III —

(1) I shall consider first, not whether Council Regulation No 425/77 is illegal, a ground of complaint which was not pleaded and on which it is not possible to give a ruling in the absence of the institution which adopted the regulation, but whether the Commission by omitting to use Article 7 of Regulation No 425/77 caused the applicant damage of such a kind as to incur non-contractual liability. That article provides: ‘Should transitional measures be necessary to facilitate the implementation of this regulation, in particular if such implementation on the date provided for were to give rise to substantial difficulties in respect of certain products, such measures shall be adopted in accordance with the procedure laid down in Article 27. They shall be applicable until 31 December 1977.’ The reference is to Article 27 of the basic Regulation No 805/68, which concerns the well-known Management Committee procedure. On this first point I should like to refer to what I said in my opinion in the Bainne case about that procedure and in the Debayser case about the ‘discretionary relief regulation’, and express the view that this case does not supply an appropriate framework for examining whether the Commission had a duty to make use of the power conferred on it by Article 7 and that at all events the Commission's non-contractual liability cannot be brought into the issue in that context: the Commission did not act illegally by refusing to apply Article 7 in the way desired by the applicant. The applicant does not go so far as to maintain that Article 7 is illegal to the extent to which it does not confer on the Commission a ‘competence lieé’ (a power which must be used in a certain way as opposed to a power which may be used at its discretion). Even if that were the case, I could not examine such an objection of illegality in the context of this action, and moreover any such illegality would concern the Council and not the Commission. Even the requirements of natural justice, which were considered in the judgment of 1 February 1978 in the Luhrs case, would not be sufficient grounds for admitting the existence of such a duty on the pan of the Commission. In dealings between individuals and Community administrative authorities, such as those in this case, where, far from entailing non-performance of any obligation on the part of individuals, the charging of the levy results only in less favourable treatment for the imports concerned than that prevailing before the introduction of the levy, no general principle of law — and still less of natural justice — having the scope alleged can be deduced from the domestic legal orders of the Member States. (2) The same is true of the circumstances in which the European Parliament was — or rather was not — consulted on the last oral proposal of the Commission which underlies Council Regulation No 425/77. Any irregularity in that connexion cannot result in the applicant's receiving satisfaction as regards compensation. (3) Next, the applicant pleads the well-known general principle of legal certainty and the protection of the legitimate expectation of those concerned. I would point out first of all that, assuming that the applicant could have cherished legitimate hopes as to the maintenance in force of the rules existing when its contract was entered into, that is a mere expectancy: a vested right to such maintenance would suppose at least the existence of a document embodying rights; however no import licence was required in order to carry out the transaction contemplated. The import rules in question did not require the person concerned to obtain prior authorization from or give an undertaking guaranteed by a deposit to the authorities responsible for the organization of the markets in question. If the administrative authorities of the Federal Republic of Germany gave the applicant reason to believe that the previous rules would be retained in their entirety until old contracts had been performed, notwithstanding changes in market conditions, any liability for failure to protect legitimate expectation would lie with that Member State. From the point of view of ‘failure to protect legitimate expectation’, I would observe that at least two of the conditions for this Court to find the institutions of the Community liable on those grounds have not been fulfilled. First, the introduction of the levy at issue was not unforeseeable, as the Commission explains in detail. Products falling within subheading 16.02 B III (b) 1 of the Common Customs Tariff have always been a sensitive area. In the past, the Community had frequently had to adopt protective measures in respect of certain of those products by providing for the issue of import licences upon presentation of contracts of purchase under the system of linking imports of beef and veal products to sales of fresh or preserved beef and veal held by the intervention agencies. I would also cite Regulation No 610/75 of the Commission of 7 March 1975 on protective measures for certain products falling within that subheading, and Regulation No 2033/75 of the Commission of 5 August 1975 which was at issue in the IFG case. The announcements in Commission Regulation No 3117/76 of 21 December 1976 that the measures introduced by that regulation in view of the market situation ‘constitute a step towards the restoration of the normal import system’ and that ‘the end of the system of protective measures’ was contemplated was not such as to assure traders that in the event of a radical change in the situation certain products within that sensitive area could continue to be imported without a system of protection being reintroduced in one form or another. The obtaining of an official ruling as to tariff classification from the German authorities is merely a guide. It was for the applicant to take precautions, as is not unusual in the field of international contracts, by inserting a clause to guarantee it against the occurrence of an event making performance of its contract excessively onerous: the applicant must seek the appropriate remedy if need be by pleading force majeure, in its legal relations with its contracting partner or with the German Federal authorities. On the other hand, the amount of the levy replacing the earlier linking system could only be a matter for conjecture. One of the main problems of trade in beef and veal is the uncertainty between the time of placing the order and the time of delivery as to the amount of the levy which will be charged on imports into the Community. In a period of world shortage, a levy system discourages Community importers; a single, fixed ad valorem charge on all goods submitted contributes to reducing such uncertainty. The levy introduced by Council Regulation No 425/77 and Commission Regulation No 586/77 varies according to the prices charged within the Community; the Council's intention in deciding on that new variation of the levy was to ensure that in future the market would be managed in a way better adapted to changes in Community prices in relation to the guide price, in order to avoid a return to situations as extreme as the application of the shortage system in 1972 and the application of the protective measures system from 1974. Thus by their nature those rules involve an element of uncertainty; but that uncertainty was not confined to the applicant, and the applicant's importations are not taking place in a period of shortage but on the contrary in a period of surpluses. Secondly, it seems to me that a theme of the new rules is an overriding public interest, or what for my part I should prefer to call reasons of general interest, in their implementation, which, it should be noted, took place not immediately but almost four weeks after the alteration announced by the publication of Council Regulation No 425/77 and almost a week after the publication of the rules of application laid down in Commission Regulation No 586/77. The Council regulation rests on the footing that products such as those which the applicant intended to import ‘were created for the sole purpose of avoiding application of the levies’, the introduction of which is justified precisely by the risk of serious disturbances due to imports, and that those products ‘can he substituted for meat falling within heading No 02.01 of the Common Customs Tariff … which may be imported free of levies’. Resulting as they do from the assessment of a complex economic situation, these operations cannot be questioned in the context of this action and prima facie completely justify the introduction of a system of levies. It has always been particularly difficult to deal with the instability of the market in beef and veal and to control the cycles of production, which give rise to considerable fluctuations. Such a system is an improvement on using protective measures. As I have already said, the use of a single basic levy and rules for its application necessarily gives a precarious and uncertain character to the management of the market with cases being dealt with as they arise, which necessarily leads to discontinuity. The fixing of the levy is influenced by short-term economic considerations and by changes in Community prices in relation to the guide price, and the management of the market has to take account of the ‘political’ aspect of the improvement in the income of Community producers of beef and veal.