7.

Consideration must now be given to the argument based on failure to respect the legitimate expectation of the applicant arising from the fact that, in the contested decision, the Commission departed from its own previous practice. There is no doubt that the Commission, by its Decision of 14 May 1971 that the EAGGF should be debited with transportation costs of the same kind as those involved in the present case, might have imbued the administrative authorities concerned with the belief that the same thing would happen in future. But, even if based on the behaviour of the other party, a hope which does not materialize does not suffice to create entitlement to compensation. There is no need to deal with a case in which a prior decision conflicts with the law and where the administrative authorities are obliged, if not to revoke the decision, at least to adopt different decisions in the future so as to conform with the law in force. But it must be borne in mind first that, when exercising a discretion, an administrative authority is always at liberty to adopt a different view from those previously taken on particular issues. The adoption at a particular time of one of the possible alternatives does not deprive the authority of the power to take a different view in future. In saying this, I am not trying to deny the importance of respect for the principle of legitimate expectation the legal effect of which in the Community legal order the Court has had occasion to recognize in its previous decisions. What must be borne in mind here is that the principle assumes its essential importance in determining the existence, if any, of the blame which is the foundation of the liability of public authorities for compensation for damage suffered by an interested party because of an unforeseeable shift of attitude by the administration concerning the settlement of a given problem. Thus, even if it were perfectly justified in terms of administrative convenience and it kept within the limit of the discretion which the Commission must be recognized as having, a sudden change of attitude by the Commission on responsibility for the transportation costs which are the subject of the present case could, quite apart from annulment or a declaration by way of a preliminary ruling that the measure which embodies it is invalid, create liability on the part of the Community if the national administrative authorities had incurred expenditure which it would presumably have avoided if the Commission's own actions had not induced it to believe that such expenditure would be borne by the Community. On the other hand it is doubtful whether the disappointment of mere expectations is capable, in itself, of resulting in an annulment or in a declaration that a measure is invalid. Especially when a measure of general application is involved, the disappointment of legitimate expectations is not inherent in the measure itself but arises from failure to adopt appropriate transitional measures. This would therefore involve a defect which was extrinsic to the legislative substance of the measure and as such ought not to be capable of constituting justification for its annulment or declaration as invalid. I am, moreover, conscious of the serious consequences, as regards legal certainty, which any other conclusion might have on the legislative measures of the Community, bearing in mind that their validity may at any time be reviewed under Article 177. I am also conscious of the disproportion between the interests of a person seeking protection against a regulation the need for which, and the extent to which, it meets the general requirements of the Community, are in principle accepted and the damage which the means employed for that purpose might do to the working of the Common Market, whereas those who have been disappointed in their legitimate expectations may find in Article 215 of the Treaty a more suitable remedy for the protection of their interests. Without doubt, these considerations have very much less weight in the case of individual decisions. Nevertheless the principle, laid down by the case-law of this Court, limiting compensation exclusively to the losses suffered as the result of failure to act in accordance with expectations, might be difficult to apply in an action for annulment, with the consequence that the protection of expectations would, even in financial terms, produce different results according to the type of legal redress chosen by the party concerned. A further consideration is that if departure from mere expectations were recognized as a possible ground for annulment of an individual measure, it would, in view of the fact that the Treaty provides exactly the same method for the annulment of individual and general measures, be logical to recognize that the same possibilities are available as regards the validity of regulations. In the present case the applicant has invoked disregard of his legitimate expectations to support an action for annulment and not an application for damages based on Article 215 of the EEC Treaty. Whether, even in this connexion, it is decided to entertain the action for annulment as such or whether the decision is, instead, to treat it as an application for damages, I do not believe that, for the applicant, the final outcome in the present case should be different. The latter has never claimed that the system of stock-piling cereals practised in Germany would have been different if the aforementioned Commission Decision of 14 May 1971 had excluded reimbursement of transportation costs caused by determination of a lease. There is indeed every reason for believing the opposite. It has in fact been stated by the German Government itself that the system of private storage normally employed by the national intervention agencies in the Federal Republic is a particularly advantageous one; that the amount to be paid for exclusion of the right to give notice would be much higher; and that, moreover, removals from one warehouse to another owing to the operation of the determination clause represent an insignificant fraction of the goods stored under such conditions: on average 12500 tonnes out of about 2500000 per year. The conclusion may be drawn from this that, even if the Commission had, from the beginning, taken a different attitude with regard to the interpretation and application of Article 4 (1)(g) of Regulation No 787/69, on the lines of the decision contested in this case, this would not have caused the national intervention authority to make any substantial change in its contractual practice on the storage of cereals; there can be therefore no question of a causal relationship existing between the costs incurred by the applicant national authority on account of the warehousing changes concerned and the previous practice of the Commission. In terms of the action for damages, this leads to the conclusion that there is wanting at least one of the essential conditions for recognition of the liability of the Community in respect of any infringement by the Commission of the principle of the legitimate expectation of those subject to its administration. In terms of the action for annulment, it must be recognized that the departure from the applicant's expectations is not in this case sufficiently serious to justify annulment of the contested measure. For these reasons, the submission concerning respect for legitimate expectations must also be dismissed.