Judgment of the Court of 13 November 1973. - Wilhelm Werhahn Hansamühle and others v Council of the European Communities. - Joined cases 63 to 69-72.



European Court reports 1973 Page 01229

Greek special edition Page 00759

Portuguese special edition Page 00477



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . ACTION FOR DAMAGES AGAINST THE EEC - REPRESENTATION BEFORE THE COURT OF JUSTICE - INSTITUTIONS LIABLE - RIGHT OF ACTION - ADMISSIBILITY

( EEC TREATY, ARTICLE 215 )

2 . EEC - NON-CONTRACTUAL LIABILITY - LEGISLATIVE ACT INVOLVING A CHOICE AS TO POLICY - DAMAGE - INFRINGEMENT OF A HIGHER RULE OF LAW

( EEC TREATY, ARTICLE 215 )

3 . AGRICULTURE - COMMON AGRICULTURAL POLICY - OBJECTIVES - PRIORITY IN RELATION TO THE MAINTENANCE OF ESTABLISHED POSITIONS - ADMISSIBILITY - STABILIZATION OF THE MARKET - CONCEPT

( EEC TREATY, ARTICLE 39 )

4 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKET - CEREALS - DURUM WHEAT - INTRODUCTION OF A SINGLE DERIVED INTERVENTION PRICE - DISADVANTAGES FOR A PARTICULAR CATEGORY AFFECTED - ABSENCE OF ILLEGALITY - EXTENT OF THE COUNCIL' S POWERS

( REGULATION NO 1528/71 OF THE COUNCIL OF 12 JULY 1971, ARTICLE 4 )

Summary

1 . WHERE COMMUNITY LIABILITY IS INVOLVED BY REASON OF THE ACT OF ONE OF ITS INSTITUTIONS, IT SHOULD BE REPRESENTED BEFORE THE COURT BY THE INSTITUTION OR INSTITUTIONS AGAINST WHICH THE MATTER GIVING RISE TO LIABILITY IS ALLEGED .

2 . THERE IS NO LIABILITY ON THE PART OF THE COMMUNITY FOR DAMAGE WHICH INDIVIDUALS MAY HAVE SUFFERED BY REASON OF A LEGISLATIVE ACT INVOLVING CHOICES OF ECONOMIC POLICY, UNLESS THERE IS A SUFFICIENTLY FLAGRANT INFRINGEMENT OF A HIGHER RULE OF LAW PROTECTING THE INDIVIDUAL .

3 . THE COMMUNITY INSTITUTIONS MAY TEMPORARILY GIVE PRIORITY TO SOME OF THE OBJECTIVES OF ARTICLE 39, AS COMPARED WITH THE MAINTENANCE OF ESTABLISHED POSITIONS . THE CONCEPT OF STABILIZATION OF THE MARKET CANNOT COVER THE MAINTENANCE OF POSITIONS ALREADY ESTABLISHED UNDER PREVIOUS MARKET CONDITIONS .

4 . IF THE COUNCIL IS ADOPTING A SINGLE DERIVED INTERVENTION PRICE OMITTED TO CORRECT THE DISADVANTAGES TO WHICH GERMAN CEREAL MEAL PRODUCERS ARE INDIRECTLY SUBJECT IN RELATION TO THEIR FRENCH COMPETITORS, SUCH AN OMISSION IS NEVERTHELESS NOT CAPABLE OF RENDERING THE PROVISIONS IN QUESTION ILLEGAL . THE COUNCIL WAS NOT OBLIGED TO ASCERTAIN WHETHER CIRCUMSTANCES OF A SPECIAL KIND COULD MILITATE AGAINST THE APPLICATION OF PROVISIONS THAT NORMALLY WOULD HAVE BEEN SATISFACTORY .

Parties

IN JOINED CASES 63 TO 69/72

WILHELM WERHAHN HANSAMUEHLE, NEUSS/RHEIN,

KURT KAMPFFMEYER, MUEHLENVEREINIGUNG KG, HAMBURG,

LUDWIGSHAFENER WALZMUEHLE ERLING KG, LUDWIGSHAFEN,

KURT KAMPFFMEYER MUEHLENVEREINIGUNG KG, HAMBURG, ( AS THEY ARE NOW KNOWN ) AS SUCCESSORS TO THE RIGHTS AND OBLIGATIONS OF DUISBURGER MUEHLENWERKE AG,

HEINRICH AUER MUEHLENWERKE KG A.A ., COLOGNE-DEUTZ,

KURT KAMPFFMEYER MUEHLENVEREINIGUNG KG, HAMBURG, ( AS THEY ARE NOW KNOWN ) AS SUCCESSORS TO THE RIGHTS AND OBLIGATIONS OF SUEDDEUTSCHE MUEHLENWERKE AG,

