3.

I shall not however leave it there, but consider whether statements of the defendants, as the applicant maintains, were capable of misleading exporters into thinking that they had only to adduce proof of arrival under the refund rules. Various matters have to be considered: — Primarily Regulation No 876/68 of the Council (OJ, English Special Edition 1968 (I), p. 234) and Regulation No 1041/67 of the Commission (OJ, English Special Edition 1967, p. 323) as amended by various amending regulations; — Comparisons of these provisions with other relevant regulations of the Community; — An answer by the Commission to a question in Parliament in 1970; — statements by officials ot the Commission in reply to questions by the applicant's lawyer; and — The actual practice of the national refund agencies. Before I go into this I should like to recall that the only complaint made against the Council is that it failed to deal with the legal position clearly in Regulation No 876/68 or to require the Commission in accordance with Article 152 of the EEC Treaty to introduce a clear regulation. The claims made against the Council are thus solely based on this. Further the various claims made by the applicant must be kept separate. It must be borne in mind in particular that with regard to the main claim relating to the payment of the amounts of refund at most matters are relevant which occurred until the time when the goods arrived in Morocco, that is, until the end of February 1971, for until then the applicant may be assumed to have had a power of disposal. Matters in respect of the period after spring 1971 are therefore relevant only in relation to the claims for the payment of lawyers' fees and court and procedural costs. (a) After these preliminary remarks I will first turn to the question whether Regulation No 876/68 of the Council and Regulation No 1041/67 of the Commission could give the impression, as the applicant thinks, that only arrival in the country of destination needed to be proved. I can deal relatively briefly with this for I have already dealt with these questions at length in my opinion in Case 125/75. On that occasion I stressed that in interpreting these regulations it was necessary in accordance with a current method to have regard to their general system as well as to the meaning and objective of the refund rules as these emerged in particular from the recitals in the preamble to the regulations. With regard to Regulation No 876/68 it appeared that ‘reached’ must relate to the market and accordingly importation into the particular country and marketing therein is necessary. With regard to Regulation No 1041/67 as amended by subsequent regulations it was to be noted that Article 8 in principle took proof of arrival as the essential point. However, it is also possible to require further evidence where there is doubt of actual marketing and this in the context cannot relate solely to arrival since additional forms of proof are mentioned. Further it appears from Article 4 and in particular having regard to the recitals in the preamble that in cases of doubt proof may be required of importation and the conditions under which importation was effected. The Court followed this as I have already mentioned in the introduction in that it stressed with regard to Regulation No 876/68 that to justify a claim for a refund it was essential that there should have been actual importation into the country of destination, that is, customs clearance into free circulation. Thus it is clear to me that the relevant basic regulations with the little effort of interpretation which is well within the capacity of the large commercial undertakings with their competent advisory staff cannot be said to be capable of misleading the applicant as described. (b) Other regulations of the Commission of 1970, 1971 and 1972 are also relevant (but it must be remembered that those originating in 1971 and 1972 can in no way be a basis for the applicant's main claim). The applicant thus takes the view that when Regulation No 1201/70 (JO 1970, L 140, p. 12) and No 1420/70 (JO 1970, L 157, p. 16) require proof of definitive importation for refunds in respect of butter exports to Romania and when Regulations No 914/71 (JO 1971, L 98, p. 44) No 1005/71 (JO 1971, L 109, p. 20), No 1467/71 (JO 1971, L 154, p. 12), No 1939/71 (JO 1971, L 203, p. 7) and No 676/72 (JO 1972, L 79, p. 84) in relation to refunds for exports of dairy products and butter to particular areas expressly mention release into free circulation and appropriate proof, it was possible to infer from this that only in such cases specifically provided for might additional proof going beyond arrival be required and that in all other cases proof of arrival was sufficient. It must be admitted that these are arguments which are calculated to impress. In my view however they are not ultimately cogent. Everyone knows that as a rule it is necessary to be very careful with such conclusions e contrario. In the present case the fact is clear that, according to the basic regulations on the right to a refund, reaching the market is the criterion and that over and above the proof of arrival which must normally be supplied the regulations allowed additional proof of import and marketing to be required. Against this background it cannot however seriously be argued that without express amendments of these regulations there was ground for assuming that something else applied because for certain special cases which are easily explicable on grounds of trade policy and legal characteristics of the countries concerned, proof of definitive importation, that is, of marketing, or proof of customs clearance into free circulation was always required. (c) The same applies, and let me say this immediately, to the reference to the fact that the Commission in Case 6/71, Rheinmühlen Düsseldorf v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1971] ECR 823 took the view in a related problem that customs clearance into free circulation was not decisive and also to the reference to the answer which the Commission gave to Question No 311/69 on 18 March 1970 in Parliament (JO 1970, C 38, p. 1). As we know, in this answer in relation to refunds for butter exports to Morocco it was explained with regard to Article 8 of Regulation No 1041/67 that the refunds would be paid ‘only if it is proved that the goods have actually arrived in the country of destination’ and it was stated further: ‘After that the Commission can no longer follow what becomes of the goods exported’. With regard to the first issue the observation suffices in my view that the legal position submitted for judgment was