest in some way their intention to exempt the contracts in question. The wording of Article 4 required the French Government to inform the Commission of its intention specifically to exempt those contracts; that is the condition subject to which the Management Committee procedure, provided for by that article, can if necessary be implemented. So long as the French Government has not officially asked the Commission to give its views according to the procedure provided for in the regulation, it has not exhausted the preliminary powers which are its exclusive preserve and which are referred to in the Court's judgment of 2 March 1978, that being one of the conditions necessary for any application of the regulation to ensure natural justice. It is not a question of considering whether the ‘opinion’ attributed to the Commission is lawful; even if the ‘principle’ that Regulation No 1608/74 does not apply to contracts entered into before May 1975 appears to be effective for all contracts entered into before that date, it was never in fact applied to the two contracts in question in the correspondence exchanged between the Commission and the French authorities; ‘application by analogy’ is not sufficient. It therefore does not seem to me possible to regard as admissible an application against a ‘measure’ of the Commission ratifying an ‘implied application’ to the applicant of a principle which the French Government righdy or wrongly considered to be correct. It would have been necessary ‘to inform the Commission of its intention’ to exempt the contracts in question, for it would then have clearly established who was responsible for the refusal to give exemption. The applicant's advocate, who is very familiar with the case-law of the Court, relies on the judgment of 1 July 1965Töpfer ([1965] ECR 405). But that was a quite different case, namely that of a decision of the Commission which came into force immediately maintaining protective measures taken by a Member State, which decision was addressed to that Member State and published in the Official Journal. On the other hand, no mention has been made of the judgment of 17 July 1959Phoenix-Rheinruhr ([1959] ECR 75). In that case, contrary to the opinion of Mr Advocate General Lagrange, the Court ruled that when the High Authority sends a letter to an auxiliary agency entrusted by it with the execution of certain precise functions, informing it of certain general principles, that letter may constitute a mere internal office directive, even if it was published in the Journal Officiei and if it refers to measures which the agency must take in regard to undertakings in the Community. In any event, this is true if it emerges from the letter that the High Authority did not intend to take a decision. That case-law appears to me, a fortiori, applicable to the present case. Just as the Commission did not ask the opinion of the French Government before replying to the applicant, the latter did not ask the Commission for a formal statement of its views. It is the lawfulness of the imposition of the monetary compensatory amounts by the French customs authorities that the applicant or his sellers ought to have questioned before the French courts and not the lawfulness of the alleged ‘measure’ by which the Commission objected to an ‘intention’ to grant exemption which had not even been formulated.