PFAELZISCHE MUEHLENWERKE GMBH, MANNHEIM,

REPRESENTED BY FRITZ MODEST OF THE HAMBURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ME FELICIEN JANSEN, BAILIFF, 21 RUE ALDRINGEN, APPLICANTS,

V

COUNCIL OF THE EUROPEAN COMMUNITIES, BRUSSELS, REPRESENTED BY PROFESSOR D . VIGNES, LEGAL ADVISER WITH THE LEGAL SERVICE OF THE COUNCIL, AS AGENT, ASSISTED BY PROFESSOR H . P . IPSEN OF THE UNIVERSITY OF HAMBURG, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF J . N . VAN DEN HOUTEN, DIRECTOR OF THE LEGAL SERVICE OF THE EUROPEAN INVESTMENT BANK, 2 PLACE DE METZ,

AND

COMMISSION OF THE EUROPEAN COMMUNITIES, BRUSSELS, REPRESENTED BY P . GILSDORF, LEGAL ADVISER, ASSISTED BY PROFESSOR H . P . IPSEN OF THE UNIVERSITY OF HAMBURG, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF EMILE REUTER, LEGAL ADVISER TO THE COMMISSION, 4 BOULEVARD ROYAL, DEFENDANTS,

Subject of the case

CLAIM FOR DAMAGES AND INTEREST BASED UPON ARTICLE 215, SECOND PARAGRAPH, OF THE EEC TREATY,

Grounds

1 THESE ACTIONS HAVE THE SAME SUBJECT MATTER AND IT IS APPROPRIATE TO DECIDE UPON THEM IN ONE AND THE SAME JUDGMENT .

2 THE ACTIONS SEEK - IN THE TERMS OF THE APPLICATIONS - AN ORDER JOINTLY AGAINST THE COUNCIL AND THE COMMISSION AND - IN THE TERMS OF THE REPLY - AN ORDER AGAINST THE COMMUNITY FOR PAYMENT OF AN AMOUNT OF DM 9 487 281 BY WAY OF COMPENSATION TO THE APPLICANTS FOR DAMAGE SUSTAINED BY THEM DURING THE CEREAL MARKETING YEAR 1971/1972 AS A RESULT OF THE NON-RATIONAL AND ILLEGAL MANAGEMENT OF THE COMMON ORGANIZATION OF THE MARKET IN CEREALS, AS REGARDS DURUM WHEAT .

THE REGULATIONS PARTICULARLY REFERRED TO REGULATION NO 120/67 OF THE COUNCIL OF 13 JUNE 1967 ( OJ L 117, 19 . 6 . 1967, P . 2269/67 ) ESTABLISHING A COMMON ORGANIZATION OF THE MARKET IN CEREALS, REGULATION NO 1054/71 OF 25 MAY 1971 ( OJ L 115, 27 . 5 . 1971, P . 8 ), NO 1120/71 OF 28 MAY 1971 ( OJ L 118, 31 . 5 . 1971, P . 3 ) AND NO 1530/71 OF 12 JULY 1971 ( OJ L 162, 20 . 7 . 1971, P . 16 ) FIXING IN RELATION TO THE CEREAL MARKETING YEAR 1971/1972 THE TARGET PRICE FOR DURUM WHEAT AT 127.50 U.A ., THE THRESHOLD PRICE AT 125.25 U.A ., THE BASIC INTERVENTION PRICE AT 119.85 U.A ., THE SINGLE DERIVED INTERVENTION PRICE AT 112.44 U.A . AND THE GUARANTEED MINIMUM PRICE AT 147.90 U.A .

3 THE SYSTEM OF AID TO COMMUNITY PRODUCTION OF DURUM WHEAT WITHIN FRANCE AND IN ITALY, AS SET UP BY THESE REGULATIONS, ALLOWED THE FRENCH AND ITALIAN CEREAL MEAL PRODUCERS TO OBTAIN HOME-GROWN DURUM WHEAT AT THE INTERVENTION PRICE ( 112.44 U.A .) OR CLOSE THERETO, WHILST THE GERMAN CEREAL MEAL PRODUCERS WERE OBLIGED TO PURCHASE DURUM WHEAT IMPORTED FROM THIRD COUNTRIES AT THE THRESHOLD PRICE ( 125.25 U.A .).