different for it related to rules applicable during the transitional period. At that time the Member States were at liberty to grant refunds; moreover it is significant that mention was made only of exports and not of reaching a country of destination. With regard to the second issue I have already stated in my opinion in Case 125/75 that it was only a brief answer to one of several subsidiary questions, which naturally could not deal exhaustively with the legal problems and that it would mean attaching far too much importance to the purpose of an answer to a political question if it were claimed to be an authentic interpretation of the relevant provisions. No one could infer from that that, despite the fact that the relevant regulations show that additional proof may be required, in fact only proof of actually reaching the country of destination needed to be given. Moreover it should not be overlooked that it was also stressed in the answer with regard to the variable nature of the refunds that this was necessary in order to take account of the particular situation regarding competition in relation to certain third countries and this, properly understood, includes a reference to the criterion of the situation of the market. All this already permits a finding that the Council can certainly not be accused of a wrongful act or omission. Regulation No 876/68 of the Council is not misleading as claimed by the applicant. Moreover, the Council had no cause, quite apart from the fact that the existence of any such kind of obligation of surveillance has not been proved, to require the Commission, as a result of the additional legal situation created by the latter governing proof in detail, to ensure that there was greater clarity or to provide for this itself in a regulation of the Council. (d) This does not however conclude the discussion of the complaints made against the Commission. In the applicant's view remarks concerning its problem by officials of the Commission and the practice of the national refund agencies which was known to the Commission and which it accordingly tolerated were of significance with regard to the applicant's attitude. — After what I have said I can be quite brief with regard to the second issue. It is important above all that the practice of the Hauptzollamt Hamburg-Jonas prior to the relevant transactions by the applicant was by no means such that the only proof of arrival ever demanded was that of physical arrival at the destination and nothing more. As we have seen, further proof, which can be regarded as additional proof within the meaning of Articles 4 and 8 of Regulation No 1041/67, was repeatedly required. From another point of view, since it was the German refund agency which mainly concerned the applicant, it is basically irrelevant what the corresponding practice in other Member States such as Belgium and the Netherlands appeared to be. If their practice was such as the applicant claims, namely always to require only proof of arrival (and my impression is that at least in France and in the Netherlands this was not the case), it should be observed that this would be relevant to the applicant's argument only if it were shown (which it has not been) that the refund agencies of other Member States had cause at that time for misgivings, that is, for the assumption that devious transactions were afoot, and that they nevertheless did not require appropriate additional proof in such cases. Moreover it should be added in this connexion that any differing treatment of the right to a refund in the Member States and the fact that the Commission did nothing about it is irrelevant to the present case because the applicant's claims for compensation are not based on infringement of the prohibition against discrimination but only on the misleading of the applicant with regard to the conditions for claiming the refund which, as we have seen, does not come into question. — With regard to the applicant's reference to remarks made by certain officials of the Commission, as to which only notes made by the applicant's counsel exist, it must be said on the other hand as far as Mr Ehlermann is concerned that he expressly stressed that he was giving only a personal opinion since he was no longer responsible for that sphere. Moreover he wished to make further inquiries, so that it could not be said that a definitive attitude had been adopted at the time of the telephone conversation with the applicant on 12 February 1971, to which reference has been made. So far as concerns what Mr Pierru said it appears from the note produced by the applicant simply that Mr Pierru was informed that the representatives of the Federal Republic of Germany would be satisfied with proof that the goods had in fact reached Morocco and would not require proof of marketing; it does not however follow that this was also the opinion of the said official of the Commission. Both matters, even if they can be attributed to the Commission, are scarcely capable of providing a solid basis for business transactions or for starting legal proceedings. In addition there is, as also appears from the documents produced by the applicant, the fact that the applicant knew on 12 November 1971 that the Management Committee for Cereals was of the almost unanimous opinion that proof of unloading was not sufficient and that it must also be proved that a sale had been concluded with a buyer in the country of destination. Moreover it was expressly stated in a letter from the Commission to the applicant's counsel on 16 February 1972 that in the opinion of the officers of the Commission there was nothing in Community law to prevent Member States from imposing additional conditions in particular cases for the grant of a higher refund as provided for in Article 4 of Regulation No 1041/67 or from requiring supplementary forms of proof. It was accordingly clear at that time at the latest, that is, before the proceedings were brought against the Hauptzollamt Hamburg-Jonas, that the applicant's narrow view of the law on proof with regard to the right to a refund, should it ever have amounted to a conviction, was not shared by the relevant Community circles. (e) It is thus clear in all respects that the Commission cannot be reproached for giving the impression by remarks attributable to it that proof of arrival was all that was necessary for refunds. At the same time and in the same way it is clear that one of the most essential conditions for the claims to compensation made by the applicant is lacking and for this reason it is unnecessary to go into the other conditions necessary for a claim based on a wrongful act or omission.