Opinion of Mr Advocate General Van Gerven delivered on 15 September 1993. - Koinopraxia Enóséon Georgikon Synetairismon Diacheiríséos Enchorion Proïonton Syn. PE (KYDEP) v Council of the European Union and Commission of the European Communities. - Common organization of the market in cereals - Non-contractual liability. - Case C-146/91.



European Court reports 1994 Page I-04199



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1. The present case concerns an action brought under the second paragraph of Article 215 of the EEC Treaty by the Koinopraxia Enoseon Yorgikon Sinetairismon Diakirisios Enchorion Proïondon (hereinafter referred to as "KYDEP") against the Council and Commission of the European Communities. KYDEP is seeking compensation for the damage which it allegedly suffered owing to the wrongful acts and omissions of the institutions in their regulatory activity following the nuclear accident which occurred at Chernobyl on 26 April 1986. As a result of that accident a radioactive cloud was driven over large parts of Europe, contaminating a large quantity of agricultural products.

2. KYDEP is a cooperative according to Greek law, established in Athens, comprising 93 unions of agricultural cooperatives. It purchases from Greek producers, inter alia, cereals and vegetables which it stocks and sells. From the 1986 harvest KYDEP bought 634 162 152 tonnes of durum wheat and 335 202 676 tonnes of common wheat with a view to either selling them in non-member countries or offering them for intervention.

KYDEP alleges that, by their acts or rather omissions, as described in greater detail below, the Council and the Commission acted unlawfully and that KYDEP was not able or not able fully to sell or offer for intervention the quantities of wheat which it had bought in or at least not under the terms which it had anticipated. For the loss suffered KYDEP seeks compensation from the Community.

The legislative action by the Council and the Commission which is contested by the applicant

3. Before describing in order the action taken by the Council and the Commission, which is challenged by the applicant, I would point out that the legislative action taken by the institutions in response to the nuclear accident at Chernobyl (demonstrably) concerned first and foremost imports of agricultural products from certain central and eastern European countries, in other words from non-member States. However, the applicant' s allegations relate to products which it bought in Greece and offered for intervention or sold in or exported from Greece. The key feature (albeit never clearly expressed) of KYDEP' s allegations therefore seems to be that the Community institutions did not at the same time make provision for financial aid in favour of products from the Member States, in particular Greece, or that they did so too late or in an incorrect manner.

With regard to the latter point concerning financial aid in favour of Greek products, KYDEP' s allegations concern the measures which the institutions adopted or (wrongly, according to KYDEP) omitted to adopt, or adopted in insufficient degree concerning the purchase and/or the grant of export refunds by the intervention agencies for wheat originating in Greece.

In the account which I give below I shall distinguish between two categories of legislative action. First, I shall deal with the measures adopted by the institutions relating principally to the importation and sale of the products in question originating in non-member countries, and in particular the maximum tolerances applied in that connection (paragraph 4 et seq.). I will then go on to discuss the measures concerning buying-in and the grant of export refunds for products originating in Greece (paragraphs 10 et seq.).

Measures concerning the maximum permitted tolerances

4. The initial preparatory measures were of a general nature. Thus, in its first reaction to the Chernobyl accident, more specifically in a press communiqué of 29 April 1986, the Commission gave to understand, inter alia, that in accordance with Articles 35 and 36 of the EAEC Treaty it had requested the Member States to notify it of the radioactivity present in the atmosphere and that it intended to place the problem on the agenda of the next meeting of the Scientific and Technical Committee established under Article 31 of the EAEC Treaty. (1)

One week later, on 6 May 1986, the Commission, availing itself of the general competence conferred on it by Article 155 of the EEC Treaty and Article 124 of the EAEC Treaty, addressed a recommendation to the Member States concerning the coordination of the measures which the Member States had already taken or were proposing to take in order to prohibit agricultural products contaminated by radioactivity from being placed into circulation. (2) That recommendation contained maximum tolerances for the radioactivity of milk and dairy products and of vegetables and fruit (but not of cereals) and established the principle that the Member States had to subject exports to the same limits as those applying to their own market and to recognize controls performed by other Member States.

5. The following day, 7 May 1986, the Commission adopted an initial measure concerning imports from central and eastern European countries. More specifically it concerned a decision whereby imports of meat from Bulgaria, Hungary, ex-Yugoslavia, Poland, Romania, ex-Czechoslovakia and the former Soviet Union were suspended. (3)

Subsequently, on a proposal by the Commission, the Council adopted Regulation (EEC) No 1388/86 of 12 May 1986 concerning imports of certain agricultural products from certain non-member countries. (4) This regulation contained a provisional but total prohibition (until 31 May 1986) of imports of 11 groups of agricultural products (principally meat, milk and dairy products, vegetables and fruit) from the central and eastern European countries mentioned in the preceding paragraph. (5) Wheat and other cereals or cereal products, the products at issue in this case, were not affected by that measure.