PURSUANT TO ARTICLE 10 OF REGULATION NO 120/67, AID GRANTED TO DURUM WHEAT PRODUCERS SHALL BE EQUAL TO THE DIFFERENCE BETWEEN THE GUARANTEED MINIMUM PRICE ( 147.90 U.A .) AND THE INTERVENTION PRICE APPLICABLE TO THE MARKETING CENTRE OF THE AREA WITH THE LARGEST SURPLUS, I.E . IT AMOUNTS IN THE PRESENT CASE TO THE SINGLE DERIVED INTERVENTION PRICE, THAT IS TO SAY 112.44 U.A .

THIS PROVISION, COMBINED WITH THE STRUCTURE OF THE DURUM WHEAT MARKET IN FRANCE, IN THE APPLICANTS' VIEW NECESSARILY RESULTS IN GIVING FRENCH MILLS AN ARTIFICIAL ADVANTAGE AS REGARDS THEIR COST OF PRODUCTION WHICH ON THE GERMAN MARKET FOR CEREAL MEAL PRODUCED DISTORTIONS IN COMPETITION TO THE DETRIMENT OF GERMAN CEREAL MEAL PRODUCERS .

4 THE APPLICANTS BASE THEIR RIGHT TO COMPENSATION IN THE MAIN ON THEIR COMPLAINT THAT THE COMMUNITY INSTITUTIONS ORGANIZED IN A DEFECTIVE MANNER THE AID TO DURUM WHEAT PRODUCTION, IN PARTICULAR BY FIXING THE INTERVENTION PRICE AT TOO LOW A LEVEL IN RESPECT OF HOME-GROWN DURUM WHEAT, AND THE THRESHOLD PRICE AT TOO HIGH A LEVEL IN RESPECT OF IMPORTED DURUM WHEAT, AT ANY RATE AS REGARDS IMPORTS TO COUNTRIES OTHER THAN FRANCE AND ITALY .

IF THE INTERVENTION PRICE HAD BEEN FIXED AT A HIGHER LEVEL, THEN THE PRODUCERS OF DURUM WHEAT WOULD NEVERTHELESS HAVE BEEN ASSURED OF RECEIVING THE MINIMUM PRICE GUARANTEED TO THEM BY THE AID SYSTEM ( 147.90 U.A .), BUT THE FRENCH CEREAL MEAL PRODUCERS WOULD IN THAT CASE HAVE PAID FOR THEIR BASIC PRODUCT A PRICE NEARER TO THAT PAID BY THEIR COMPETITORS WHO WERE OBLIGED TO OBTAIN THEIR SUPPLIES FROM THIRD COUNTRIES .

IN THE ABSENCE OF SUCH A MEASURE, THE DISCRIMINATION ALLEGED COULD HAVE BEEN AVOIDED BY REDUCING THE THRESHOLD PRICE IN A WAY THAT ALLOWED THE CEREAL MEAL PRODUCERS WHO HAD VIRTUALLY NO ACCESS TO THE FRENCH AND ITALIAN DURUM WHEAT MARKETS TO PURCHASE THEIR RAW MATERIAL AT PRICES NEAR TO THOSE PAID BY THEIR COMPETITORS WHO, AT ANY RATE INDIRECTLY, WERE FAVOURED BY THE AID MEASURES .

5 IN THEIR REPLY THE APPLICANTS FURTHER AND AS A SUBSIDIARY POINT REFER TO THE EXISTENCE OF A PRINCIPLE UNDER WHICH THERE SHOULD BE COMPENSATION FOR AN ILLEGAL INTERVENTION BY A PUBLIC AUTHORITY, EQUIVALENT TO EXPROPRIATION .

I - AS REGARDS THE ADMISSIBILITY OF THE APPEAL BEARING IN MIND THAT IT IS DIRECTED AGAINST THE COUNCIL AND THE COMMISSION JOINTLY

6 ACCORDING TO THE DEFENDANTS THE APPEAL IS INADMISSIBLE SINCE IT APPLIES FOR AN ORDER AGAINST THE COUNCIL AND THE COMMISSION JOINTLY, WHILST ARTICLE 215 LAYS DOWN THAT IT IS THE COMMUNITY WHICH HAS TO MAKE GOOD DAMAGE CAUSED BY ITS INSTITUTIONS .

ACCORDING TO THE COUNCIL, THE COMMUNITY OUGHT IN SUCH PROCEEDINGS TO BE REPRESENTED BY THE INSTITUTION AGAINST WHICH THE ALLEGATION IS MADE .

