8.

When the public interest so requires, there can be no doubt that the interests of individuals, even if they form a group of some size, must take second place. But when, apart from mere book-keeping considerations, there is no need or point in sacrificing individual interests and frustrating legitimate expectations, may it be argued that, in the Community legal order, there exists a general principle which requires the institutions of the Community to adopt appropriate measures to safeguard those interests? I believe it would be dangerous to try and give a general answer to such a wide-ranging question. On the contrary, it can be answered more conveniently and satisfactorily as and when it arises in respect of well-defined sectors in the context of the conditions which led to adoption of the provision which changes the previous arrangements. In order to stick as closely as possible to the circumstances of this case, regard must be paid to the reason which led to adoption of the Regulation of the Commission with which we are concerned (No 189/72) as it appears in the light of the explanations supplied by the defendant in the course of the proceedings. The Regulation declared it to be no longer essential to apply compensatory amounts in the sector concerned to prevent disturbances of trade because, as the Commission pointed out during the proceedings, 84 % of Community production had by then been or was in the process of being sold. The purpose of compensatory amounts is not to cover operators against the currency risks inherent in fluctuations in the rates of exchange but, as has been seen, solely to prevent the system of agricultural prices and, in particular, the working of intervention mechanisms from being compromised, which could easily occur as a result of speculative operations designed to profit from differences in exchange rates between States. This being the end in view, the Commission did not, in this respect, regard the small part of the internal harvest still remaining to be put on sale as constituting a real danger. However, the abovementioned percentage of Community production which the Commission had declared to be no longer available for sale included a share of more than 30 % which, although capable of being regarded as already committed, because it had been the subject of advance fixing either in respect of export refunds or of supplementary aids, had not yet in fact been delivered to the purchaser. It is not known what proportion of this share was destined for export. However that may be, in respect of the remaining part of Community output, regard was paid to the fact that the compensatory amounts promised by the Community had produced the required effect, but nothing was done to meet the expectations entertained by concerns which had undertaken sales commitments in respect of which they had obtained advance-fixing certificates for refunds. To rely on the fact that, whether it was large or small, that proportion of Community output had for all intents and purposes now gone outside the home market, in order to deprive it of the benefit of the compensatory amounts would appear to have little in common with the principles of fair dealing and good faith which should govern the attitude of a public authoritiy towards those subject to its control. In the abovementioned statement of reasons given for Regulation No 837/72 which, whilst amending the system of monetary compensatory amounts, declares that the compensatory amount valid on the day on which the export refund was fixed in advance shall be applied, the Commission expressly acknowledged the elementary economic fact that the calculations of operators for whom the export refund had been fixed in advance are based on the granting not only of such ‘refund’ but also of the compensatory amounts. When it is borne in mind that, as the Commission has explained, one of the objectives of compensatory amounts on colza exports was to maintain traditional patterns of trade, it may seem hardly consistent to take notice that this objective has been achieved thanks to the fact that operators have undertaken commitments based on advance fixing for exports and, at the same time, to prohibit payment of those amounts to persons who had relied upon receiving them when undertaking those sales commitments which the Commission had taken into account when deciding it was time to abolish compensatory amounts. In other words, the Commission had those transactions in mind; it is just because they had been concluded that the Commission was able to abolish compensatory amounts. But if such transactions had played a decisive role in determining that a stage had been reached in the sale of Community products which justified the abolition of compensatory amounts, it would be logical to draw the conclusion therefrom that such abolition should apply solely to those products which had not yet been placed on the market, and not to those whose marketing was taken into account when it was considered to be no longer necessary to grant compensatory amounts on exports. There is, therefore, a discernible inconsistency between the underlaying reason for the provision and the fact that no account was taken also in another respect of that part of Community output which, being for all intents and purposes committed for export, was an important element in building up the economic situation which led to the decision to abolish compensatory amounts. I have, of course, no intention of questioning the need for or the timing of abolition by the Commission of compensatory amounts in respect of the products concerned, not only because almost the whole of the current crop grown in the Community was already virtually disposed of but also because the common market in this sector showed a constant deficit. The question with which we are faced is simply whether liability can arise from a straightforward repeal which (without this being necessary for the achievement of the purpose behind the provision for repeal) also covers that part of Community output which, although virtually disposed of because it had been a subject of contractual commitments and of advance-.fixing of-export refunds and, as such, was taken into account by the Commission in deciding it was time to repeal the compensatory amounts, could not yet have actually been the subject of payment of these amounts as it had not yet been exported. Can the inconsistency which this implies in the provision for repeal between the considerations which led to it and the absence of transitional measures safeguarding the expectation of exporters for whom an export refund had been fixed in advance, be sufficient ground on which to base the Community's non-contractual liability towards the applicant? Under the precedents established by the Court, the question could be answered in the affirmative only if such behaviour has to be regarded as a particularly flagrant infringement of a superior principle of law designed to protect individuals. The exceptional nature of the machinery of compensatory amounts is of particular relevance here because it constitutes in itself an exception to the system of single prices in the Community and it is, accordingly, justified only to the extent which is strictly necessary to avoid those difficulties which have been described. In the circumstances, therefore, the absence of transitional measures to accommodate interests similar to those advanced by the applicant and whose protection is, as we have seen, not a specific object of the compensatory amounts system, does not seem to infringe the general principle of proportionality. Failure to protect a mere expectation based on an exceptional arrangement of this kind could not in itself therefore constitute a wrongful act creating liability. Even if the lack of consistency between such failure to provide protection and the reason which led to the provision objected to resulted in vitiating the legality of the instrument, it would nevertheless, not be possible to establish the non-contractual liability of the Community if there has been no infringement of a superior prinicple of law designed to protect individuals. The distinction between the illegality of an act and its capacity to create non-contractual liability on the part of its author is strictly maintained in the Community legal order in that, as the Court has already indicated, not every illegality can give rise to liablility. If it were otherwise, the recognized right of private parties, on the basis of compensation for demage incurred by them as a result of a Community regulation, to move the Court for relief, which for practical purposes is the same as that which they would obtain from annulment of the act concerned, would amount to a licence for individuals to circumvent the rigid limitations of public policy which Article 173 of the Treaty imposes on actions brought by individuals against legislative acts. Even if, in theory, a logical flaw in a provision of general application, such as has been found in the provision for straightforward repeal of compensatory amounts in the sector concerned, is capable of affecting its validity, this does not constitute an infringement of a superior principle of law which also constitutes a specific safeguard for individual interests.