6. On 30 May 1986 the Council adopted Regulation (EEC) No 1707/86, again concerning imports of agricultural products from non-member countries. (6) Whilst still containing urgent temporary measures, that regulation, unlike the earlier regulation, concerned all agricultural products and processed agricultural products intended for human consumption, including wheat, and instead of a complete ban on imports from the seven countries mentioned above, introduced maximum tolerances within which imports were to be permitted. In particular Article 3 provided that the accumulated maximum radioactivity in terms of caesium-134 and -137 should be 370 Bq/kg for milk and 600 Bq/kg for all other products concerned. (7) In the second recital in that preamble it was stated that "these levels applicable to third countries might need to be re-examined in the light of Community decisions regarding internal permitted contamination levels".

7. Thus Regulation No 1707/86 concerned imports from (clearly specified) third countries. However, at the Council meeting of 30 May 1986 at which they were approved (8) the Member States agreed that, with regard to products mentioned in the regulation originating in other Member States, they would not apply stricter maximum tolerances than those laid down in the regulation for imports from third countries. Furthermore the Member States referred to an earlier declaration of 12 May 1986 in which they had undertaken not to apply to products from other Member States more restrictive maximum tolerances than for national products.

At the same Council meeting the Council requested the Commission to make proposals as speedily as possible on the basis of the appropriate provisions of the EAEC Treaty to supplement the existing rules relating to the protection of the population and to establish a procedure in order in the future to be in a position to tackle emergencies.

8. The period of validity of Regulation No 1707/86, which originally expired on 30 September 1986, was twice extended. On 22 December 1987 the Council adopted two new regulations. The first, Regulation (EEC) No 3955/87, still deals with imports of agricultural products from non-member countries. (9) In essence, and without any relevant substantive change, it reproduces the provisions of Regulation No 1707/86. For a period of two years the same maximum tolerances are applied in respect of the same products from the same countries. (10)

The second regulation, namely Council Regulation (Euratom) No 3954/87 of 22 December 1987 (11) is of unlimited duration. Article 1 thereof lays down "the procedure for determining the maximum permitted levels of radioactive contamination of foodstuffs and of feeding-stuffs which may be placed on the market following a nuclear accident or any other case of radiological emergency which is likely to lead to or has led to significant radioactive contamination of foodstuffs and feeding-stuffs". In other words, this regulation gives effect to the Council' s desire to establish a procedure enabling as far as possible future emergencies to be tackled (see paragraph 7 above).

9. The procedure mentioned in that regulation makes provision for the Commission, in the event of its receiving official information on accidents or on any other case of radiological emergency "substantiating that the maximum permissible levels are likely to be reached or have been reached" (see below), immediately to adopt a regulation rendering applicable those maximum permissible levels (Article 2(1)). After consultation with experts that regulation is to be submitted within one month by the Commission to the Council which within a prescribed period may amend or confirm it (Article 3(1 to 3)). If not the levels set out in the annex are to continue to apply until the Council makes a decision or the Commission withdraws its proposal (Article 3(4)).

The levels laid down in the annex to which the abovementioned wording of Article 2(1) of the regulation refers are 1 000 Bq/kg for dairy products and 1 250 Bq/kg for other foodstuffs in the case of caesium 134 and 137, and other levels for strontium 90, jodium 131, plutonium 239 and americium 241. Thus, in the case of caesium they are considerably higher for foodstuffs other than dairy products (such as wheat) than those provided for in Regulation No 1707/86 for imports from the third countries concerned (see paragraph 6 above).

Measures concerning buying-in and the grant of export refunds by intervention agencies

10. In this connection I would first refer to a report sent on 24 July 1986 by the Commission by telex to the permanent representations of the 12 Member States. It was signed by Mr Legras, Director-General for Agriculture, and concerns the buying-in by the intervention agencies of products contaminated by the Chernobyl accident and the grant of export refunds for those products. That report takes an important place in KYDEP' s arguments (see paragraph 19 below). I will quote it in extenso:

"The attention of the Member States is drawn to the fact that the Community rules relating to buying-in generally lay down that products offered must be of sound and fair merchantable quality or not contain substances likely to damage human health. Furthermore, any agricultural product which is not merchantable owing to its characteristics cannot be the subject of a buying-in contract.

Furthermore, as regards those products for which an export refund is applied for, it is pointed out, in accordance with the provisions of Article 15 of Regulation (EEC) No 2730/79 (OJ 1979 L 317), that the refund is granted for products of sound and fair merchantable quality and which cannot be excluded for the purposes of human consumption because of their characteristics or condition.

In view of the foregoing and in the light of Council Regulation (EEC) No 1707/86 (OJ 1986 L 146), products which do not comply with the maximum tolerances of radioactivity laid down in Article 3 of the said Regulation cannot be considered as fulfilling either the conditions laid down for intervention purchases or those governing entitlement to export refunds. Consequently, the financial costs involved will not be borne by the EAGGF." (12)

11. The Commission did not confine itself to the abovementioned measure. By Regulation (EEC) No 2751/88 of 2 September 1988 (13) it also adopted a special intervention measure in favour of durum wheat originating in Greece, in particular wheat from the 1986 harvest. That measure was based on Article 8 of Council Regulation (EEC) No 2727/75 of 29 October 1975, (14) which provides that specific intervention measures may be decreed where the market situation in certain areas of the Community so requires. The special intervention measure thus adopted in the case of Greek durum wheat provided for the grant of an export refund for 300 000 tonnes of durum wheat exported from Greece which as to 40% had to originate in the Greek harvest of 1986.