ACCORDING TO THE COMMISSION ON THE OTHER HAND ONE MUST BY ANALOGY TO ARTICLE 211 OF THE TREATY HOLD THAT WHATEVER THE INSTITUTION THAT CAUSED THE FACT ALLEGED, IT IS THE COMMISSION' S FUNCTION TO REPRESENT THE COMMUNITY BEFORE THE COURT .

7 ARTICLE 211 OF THE TREATY DEALS WITH THE LEGAL CAPACITY AND THE REPRESENTATION OF THE COMMUNITY IN THE LEGAL SYSTEMS OF THE DIFFERENT MEMBER STATES .

BY REASON OF THE DIFFERENCES IN THIS RESPECT WHICH ARE INHERENT IN THESE LEGAL SYSTEMS IT WAS DESIRABLE TO ESTABLISH A RULE APPLICABLE TO ALL CASES .

UNDER THE COMMUNITY LEGAL SYSTEM ON THE OTHER HAND IT IS IN THE INTERESTS OF A GOOD ADMINISTRATION OF JUSTICE THAT WHERE COMMUNITY LIABILITY IS INVOLVED BY REASON OF THE ACT OF ONE OF ITS INSTITUTIONS, IT SHOULD BE REPRESENTED BEFORE THE COURT BY THE INSTITUTION OR INSTITUTIONS AGAINST WHICH THE MATTER GIVING RISE TO LIABILITY IS ALLEGED .

8 THE APPLICANTS ALLEGE THAT THIS MATTER HAS ITS ORIGIN BOTH WITH THE COMMISSION AND WITH THE COUNCIL, THE FIRST FOR HAVING MADE A PROPOSAL, THE SECOND FOR HAVING LEGISLATED .

ACCORDINGLY THEY ARE JUSTIFIED IN BRINGING THE PROCEEDINGS AGAINST THE COMMUNITY AS REPRESENTED BY THE TWO INSTITUTIONS .

FURTHERMORE, THE FACT THAT AN ORDER IS APPLIED FOR JOINTLY AGAINST THE TWO INSTITUTIONS AND NOT SPECIFICALLY AGAINST THE COMMUNITY, IS NOT OF A KIND THAT WOULD RESULT IN INADMISSIBILITY OF THE APPLICATION SINCE IT DOES NOT AFFECT THE RIGHTS OF THE DEFENCE .

9 THE APPLICATION IS ADMISSIBLE .

II - ON THE SUBSTANCE

10 SINCE THE MATTER DEALS WITH A LEGISLATIVE ACT INVOLVING CHOICES OF ECONOMIC POLICY, THERE IS NO LIABILITY ON THE PART OF THE COMMUNITY FOR DAMAGE WHICH INDIVIDUALS MAY HAVE SUFFERED BY THE REASON OF THIS ACT, BEARING IN MIND THE PROVISIONS OF ARTICLE 215, SECOND PARAGRAPH, OF THE TREATY, UNLESS THERE IS A SUFFICIENTLY FLAGRANT INFRINGEMENT OF A SUPERIOR RULE OF LAW PROTECTING THE INDIVIDUAL .

1 . AS REGARDS THE INFRINGEMENT OF ARTICLE 39 ( 1 ) ( C )

11 THE APPLICANTS ALLEGE AGAINST THE DEFENDANT INSTITUTIONS AN INFRINGEMENT OF ARTICLE 30 ( 1 ) ( C ), PURSUANT TO WHICH THE COMMON AGRICULTURAL POLICY HAS INTER ALIA THE OBJECTIVE OF STABILIZING MARKETS .

12 IN CREATING A SYSTEM OF AIDS INTENDED TO FAVOUR THE PRODUCTION OF DURUM WHEAT IN THE COMMUNITY THE INSTITUTIONS SOUGHT TO ATTAIN SEVERAL OF THE OBJECTIVES IN ARTICLE 39, IN PARTICULAR ASSURING THE AVAILABILITY OF SUPPLIES IN THE COMMON MARKET AND THE STABILITY OF THE MARKET BY ENCOURAGING THE CULTIVATION OF DURUM WHEAT WHICH IS SHOWING AN UNFAVOURABLE BALANCE AS COMPARED WITH THAT OF COMMON WHEAT .

THE CONCEPT OF STABILIZATION OF THE MARKETS CANNOT COVER THE MAINTENANCE AT ALL COSTS OF POSITIONS ALREADY ESTABLISHED UNDER PREVIOUS MARKET CONDITIONS .

BESIDES, IT EMERGES FROM PARTS OF THE RECORD THAT THE PRODUCTION OF DURUM WHEAT, WHICH BEFORE 1966 HAD ONLY A LOCAL ECONOMIC SIGNIFICANCE, HAS INCREASED TO SUCH AN EXTENT THAT AT THE TIME OF THE APPLICATION IT PERMITTED COMMUNITY REQUIREMENTS TO BE COVERED TO THE EXTEND OF MORE THAN 80 PER CENT .

