2.

It thus come in my investigation to the complaint of the applicants relating to the rules on aids for durum wheat. They say that in a situation in which world market prices were above the level under the Community rules an additional aid for growers of durum wheat is not justified. It had as consequence that the aids at least in part went to those processing durum wheat, that is, the mills. At times in which the world market price was below the Community level the fact that the aids were based on the intervention price and not the target price meant that the market price was in the region of the intervention price; this is especially true in areas with a high yield per acre, as in France, where growers do not depend on the full amount of the aid. However, it was mainly French mills which were in the neighbourhood of the production areas which enjoyed such favourable price trends; German mills had only very limited access to such cereal. On these grounds it could thus be said that the rules on aids had discriminatory effects. (a) In this connexion let us first deal with the basic criticism of the system of aids applying to growers of durum wheat. If it appears that objections are valid in this respect then we must inquire further whether it can be shown that the competitive position of the applicants was affected. Here I need say nothing on the purpose of the rules on aids. It is the well-known intention that in this way the growing of durum wheat of which there is a shortage in the Community is to be encouraged and a change in the agricultural structure is to be attempted. Having regard to the less abundant crop and higher costs in comparison with common wheat and, since the financing by means of the price at the expense of the consumer is not considered appropriate, recourse was had to public funds for the financing. At the beginning of the 1974/75 marketing year world market prices for durum wheat rose markedly and since of necessity world market prices affected the Community market in which there was a shortage, Community prices for durum wheat increased sharply. A few figures may show this. While the minimum price per tonne of durum wheat, which was to be attained by means of aids, amounted in 1970/71 to 145 u.a., in 1971/72 to 147-90 u.a, in 1972/73 to 153-80 u.a. and in 1973/74 to 155-33 u.a., it was fixed for the 1974/75 marketing year at 196-83 u.a. Market prices in the Community under the influence of the world market were, however, at the time considerably higher as appears from the tables of the Commission and the figures given by the applicants. It may accordingly be said that it was possible for the growers without difficulty to obtain a fair income on the market; the conclusion is compelling that in this economic situation aid from public funds was quite superfluous. The two matters for consideration which the defendants mention in this connexion to justify the system of aid do not undermine this conclusion. They stress that it was not possible to stop the aids because it was undesirable to give the impression that there was a basic change in agricultural policy and that the policy of encouraging the growing of durum wheat which was still in short supply but structurally desirable had been abandoned. Further the defendants refer to the fact that the Italian growers consumed a large quantity of the durum wheat themselves (some 600000 tonnes or one third of the total harvest) and that to this extent there was no improvement in income on the market and the desired objective could be obtained only by means of aids. It may be said with regard to this that a false impression in relation to the policy of encouraging the growing of durum wheat would have been avoided if, although basically retaining the system of aids, the grant of aid had been temporarily suspended at the beginning of the marketing year owing to the state of the market. In so far as the Italian growers' own consumption is concerned it seemed doubtful whether in the situation described it was necessary to take this into account. It would have been also conceivable to arrange the organization of the market so that the Italian growers would have been encouraged to bring the expensive durum wheat onto the market and satisfy their own needs with cheaper kinds of cereals. Moreover, and this is more important since it does not concern the problem of the Italians' own consumption, a suitable solution was obvious in the form of a differentiation of the aid rules as is now mentioned by the Commission in regard to the very different yields per hectare (1973/74 France 294 per 100 kg against 17-6 per 100 kg in Italy). Thus in the 1974/75 marketing year the French areas of cultivation at least could have done without the aid. If the criticism of the system of aids is valid in so far as the first half of the 1974/75 marketing year with its high level of world market prices is concerned, then, let me say at once, position can scarcely be different with regard to the ‘normal situation’ as described by the applicants, that is the times in which, as happened in the second half of the 1974/75 marketing year, the world market price for durum wheat was below the level of the Community prices. I certainly do not endorse the argument of the applicants that it is generally sufficient to assess aid in such a way that based on the minimum price, it is related back to the target price as the price which in a deficit market is assumed to be the one normally to be aimed at. It should be borne in mind that the basic amount of the target for the system of aids is the minimum price and the intervention price is based on this. Further, it may be said that in normal price situations the position of the Italian growers with their high personal consumption may properly be considered and that on this assumption the amount of aid previously granted is necessary to give sufficient encouragement for the cultivation of durum wheat. In this connecion, too, the great differences in the yields per acre, already mentioned in relation to France and Italy, should be remembered and also the all-important possibility of differentiating aids. I accordingly consider it not mistaken even in a