Basic principles concerning non-contractual liability

12. At the outset of the examination of the submissions made by the applicant in support of its claim for compensation, it may be useful to recall the basic principles governing non-contractual liability at Community law. In that connection I cite below paragraphs 12 and 13 of the judgment of the Court of 19 May 1992 in Joined Cases C-104/89 and C-37/90:

"The second paragraph of Article 215 of the Treaty provides that, in the case of non-contractual liability, the Community, in accordance with the general principles common to the laws of the Member States, is to make good any damage caused by its institutions in the performance of their duties. The scope of that provision has been specified in the sense that the Community does not incur liability on account of a legislative measure involving choices of economic policy unless a sufficiently serious breach of a superior rule of law for the protection of the individual has occurred (see, in particular, the judgment in Joined Cases 83/76 and 94/76, 4/77, 15/77 and 40/77 HNL v Council and Commission [1978] ECR 1225, paragraphs 4, 5 and 6). More specifically, in a legislative field such as the one in question, which is characterized by the exercise of a wide discretion essential for the implementation of the Common Agricultural Policy, the Community cannot incur liability unless the institution concerned has manifestly and gravely disregarded the limits on the exercise of its powers (see in particular the judgment in HNL v Council and Commission, cited above, paragraph 6).

The Court has also consistently held that, in order for the Community to incur non-contractual liability, the damage alleged must go beyond the bounds of the normal economic risks inherent in the activities in the sector concerned (see the judgments in Case 238/78 Ireks-Arkady v Council and Commission [1979] ECR 2955, paragraph 11, in Joined Cases 241/78, 242/78 and 245/78 to 250/78 DGV v Council and Commission [1979] ECR 3017, paragraph 11, in Joined Cases 261/78 and 262/78 Interquell Staerke v Council and Commission [1979] ECR 3045, paragraph 14, and in Joined Cases 64/76 and 113/76, 167/78 and 239/78, 27/79, 28/79 and 45/79 Dumortier Frères v Council [1979] ECR 3091, paragraph 11)." (15)

13. In the present case the question therefore arises first of all whether in the present case there has been a sufficiently serious breach of a superior rule of law for the protection of the individual. KYDEP sets out five such breaches concerning respectively Article 39(1)(b) and (c) of the EEC Treaty, the prohibition of discrimination, the principle of proportionality, the manifestly incorrect assessment of facts and the principle of the free movement of goods and exports. The Commission and the Council contest all of these alleged breaches and contend that KYDEP' s claim should be rejected without its being necessary to examine the other criteria of liability in particular the existence of damage and the issue of causality.

The alleged breach of Article 39(1)(b) and (c) of the EEC Treaty

Applicant' s allegations against the Council

14. Article 39(1) of the EEC Treaty summarizes the objectives of the common agricultural policy. On the basis of the considerations contained in the preamble to Council Regulation No 2727/75 of 29 October 1975 on the common organization of the markets in the cereals sector, (16) KYDEP states, without being contradicted in this respect either by the Council or the Commission, that in the cereals sector the primary objectives are those mentioned in Article 39(1)(b) and (c), namely the securing of a fair standard of living for the agricultural community and the stabilization of markets. According to KYDEP the Council is said to have infringed those objectives by not adopting at the time of the Chernobyl accident a decision under Community law concerning intervention, exports and intra-Community trade in cereals. That omission is said to be all the more serious in view of the expectation aroused by the Council in the second recital in its preamble to Regulation No 1707/86 announcing a Community decision regarding internal permitted contamination levels. (17) The Council was also obliged under Article 8 of abovementioned Regulation No 2727/75 (see paragraph 11 above) to adopt such measures.

In its reply to the Council' s defence KYDEP went on to state that, if the Council in implementing the aforementioned Article 8 had adopted the special intervention measures, it could thereby have enacted provisions directly dealing with the problems of producers and dealers. If I understand it correctly, KYDEP was thus expecting the Council to grant to it or to the Greek cereals sector financial aid in order to offset the consequences of the accident at Chernobyl.

15. The Council attempts to rebut that allegation with the following arguments. First, it submits that at the time of the accident in Chernobyl the institutions did not have available to them the necessary powers under Community law and that in particular there was no procedure in an emergency following a nuclear accident for establishing the maximum permissible levels of radioactive contamination in foodstuffs. (18) Nevertheless, Article 2(b) of the EAEC Treaty provides that the European Atomic Energy Community is to establish uniform safety standards to protect the health of workers and of the general public and must ensure that they are applied. Effect was given to that provision by various directives adopted in 1959, which were subsequently replaced by a Council directive of 15 July 1980 amending the directives establishing basic standards for the protection of the health of the population and of employees against the dangers of radiation. (19) However, these directives contain no rules concerning the establishment of maximum levels of contamination by radioactivity of foodstuffs as a result of a nuclear accident. Certainly Article 45(4) of the abovementioned directive provides that "in the event of accidents, each Member State shall stipulate (a) intervention levels, measures to be taken by the competent authorities (...)". Moreover, it was by virtue of that provision that the Member States, immediately after the Chernobyl accident, laid down maximum tolerances at national level. Furthermore, the Member States in adopting Regulation No 1707/86 undertook not to apply stricter tolerances to imports from other Member States than are applicable to their own national products (see paragraph 7), and in practice adopted the maximum tolerances laid down for imports from third countries (see paragraph 28).