A NEW PRODUCTION OF THIS MAGNITUDE MUST NORMALLY RESULT IN NEW MOVEMENTS OF TRADE BETWEEN MEMBER STATES .

13 BY TEMPORARILY GIVING PRIORITY TO SOME OF THE OBJECTIVES OF ARTICLE 39, AS COMPARED WITH THE MAINTENANCE OF ESTABLISHED POSITIONS, THE INSTITUTIONS DID NOT INFRINGE PARAGRAPH 1 ( C ) OF THIS PROVISION .

2 . AS REGARDS THE INFRINGEMENT OF ARTICLE 40 ( 3 ), SECOND PARAGRAPH, OF THE TREATY AND OF THE PRINCIPLE OF PROPORTIONALITY

14 THE APPLICANTS ALLEGE THAT THE RESPONDENTS INFRINGED THE RULE AGAINST DISCRIMINATION AND THE PRINCIPLE OF PROPORTIONALITY EXPRESSED IN ARTICLE 40 ( 3 ) OF THE TREATY, BY NOT ENSURING THAT THE SYSTEM OF AIDS FOR PRODUCTION OF DURUM WHEAT BE ACCOMPANIED BY MEASURES THAT WOULD GUARANTEE TO MILLS OF MEMBER STATES NOT PRODUCING THIS CEREAL THE AVAILABILITY OF IMPORTED DURUM WHEAT FROM THIRD COUNTRIES AT THE SAME PRICE LEVEL AS THAT PAID BY THEIR FRENCH AND ITALIAN COMPETITORS .

15 THE RESPONDENTS DO NOT DENY THAT THE SYSTEM OF AIDS WHICH IS THE SUBJECT MATTER OF THE PROCEEDINGS RESULTED IN A ADVANTAGE FOR FRENCH MILLS AS REGARDS THE COSTS OF PRODUCTION FOR CEREAL MEAL, BUT THEY CONSIDER THAT THIS ADVANTAGE COULD NOT HAVE EXCEEDED DM 30 PER METRIC TON, WHILST ACCORDING TO THE APPLICANTS IT IS OF THE ORDER OF DM 38 TO 58 METRIC TONS .

ACCORDING TO THE LATTER THIS ADVANTAGE AROSE - AT ANY RATE TO A LARGE EXTENT - FROM THE UNUSUALLY LARGE DIFFERENCE - COMPARED WITH THE PRICE OF OTHER CEREALS - BETWEEN THE THRESHOLD PRICE AND THE SINGLE DERIVED INTERVENTION PRICE FOR DURUM WHEAT .

16 IF THE AUTHORS OF THE REGULATION - FOLLOWING IN THIS RESPECT THE DECLARATIONS MADE BY THE RESPONDENTS AT THE HEARING - BELIEVED THAT THE PRICES DEMANDED BY FRENCH AGRICULTURAL PRODUCERS WOULD NOTWITHSTANDING THE AID BE ABOVE THE LEVEL OF THE INTERVENTION PRICE, THEN REALITY DID NOT ACCORD WITH THIS FORECAST, SINCE THE PRICES PAID BY THE CEREAL MEAL PRODUCERS IN FACT REMAINED AT ABOUT THAT PRICE LEVEL .

NEVERTHELESS EVERYTHING SEEMED TO ENCOURAGE THESE AGRICULTURAL PRODUCERS TO DEMAND A HIGHER PRICE, SINCE THE AID GRANTED TO THEM IN ADDITION TO THE PRICE THEY OBTAINED DID NOT AMOUNT TO BRINGING THEIR INCOME TO THE LEVEL OF THE GUARANTEED MINIMUM PRICE, BUT WAS IN FACT ONCE AND FOR ALL FIXED AT 35.46 U.A . FOR THE CEREAL MARKETING YEAR 1971/72 ( I.E ., THE DIFFERENCE BETWEEN THE INTERVENTION PRICE AND THE GUARANTEED MINIMUM PRICE ) WHATEVER THE MARKET PRICE THEY COULD OBTAIN FROM THE CEREAL MEAL PRODUCERS .

ACCORDINGLY THE ADVANTAGEOUS PRICES OBTAINED BY THE LATTER SEEMED TO ORIGINATE IN THE CLOSED STRUCTURE OF THE FRENCH MARKET IN DURUM WHEAT AND ESPECIALLY IN THE PARTICULARLY CLOSE TIES THERE EXISTING BETWEEN MILLS AND AGRICULTURAL PRODUCERS .