normal price situation such as is now in question to assume that the French growers of durum wheat could have done without aid or at least have done with a substantially lesser amount of aid, from which it follows that the unchanged retention of aid in the second half of the 1974/75 marketing year is open to criticism. (b) Then following on there must be a further examination of the question whether a connexion can be shown between the granting of aid to the French farmers and the market prices for French durum wheat to which the applicants — I shall return to this — supposedly did not have the same access as the French mills. To deal with this certainly somewhat delicate question as accurate a picture as possible of the French market situation must be obtained and placed in relation to the trend of the world market during the period here in question. The numerous particulars which the parties provided during the course of the proceedings have certainly not made it easier to carry out this task. In my opinion we can take the French market prices which the Commission has provided from the particulars of prices given by the French intervention agency ONIC. The evidence of the representative of the Grands Moulins de Strasbourg, one of the large French competitors of the applicants, comes clearly within these terms. If these prices are compared with the cif prices given by the Commission, that is the world market prices for durum wheat, the following picture appears: In August and September 1974 some French market prices were considerably below these world market prices: of the order between FF 25 and 200 per tonne or in September between FF 50 and 140 per tonne. If, however, the particulars of prices given by the applicants with regard to their purchases on the world market are taken as a basis the differences are in some cases considerably reduced. A clear reduction of the difference may be observed also in respect of the world market prices given by the Commission for the following months of 1974. In so far as the French prices were at all below the level of the world market the order is between FF 40 and at most FF 180 per tonne. In some cases the French market prices were already above the cif prices in these months. The situation changed completely at the beginning of 1975, that is at a time in which the world market prices sank below the level of the threshold prices. Thus the French market prices in January and February 1975 were clearly above the threshold price; this was also true in some respects in March 1975. In the following months of 1975 there was again a fall in the French prices. During this period they were below the threshold price and nearer to the intervention price than the threshold price. This is, however, obviously, if I may say so at once, due to the fact that at that time large quantities of durum wheat which had been held back from the 1974/75 harvest — the witness Pegler spoke of 100000 to 150000 tonnes — were thrown onto the market and did not meet with appropriate demand. In view of this fact I very much doubt whether it can be taken as proved that the aids poured out to the growers of durum wheat were responsible for the fact that the French prices did not more closely approach world market prices for some months of the marketing year. It may thus be observed that the price trend in so far as the relationship to the world market prices is concerned was not at all uniform. I cannot see how this could be explained on the basis of the crucial influence of the rules on aid. Doubts increase if the method of paying the aids is borne in mind. According to what we have heard from the Commission care was taken that the aids benefited the growers; they were paid out shortly after delivery to the places of collection and were obviously separately calculated from the sale prices. Further, it is easily conceivable that the lower French price level is due to the traditional relationships between the French mills and the French durum wheat growers, including the market agencies acting on their behalf. This view has already been expressed in the judgment in Joined Cases 63 to 69/72 [1973] ECR 1229 at p. 1250 and there is doubtless even more to be said for it since in the first half of the 1974/75 marketing year there were quite unusual price situations which must not have been altogether ideal for relationships with old customers. The prohibition on the export of durum wheat which was introduced by the decision of 4 August 1973 and retained until the beginning of April 1975 may have had some effect. Not least, the trend in the monetary situation may have played some part. In these circumstances I cannot give an assessment differing from the judgment in Joined Cases 63 to 69/72 by accepting the argument of the applicants on the causal connexion between the aids for durum wheat and the French market prices. Let me, however, make the two following observations: if a causal connexion were assumed it would certainly be necessary to ask whether there was a sufficient causal connexion between the act of the Community and the damage to the German mills and whether such a connexion is sufficient to give rise to liability for wrongful act or omission. Doubts arise here to, and certainly not least having regard to legal systems according to which it is necessary that there should be direct damage such as in English and French law. In addition to give rise to liability it would be important whether the resulting prices which in a deficit market could certainly be called unusual were at all foreseeable by the Community institutions. This can likewise be doubted on good grounds and thus at least it can be taken that there is no reproach to be made and no culpability. For all these reasons, and quite apart from whether possible criticism of the rules on aids in fact justifies speaking of a flagrant infringement of a rule of law within the meaning of previous case-law I am inclined to regard the grounds of the claim in so far as the rules on aids are concerned as insufficient. I will, however, return to this point in a later connexion as an alternative because I cannot rule out the possibility of a different view being taken.