In the same connection the Council goes on to point out that the legal framework existing at the time of the accident in Chernobyl, which subsequently proved to be inadequate, corresponded to the requirements and the scientific knowledge of that time. As regards the Chernobyl accident the widespread scientific conception prevailed that the effects of a nuclear accident would only be felt within a limited geographical area. The two most significant nuclear accidents until then, in Three Mile Island in the United States and Windscale in the United Kingdom, did in fact only have local effects. Consequently, not only in the Community but also in the competent international organizations, heed was paid only to the maximum levels of radiation to which the human organism may be directly exposed in cases of accidents. More particularly there were no internationally recognized norms relating to admissible levels of radioactivity for foodstuffs. Only the US Food and Drug Administration had elaborated standards since 1982.

16. As regards the possibility provided for in Article 8 of Regulation No 2727/75 of adopting special intervention measures, the Council points out that this possibility was in fact availed of in particular by Commission Regulation No 2751/88 of 2 September 1988 concerning a special intervention measure for durum wheat in Greece (see paragraph 11 above). The Council further points out that neither the Treaty nor Regulation No 2727/75 requires it to adopt measures providing for direct financial compensation of the losses suffered by producers as a result of natural disasters or other unusual occurrences. On the other hand Article 92(2)(b) of the EEC Treaty provides that in such a case aid measures by the Member States are permitted.

Finally, the Council doubts whether Article 39 of the EEC Treaty constitutes a superior rule of law for the protection of individuals a breach of which may found the Community' s liability for legislative action. The Council refers in that connection to an observation to that effect by Advocate General Capotorti: "the interests of the persons for whom the common agricultural policy is intended are certainly protected by it but not in the form of the grant of personal rights". (20)

17. I have no difficulty in agreeing with the Council' s arguments. KYDEP has entirely failed to demonstrate the existence of "a sufficiently serious breach of a superior rule of law for the protection of individuals"; nor has it demonstrated that the Council "gravely disregarded the limits on the exercise of its powers" (see paragraph 12). Irrespective of whether Article 39 does constitute a superior rule of law for the protection of individuals, there cannot, it seems to me, be any question of a wrongful act or omission, let alone any sufficiently serious breach. As the Council correctly states, there is no provision of Community law which obliges the Commission to adopt measures providing for financial compensation for losses suffered by the Greek cereals sector following the nuclear accident in Chernobyl. In particular no such obligation may be inferred from the general provision contained in Article 39 of the EEC Treaty in which a fair standard of living for the agricultural community and the stabilization of the markets are stated to be objectives of the common agricultural policy. Article 8 of the abovementioned Regulation No 2727/75 enables, but does not compel, special intervention measures to be adopted. The Commission did in fact adopt such a special intervention measure, in the form of abovementioned Regulation No 2751/88, in favour of durum wheat from the 1986 harvest originating in Greece.

The Council, it seems to me, is also taking a correct view when it asserts, without being refuted by KYDEP, that as Community law stood at the time of the accident in Chernobyl, it was for the Member States to determine the maximum levels of radioactive contamination in foodstuffs in the event of a nuclear accident. The absence of existing Community provisions or of a procedure enabling them to be established in an emergency can scarcely be held against the institutions. KYDEP does not do so, in view of the fact that the nature of the accident in Chernobyl and its consequences were entirely novel.

Applicant' s allegations against the Commission

18. In connection with the abovementioned allegation against the Council, KYDEP takes the view that the Commission waited too long before submitting a proposal for a permanent set of rules concerning the radioactive contamination of foodstuffs. At its sitting of 30 May 1986 at which Regulation No 1707/86 was adopted, the Council requested the Commission "without delay" to formulate proposals for rules concerning inter alia the radioactive contamination of foodstuffs (see paragraph 7 above). Only 13 months later, on 2 July 1987, the Commission published a proposal which then resulted in Regulation No 3954/87 (see paragraph 8 above).

The Commission does not deny these facts but states that 13 months in this case is a reasonable period which is not to be ascribed to inertia on its part but to the complexity of the subject-matter and the division of opinions amongst the experts. As KYDEP in its reply to the Council stated, the Commission during this 13-month period organized an international symposium with 100 experts from 27 countries and representatives of the competent international institutions.

I am obliged to find that KYDEP does no more than adhere to its allegation that 13 months are too long, and in no way rebuts the counter-arguments put forward by the Commission. In itself a period of 13 months, it seems to me, is not particularly long, at any rate not in a complex technical case and regard being had to the novel circumstances. KYDEP' s argument in that respect must thus be rejected.