THE APPLICANTS DO NOT SEEM TO HAVE SERIOUSLY INTENDED CHANGING THIS SITUATION BY ATTEMPTING TO PENETRATE THE FRENCH MARKET BUT RATHER SEEM TO HAVE EXPECTED TO SECURE FROM A FIXING OF COMMUNITY PRICES THE MEANS OF COMPENSATING FOR THESE DISADVANTAGES .

THEY FURTHER ARGUE THAT EVEN IN THE EVENT OF THE MARKET BEING FREED, FRENCH CEREAL MEAL PRODUCERS WOULD HAVE RETAINED A DE FACTO ADVANTAGE BY REASON OF THEIR MORE FAVOURABLE GEOGRAPHICAL POSITION CLOSE TO PRODUCTION CENTRES .

17 THIS FACT DOES NOT IN ITSELF CONSTITUTE A PROHIBITIVE KIND OF DISCRIMINATION BUT RATHER THE CONSEQUENCE - THAT IS NOT CONTRARY TO THE RULES OF THE TREATY - OF A MORE ADVANTAGEOUS LOCATION OF FRENCH UNDERTAKINGS .

NEVERTHELESS IT DOES APPEAR THAT THE DIFFERENCE BETWEEN THE GERMAN AND FRENCH MARKET PRICES FOR DURUM WHEAT EXCEEDS WHAT WOULD RESULT FROM THIS ADVANTAGE, EXPRESSED IN TERMS OF THE DIFFERENCE IN TRANSPORT COSTS OF CEREAL MEAL AND DURUM WHEAT RESPECTIVELY BETWEEN THE PARIS AREA AND THE GERMAN MARKETING CENTRES .

WHILST THIS DISPARITY IN PRICES DOES NOT ORIGINATE IN REGULATION NO 120/67 ITSELF, YET IT IS NONETHELESS TRUE THAT THE IMPLEMENTING PROVISIONS OF THIS REGULATION, BY NOT TAKING INTO ACCOUNT THE SPECIAL SITUATION OF THE FRENCH MARKET, HAVE FACILITATED ITS CONTINUING EXISTENCE .

18 IT IS THEREFORE RIGHT TO EXAMINE WHETHER, FACED WITH THIS SITUATION, THE COUNCIL OUGHT NOT TO HAVE TAKEN ACTION BY PROVIDING, EVEN ON A PROVISIONAL BASIS, MEASURES THAT WOULD ENSURE EQUALITY OF COMPETITIVE CONDITIONS AS BETWEEN THE CEREAL MEAL PRODUCERS OF THE DIFFERENT MEMBER STATES .

ACCORDING TO THE APPLICANTS THE OBJECTIVES AIMED AT BY THE SYSTEM OF AIDS COULD HAVE BEEN ATTAINED WITHOUT IMPOSING UPON THEM THAT DISTORTION OF COMPETITION OF WHICH THEY COMPLAIN, PARTICULARLY BY A REDUCTION IN THE THRESHOLD PRICE FOR DURUM WHEAT .

THE ALLEGED INFRINGEMENT OF THE PRINCIPLE OF PROPORTIONALITY RESULTS FROM THE EXCESSIVELY HIGH LEVEL OF THRESHOLD PRICES, THAT IS IN EXCESS OF ITS FUNCTION OF PROTECTING THE COMMUNITY MARKET, CONTRARY TO ARTICLE 40 ( 3 ) OF THE TREATY, ACCORDING TO WHICH THE COMMON ORGANIZATION MAY INCLUDE ALL MEASURES " REQUIRED " TO ATTAIN THE OBJECTIVES SET OUT IN ARTICLE 39 BUT " SHALL BE LIMITED " TO PURSUIT OF THESE OBJECTIVES .

SUCH PROTECTION IT IS SAID, DOES NOT NECESSITATE A THRESHOLD PRICE OF 125.25 U.A .

19 THERE IS A RELATIONSHIP BETWEEN THE COST PRICE OF DURUM WHEAT AND OF COMMON WHEAT, THE FORMER BEING GENERALLY APPROXIMATELY 20 PER CENT HIGHER THAN THE LATTER .

AT THE RISK OF SEEING AN UNDESIRABLE KIND OF INTERFERENCE MAKING ITS APPEARANCE ON THE MARKET IN THESE CEREALS, THIS RELATIONSHIP MUST BE TAKEN INTO ACCOUNT IN FIXING THEIR RESPECTIVE THRESHOLD PRICES .

THE PRICES FIXED FOR THE MARKETING YEAR 1971/1972, VIZ . 125.25 U.A . FOR DURUM WHEAT AND 107.35 U.A . FOR COMMON WHEAT, TAKE THIS NECESSITY INTO ACCOUNT .

BESIDES, THE PROTECTION GRANTED TO COMMUNITY-GROWN DURUM WHEAT, WHICH IS EXPRESSED BY THE DIFFERENCE OF 12.81 U.A . BETWEEN THE SINGLE DERIVED INTERVENTION PRICE AND THE THRESHOLD PRICE, IS IN FACT LESS THAN THE PROTECTION GRANTED TO COMMON WHEAT, THAT BEING 14.01 U.A . AND NOT 6.53 U.A . AS IS CLAIMED BY THE APPLICANTS .

IN FACT, TO MEASURE THE RESPECTIVE DEGREES OF PROTECTION ENJOYED BY THESE TWO CEREALS, ONE MUST UTILIZE THE SAME TERMS, THAT IS TO SAY THE THRESHOLD PRICE AND THE SINGLE DERIVED INTERVENTION PRICE AND NOT, AS WAS DONE BY THE APPLICANTS, TO TAKE ON ONE OCCASION THE THRESHOLD PRICE AND THE BASIC INTERVENTION PRICE AND ON ANOTHER OCCASION THE THRESHOLD PRICE AND THE DERIVED INTERVENTION PRICE .

20 THUS IT DOES NOT SEEM THAT THE COUNCIL, IN ITS ASSESSMENT OF THE LEVEL OF THE THRESHOLD PRICE, WENT BEYOND WHAT MIGHT BE CONSIDERED NECESSARY FOR ACHIEVING THE OBJECTS OF THE AID SYSTEM FOR DURUM WHEAT .

21 ACCORDING TO THE APPLICANTS, INSTEAD OF LOWERING THE THRESHOLD PRICES, THE INSTITUTION COULD IN ANY EVENT HAVE FIXED A LOWER THRESHOLD PRICE APPLYING TO THOSE MEMBER STATES NOT PRODUCING THESE CEREALS, WHILST MAINTAINING THE ONE IN EXISTENCE FOR THE TWO PRODUCER STATES IN THE COMMUNITY, I.E ., FRANCE AND ITALY .

22 SUCH A DIFFERENTIATION WOULD NOT ONLY RUN COUNTER TO THE REALIZATION OF THE SINGLE MARKET AIMED AT BY REGULATION NO 120/67 OF 13 JUNE 1967 SETTING UP A COMMON ORGANIZATION OF THE MARKET IN CEREALS BUT WOULD PUT THE FREE CIRCULATION OF GOODS IN JEOPARDY .

23 IT IS ALSO NECESSARY TO EXAMINE WHETHER THE OBJECTIVES OF THE AID SYSTEM FOR DURUM WHEAT OUGHT NOT TO HAVE BEEN ACHIEVED BY FIXING A HIGHER INTERVENTION PRICE WHILST RESPECTING THE EQUALITY OF COMPETITIVE CONDITIONS AS BETWEEN GERMAN AND FRENCH CEREAL MEAL PRODUCERS .

24 SUCH A PROCEDURE COULD BE CONSIDERED AS BEING OF A KIND TO PLACE IN JEOPARDY THE OBJECTIVE OF ENCOURAGING THE COMMUNITY DURUM WHEAT PRODUCTION .

IT WAS CAPABLE - PARTICULARLY IN CONSUMER AREAS SITUATED AT A DISTANCE FROM PRODUCTION CENTRES - OF CREATING THE RISK OF COMMUNITY DURUM WHEAT PRODUCTION BEING REPLACED BY COMMON WHEAT, OF EITHER COMMUNITY OR IMPORTED ORIGIN .

IN FACT, UNDER THE SYSTEM IN FORCE, THE THRESHOLD PRICE FOR COMMON WHEAT ( 107.25 U.A .) WAS ALREADY LOWER THAN THE INTERVENTION PRICE FOR HOME-GROWN DURUM WHEAT ( 112.44 U.A .).

IT FOLLOWS THAT A FURTHER INCREASE IN THE INTERVENTION PRICE, WOULD RISK CREATING AN INDUCEMENT TO SUBSTITUTE COMMON WHEAT FOR COMMUNITY DURUM WHEAT .

25 IT HAS BEEN SUGGESTED THAT INSTEAD OF AN INCREASE OF THE INTERVENTION PRICE FOR THE WHOLE COMMUNITY, THE ALLEGED DRAWBACKS COULD HAVE BEEN REMEDIED BY AN INCREASE OF THE INTERVENTION PRICE, LIMITED TO THE ROUEN MARKETING CENTRE .