19. KYDEP also alleges that the Commission exacerbated the problems of the Greek cereals sector by sending a telex report to the Member States on 24 July 1986 (see paragraph 10 above). The sending of that report is alleged to be an entirely unlawful action and to have caused serious loss. Essentially it led to a prohibition on offering for intervention, or granting export refunds, in respect of agricultural products whose radioactivity exceeded the tolerances set out therein.

In the Commission' s view this action was in no way unlawful. From a legal point of view the telex report must be regarded as a declaratory or interpretative note addressed by the Commission to the Member States in the framework of their mutual administrative cooperation in which it reminded the Member States of the rules on the financing of agricultural expenditure by the EAGGF. Even without that reminder those rules would have been applicable.

20. I have no difficulty in accepting the Commission' s arguments. It is entirely normal for the Commission, in the performance of its task of guardian of Community law and manager of the EAGGF, to remind the Member States of the Community rules which they are obliged to apply. Likewise, it is normal for the Commission, in the framework of the administrative cooperation with the Member States, to give its interpretation on the application of the rules on financing by the EAGGF, which the Commission is obliged to apply in the framework of the annual approval of the EAGGF accounts. (21)

Moreover, the contested telex report (see paragraph 10 for the full text) seems to me to be an acceptable interpretation of the provisions contained or referred to therein. Commission Regulation (EEC) No 1569/77 of 11 July 1977 fixing the procedure and conditions for the taking over of cereals by intervention agencies (22) provides in Article 2(1):

"In order to be accepted for intervention, the cereals must be sound, fair and of marketable quality."

Similarly, Article 15 of Commission Regulation No 2730/79 of 29 November 1979 laying down common detailed rules for the application of the system of export refunds on agricultural products; (23)

"No refund shall be granted on products which are not of sound and fair marketable quality, or on products intended for human consumption whose characteristics or condition exclude or substantially impair their use for that purpose."

In full accordance therewith, the Commission stated in the contested telex report that agricultural products whose radioactivity exceeded the maximum tolerances laid down in Regulation No 1707/86 (see paragraph 6), could not be regarded as being of sound marketable quality and suitable for human consumption within the meaning of the two provisions referred to. In so far as the maximum tolerances in question are acceptable (on this see paragraphs 27 and 28), this interpretation of the provisions, it seems to me, is reasonable.

21. KYDEP challenges this interpretation by reference to the second paragraph of the aforementioned Article 2 of Regulation No 1569/77, which provides that:

"They shall be regarded as sound, fair and of marketable quality if they are of the typical colour of the cereal in question, free from abnormal smell and live pests (including mites) at every stage of their development and if they meet the minimum quality requirements set out in the Annex hereto."

Since the annex makes no mention of radioactivity the a contrario inference to be drawn is, it is said, that cereals contaminated with radioactivity must be regarded as being of sound and marketable quality. That reasoning cannot be taken seriously.

The alleged infringement of the prohibition of discrimination

22. The second subparagraph of Article 40(3) of the EEC Treaty provides that a common organization must "exclude any discrimination between producers or consumers within the Community". According to KYDEP the Community institutions infringed the prohibition of discrimination by not adopting special measures in favour of the Greek cereals sector. Greek territory was much more seriously affected by the consequences of the accident in Chernobyl than the rest of the Community. The omission of special measures for Greece thus constitutes discrimination.

According to KYDEP, discrimination is also apparent from a comparison of the two Council regulations of 22 December 1987 (see paragraph 8). Regulation No 3955/87 of that date confirmed the measures adopted earlier concerning agricultural products imported from non-member countries with maximum permissible radioactivity tolerances of 370 Bq/kg for milk and 600 Bq/kg for all other products concerned (see paragraph 6). Regulation No 3954/87 of the same date, on the other hand, applies higher maximum permissible levels in the case of future accidents, namely 1 000 Bq/kg for dairy products and 1 250 Bq/kg for other foodstuffs. It is said that that difference of treatment is not justified on objective grounds.

Finally, KYDEP states that the discriminatory treatment of the Greek cereals sector following the accident at Chernobyl was exacerbated by the fact that the Commission, though the cereal was not marketable, imposed a co-responsibility levy on 2 367 000 tonnes of the Greek cereal in question.

23. These arguments by KYDEP do not, it seems to me, carry conviction in view of the Court' s case-law: "According to a consistent line of decisions of the Court, discrimination is defined as treating differently situations which are identical, or treating in the same way situations which are different (judgment of 23 February 1983 in Case 8/82 Wagner v BALM [1983] ECR 371)". (24) What KYDEP is here alleging is that, although the Greek cereals sector was in a different situation, it was treated in the same way as the rest of the Community. As regards equal treatment the Council points out that special measures in favour of Greece were adopted, in particular by Regulation No 2751/88 (see paragraph 11). As regards the different situation the Council and the Commission point out that Greece was not the only territory in the Community to be seriously affected by the accident in Chernobyl. From figures submitted to the Court by the Commission it appears that two areas of the Community, namely southern Germany and northern Italy suffered more radioactive fallout than Greece. KYDEP' s reply to that is that those figures relate to contamination of the soil which does not necessarily correspond directly to the degree of contamination of agricultural products. However, KYDEP produces no figures or other information to show that the degree of contamination of agricultural products, in particular wheat, was higher in Greece than in the rest of the Community. (25) I infer therefrom that KYDEP has adduced no evidence that the Greek cereals sector was discriminated against. In so far as the Greek situation might be alleged to be different from that in the other areas of the Community that situation was tackled by the adoption of special measures in favour of Greece.