26 IN FACT THE INTERVENTION PRICE IN 1970/72 FOR THIS MARKETING CENTRE WAS APPRECIABLY HIGHER ( 117.50 U.A .) THAN IT HAD BEEN IN 1971/72 ( 112.44 U.A .), SO MUCH SO THAT THE GAP BETWEEN THE THRESHOLD PRICE ( 123.13 U.A . IN 1970/71 AND 125.25 U.A . IN 1971/72 ) AND THE INTERVENTION PRICE HAS INCREASED FROM 5.63 U.A . IN ONE YEAR TO 12.81 U.A . IN THE NEXT .

IN THE APPLICANT' S VIEW IT FOLLOWS THAT THE PROTECTION GRANTED TO COMMUNITY PRODUCERS DURING THE 1971/72 YEAR EXCEEDED WHAT WAS NECESSARY .

27 THE REDUCTION IN THE INTERVENTION PRICE FOR THE SECONDARY MARKETING CENTRES ARISES FROM THE FACT THAT THE MULTIPLE INTERVENTION PRICE SYSTEM WAS, BY ARTICLE 4 OF REGULATION NO 1528/71 OF THE COUNCIL OF 12 JULY 1971 ( OJ L 162, 20 . 7 . 1971, P . 1 ) REPLACED BY A SYSTEM OF SINGLE DERIVED INTERVENTION PRICES .

ACCORDING TO THE SIXTH RECITAL TO THIS REGULATION, THE COUNCIL INTENDED FOR THE MARKETING YEAR 1971/72 TO CONTINUE MAKING USE OF THE POSSIBILITY AFFORDED BY ARTICLE 32 OF REGULATION NO 120/67 OF INTRODUCING A SINGLE DERIVED INTERVENTION PRICE .

SINCE THE ADOPTION OF A SINGLE DERIVED INTERVENTION PRICE IS PERMISSIBLE BY REASON OF THE DEFICIT IN DURUM WHEAT PRODUCTION IT FOLLOWS LOGICALLY FROM THE SYSTEM TO TREAT ( AS PROVIDED BY ARTICLE 32 OF REGULATION NO 120/67 ) THE LOWEST DERIVED INTERVENTION PRICE - THAT IS TO SAY, THAT FROM THE AREA SHOWING THE GREATEST SURPLUS - AS THE SINGLE DERIVED INTERVENTION PRICE .

28 THUS, IF THE COUNCIL OMITTED TO CORRECT THE DISADVANTAGES TO WHICH GERMAN MEAL PRODUCERS WERE INDIRECTLY SUBJECT, BY REASON OF THE FACT THAT THEIR FRENCH COMPETITORS ENJOYED AN ADVANTAGE FROM THIS SYSTEM, SUCH AN OMISSION IS NEVERTHELESS NOT CAPABLE OF RENDERING THE PROVISIONS IN QUESTION ILLEGAL .

IN ENACTING THEM, THE COUNCIL WAS AT THE PERIOD IN QUESTION AND IN THE LIGHT OF THE RELEVANT CIRCUMSTANCES NOT OBLIGED TO ASCERTAIN WHETHER CIRCUMSTANCES OF SO SPECIAL A KIND COULD MILITATE AGAINST THE APPLICATION OF PROVISIONS THAT NORMALLY WOULD HAVE BEEN SATISFACTORY .

29 BY WAY OF REPLY AND AS A SUBSIDIARY POINT THE APPLICANTS CITE THE EXISTENCE OF A PRINCIPLE THAT CALLS FOR COMPENSATION BY REASON OF AN ILLEGAL INTERVENTION ON THE PART OF A PUBLIC AUTHORITY, COMPARABLE TO AN EXPROPRIATION .

30 WITHOUT IT BEING NECESSARY TO DECIDE THE QUESTION WHETHER ARTICLE 215 COVERS SUCH A LIABILITY, IT SUFFICES TO STATE THAT SINCE THE CRITICISED INTERVENTIONS INVOLVE NO ILLEGALITY, THE SUBMISSION RELATING THERETO MUST BE REJECTED .

Decision on costs

31 UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

THE APPLICANTS HAVE FAILED IN THEIR ACTION .

ACCORDINGLY THEY MUST BE ORDERED TO PAY THE COSTS .

Operative part

THE COURT

HEREBY :

1 . DISMISSES THE ACTIONS;

2 . ORDERS THE APPLICANTS TO BEAR THE COSTS .