24. Nor does the argument by KYDEP based on the comparison between the two regulations of 22 December 1987 carry conviction. As the Council and the Commission correctly state those are two regulations with differing contents and objectives. Regulation No 3955/87 specifically concerned the consequences of the accident in Chernobyl. The maximum levels of radioactivity contained therein were reasonable and justified in the light of the factual circumstances and available scientific knowledge at the time (see paragraphs 27 and 28 below). On the other hand, Regulation No 3954/87 contains no actual measures related to a specific event, but lays down the procedure for determining maximum levels of radioactive contamination in the case of future nuclear accidents. It is apparent from Article 2(1) and Article 3(4) of that regulation (see paragraph 9 above) that the figures in the annex to the regulation apply pending or in the absence of a decision determining, in accordance with the circumstances of the actual case, maximum levels of radioactivity. Since those maximum levels are of an ancillary nature and applicable only pending the availability of actual data, I do not find it unusual that they should be on the high side. In any event no discrimination may be inferred from a comparison of those secondary maximum levels with the actual maximum levels contained in Regulation No 3955/87, since the two maximum levels are based on different situations, namely on the one hand the actual situation in Chernobyl and on the other the general hypothetical situation of future accidents.

25. Finally, I do not consider that KYDEP can demonstrate an infringement of the principle of non-discrimination by pointing to the fact that the co-responsibility levy was charged in respect of cereal which could not be considered for intervention. Article 4(5) of Regulation No 2727/75 on the common organization of the markets in the cereals sector, as amended by Council Regulation No 1579/86 of 23 May 1986, (26) provides that the co-responsibility levy applies to cereals undergoing initial processing, intervention buying-in or export in the form of grains. However, according to the Commission, the whole of Greek cereal production for 1986 and 1987 (the years in which the radioactivity problem arose) was either processed or exported. That entailed no risk since the level of radioactivity diminishes on processing, or because the contaminated grain is mixed with other grain so that the ultimate level of radioactivity was sufficiently low. (27)

KYDEP in no way refuted the factual allegations of the Commission nor has it even cast doubt on them.

The alleged infringement of the principle of proportionality

26. According to KYDEP, in adopting the measures contained in Regulation No 1707/86 (see paragraph 6) the Community institutions infringed the principle of proportionality. According to the settled case-law of the Court that principle requires "the measures imposed by the Community institutions to be appropriate to achieve the intended objective and not to exceed the limits of what is necessary to that end". (28)

According to the third recital in the preamble to Regulation No 1707/86 that objective was to ensure that "agricultural products and processed agricultural products intended for human consumption and likely to be contaminated are introduced into the Community only according to common arrangements which safeguard the health of consumers, maintain, without having unduly adverse effects on trade between the Community and third countries, the unified nature of the market and prevent deflections of trade".

If I understand KYDEP' s arguments correctly, it is saying that the measures adopted went further than was necessary in order to achieve those objectives, in particular that the maximum levels of radioactive contamination adopted (370 Bq/kg for milk and 600 Bq/kg for all other products concerned including cereals; see paragraph 6) were stricter than necessary to ensure the health of the consumer.

27. It is not entirely clear to me on what grounds KYDEP considers that it may base this infringement on the principle of proportionality. At other places in its submissions I find the argument that the maximum levels laid down were not justified on a scientific basis. In the fourth recital in the preamble to Regulation No 1707/86 the Council recognized that "the subject of minimum reference levels is still in need of more thorough scientific study", but added that "for reasons of urgency and by means of an emergency procedure, interim maximum permitted limits should be established". As the Commission' s representative said at the hearing, without being contradicted by KYDEP, it is not possible even today to say with confidence which figures are scientifically correct and not open to challenge. That was even more so immediately after the Chernobyl accident which, as I have already stated on several occasions, was entirely novel and unexpected as regards the extent of its consequences. The Commission states, again without being contradicted by KYDEP, that it based its proposals on all available scientific data, having regard also to the reactions of public opinion and the authorities in the different Member States and in non-member countries. Various Member States and non-member States had already adopted measures or were in the process of doing so, whereby the stringency of the permitted levels of radioactivity depended on the environmental awareness of public opinion in the different countries.

28. I consider that the Community institutions, in establishing uniform maximum tolerances had to take account of these differences in order to arrive at an average level acceptable to all Member States. Thanks to Regulation No 1707/86 and the other measures adopted by the Community and the Member States that objective was also achieved, both for imports from non-member countries and for intra-Community trade. As the Commission points out, again without being contradicted by KYDEP, all the Member States accepted for intra-Community trade the maximum tolerances laid down in the regulation for imports from central and eastern European countries (see paragraphs 6 and 7 above), and 20 non-member countries also adopted the same norms. It may be inferred from this unanimity, it seems to me, that the maximum tolerances adopted in Regulation No 1707/86 were not unreasonable particularly in view of the rather sparse factual and scientific evidence available at that time. In view of the fact that no new factors have subsequently emerged to indicate that they were inadequate, it seems to me quite justifiable that the maximum tolerances provisionally adopted in Regulation No 1707/86 should have been subsequently confirmed in Regulation No 3955/87. Save for the argument derived from a comparison with Regulation No 3954/87, which I have already rejected (paragraph 24), KYDEP puts forward no other argument to show that those maximums were stricter than was necessary. Consequently, there is no evidence available of an infringement of the principle of proportionality.

The manifestly incorrect assessment of the facts

29. KYDEP submits that the maximum tolerances, as laid down in Regulation No 1707/86, indicate a manifestly incorrect assessment of the facts. As I have already stated above (paragraph 6), Article 3 of that regulation provided that:

"the accumulated maximum radioactive level in terms of caesium 134 and 137 shall be:

° 370 Bq/kg for milk falling within headings No 04.01 and 04.02 of the Common Customs Tariff and for foodstuffs intended for the special feeding of infants during the first four to six months of life, which meet, in themselves, the nutritional requirements of this category of person and are put up for retail sale in packages which are clearly identified and labelled 'food preparation for infants' ,

° 600 Bq/kg for all other products concerned."

According to KYDEP this provision contains two serious shortcomings: in the first place it makes provision solely for milk and not for cereals and other products, for the maximum level of radioactivity at the retail trade level; secondly, radioactivity is measured for wheat although wheat is not intended directly for human consumption but is always first processed into flour. Yet the level of radioactivity of flour is normally one-half of that of wheat, as measured on the pericarp (the part protecting the grain). All that, it is said, shows that flour is manifestly treated more favourably than wheat.

30. In its defence the Council again points to the fact (see paragraph 15 above) that at the time of the Chernobyl accident there were no internationally recognized norms with regard to permissible levels of radioactivity in foodstuffs. The standards adopted by the Council in Regulation No 1707/86 were based on the information available at that time: opinions of national experts on radioactivity in foodstuffs, recommendations of the International Commission for Radiological Protection and directives of the US Food and Drug Administration. The levels which subsequently in January 1987 were laid down by the Food and Agriculture Organization of the United Nations (FAO) were approximately the same as those contained in Regulation No 1707/86.

In its defence the Commission deals separately with the two problems raised by KYDEP. With regard to the different treatment of milk, on the one hand, and all other products, on the other hand, the Commission states that it was only possible in the case of milk to establish a level applicable to the processed product, because in the case of other products, in particular wheat, there are so many different methods of processing and provisions that it is in practice not possible to establish standards for processed products. In its reply KYDEP simply stated that it did not agree with this factual assessment. Again with regard to the special treatment of milk the Commission points out that the standard for milk was stricter than that applicable to other products including wheat, and that it thus fails to understand what interest KYDEP can have in challenging that difference.

As regards the allegedly favourable treatment of flour in contrast to wheat, the Commission confirms that the level of radioactivity in fact decreases significantly when wheat is processed. As I have already said (paragraph 25) that helps to explain why it was possible finally to bring Greek wheat from the 1986 and 1987 harvests onto the market. But the Commission does not understand in what respect KYDEP considers itself to have suffered a loss.

31. With regard to the generality of KYDEP' s arguments which contain no single scientific or other determining element, and the counter-arguments put forward by the Council and the Commission, KYDEP' s claim on this point, it seems to me, must also be dismissed. For it has in no way been proved that the Council "manifestly and gravely exceeded the limits of its competences". Moreover, I share the Commission' s incomprehension regarding the interest that KYDEP might have in the matters it alleges.

The alleged infringement of the free movement of goods and the freedom to export

32. KYDEP submits that the acts and omissions of the Council and the Commission, in particular the failure to adopt a decision at Community level concerning intervention, exports and intra-Community trade in cereals (see paragraph 14 above) and the sending of the telex of 24 July 1986 by the Commission (paragraph 19) caused the free movement of goods and the freedom of exports to be impeded, in particular as regards wheat having a level of radioactivity of more than 600 Bq/kg.

33. As counsel for KYDEP stated at the hearing, this is not really a separate allegation but a logical implementation and extension of the other allegations. The Council and the Commission also refer to their defence concerning the other allegations, in particular to their defence against the allegation of an infringement of Article 39 of the EEC Treaty: the Community was not competent to adopt more far-reaching measures than it had already adopted (see paragraph 15 above), the telex at issue was entirely lawful (paragraph 18) and the measures adopted as a whole by the Community institutions and the Member States served as far as possible to preserve the unity of the market and trade with non-member countries (paragraphs 27 and 28). Since KYDEP submits no other arguments, I may likewise refer to my earlier observations and conclude therefrom that KYDEP' s submissions must be rejected on this point too.

The alleged loss and the causal link

34. I think it is clear from the foregoing that KYDEP has been unsuccessful in seeking to show that the Council and/or the Commission misdirected themselves in such a way as to incur liability under the second paragraph of Article 215 of the EEC Treaty. Consequently, it is not necessary to examine the alleged loss and the causal link, and KYDEP' s claim must be rejected in its entirety. Because the arguments of KYDEP on loss and causality are not very clear, and remain so even after KYDEP' s response to the Court' s request for supplementary information, the Council and the Commission have not really been able to examine in detail the arguments of KYDEP on these points. Should the Court take a different view and consider that KYDEP has adequately demonstrated the existence of a fault on the part of the Council and/or the Commission, those institutions must in any event be afforded the possibility of presenting argument on these points.

Conclusion

35. On the basis of the foregoing I propose that the Court should reject KYDEP' s claims and order it to pay the costs.

(*) Original language: Dutch.

(1) ° The Commission annexed this press communiqué to its defence.

(2) ° Commission Recommendation 86/156/EEC of 6 May 1986 addressed to the Member States concerning the coordination of national measures taken in respect of agricultural products as a result of radioactive fallout from the Soviet Union (OJ 1986 L 118, p. 28).

(3) ° Commission Decision 86/157/EEC of 7 May 1986 suspending the inclusion of certain countries on the list of third countries from which the Member States authorize imports of bovine animals, swine and fresh meat (OJ 1986 L 120, p. 66).

(4) ° OJ 1986 L 127, p. 1.

(5) ° In implementation of this Council regulation the Commission adopted two further regulations, namely Regulation (EEC) No 1505/86 of 16 May 1986 (OJ 1986 L 131, p. 45) and Regulation (EEC) No 1603/86 of 26 May 1986 (OJ 1986 L 140, p. 24).

(6) ° OJ 1986 L 146, p. 88.

(7) ° In implementation of Council Regulation (EEC) No 1707/86 the Commission adopted Regulation (EEC) No 1762/86 of 5 June 1986 (OJ 1986 L 152, p. 41).

(8) ° Council document 7357/86, p. 2; submitted by the Council as an annex to its defence.

(9) ° OJ 1987 L 371, p. 14.

(10) ° The period of validity of that regulation was subsequently extended by Council Regulation (EEC) No 4003/89 of 21 December 1989 (OJ 1989 L 382, p. 4). The regulation was then replaced by Council Regulation (EEC) No 737/90 of 22 March 1990 (OJ 1990 L 82, p. 1). The latter regulation, whose period of validity extends until 31 March 1995, lays down the same maximum tolerances but provides for a procedure excluding from the scope of the regulation products whose radioactivity has fallen to the level subsisting prior to the accident at Chernobyl.

(11) ° OJ 1987 L 371, p. 11. In its title the regulation is described as laying down maximum permitted levels of radioactive contamination of foodstuffs and of feeding-stuffs following a nuclear accident or any other case of radiological emergency .

(12) ° Telex No VS-S-1/1187/86/D1/GG/G8.

(13) ° OJ 1988 L 245, p. 13.

(14) ° In the version applicable at that time after being repealed by Council Regulation (EEC) No 1579/86 of 23 May 1986 (OJ 1986 L 139, p. 29) and amended by Council Regulation (EEC) No 1097/88 of 25 April 1988 (OJ 1988 L 110, p. 7).

(15) ° Judgment of 19 May 1992 in Joined Cases C-104/89 and C-37/90 Mulder and Others v Council and Commission [1992] ECR I-3061, paragraphs 12 and 13.

(16) ° OJ 1975 L 281, p. 1; subsequently amended on several occasions.

(17) ° See paragraph 6 above.

(18) ° As mentioned above that procedure was established only in Regulation No 3954/87 (see paragraph 8 above).

(19) ° Directive 80/836/Euratom (OJ 1980 L 246, p. 1).

(20) ° Opinion of Advocate General Capotorti of 1 March 1978 in Joined Cases 83/76, 94/76, 4/77, 15/77 and 40/77 HNL v Council and Commission [1978] ECR 1209, at p. 1231.

(21) ° See Article 5(2)(b) of Regulation (EEC) No 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policy (OJ, English Special Edition 1970(I), p. 218).

(22) ° OJ 1977 L 174, p. 15.

(23) ° OJ 1979 L 317, p. 1.

(24) ° Judgment in Case 58/86 Coopérative Agricole d' Approvisionnement des Avirons v Receveur des Douanes [1987] ECR 1525, paragraph 15.

(25) ° The only fact to which KYDEP refers is that only the Greek Government sought compensation for the consequences of Chernobyl in the Council and in the Committee of Permanent Representatives. In support of that allegation KYDEP cites certain Council documents. According to the Council those are documents which under Article 18 of the Rules of Procedure of the Council (OJ 1979 L 268, p. 1), are subject to the secrecy rule and in respect of which no authorization was requested in order that they be submitted to the Court. Consequently, the Court may not take cognizance of them. However that may be, the fact that only one government requested the adoption of measures cannot be taken as proof that a problem is solely of concern to that Member State.

(26) ° OJ 1986 L 139, p. 29.

(27) ° As an annex to its rejoinder the Commission appended a scientific study in which both situations were explained.

(28) ° Judgment in Case 116/82 Commission v Germany [1986] ECR 2519, paragraph 21.