2.

I must however examine whether the simple approach adopted above corresponds to a more thorough appraisal of the legal position in this case. The general framework of the system is clear. The compensatory amount was payable, under the Act of Accession, only up to a certain fixed sum on the occurrence of an event which actually happened, namely the fall of the amount of the levy below that prescribed for the said compensatory amount. The legal obligation of the Council was therefore only that flowing from that event. In addition to the Act of Accession, there is also however the notice given by the Council in the Resolution of 20 July 1972 of the provisions of the future implementing regulation. What is the nature of the above statement made by the Council? It gives advance notice of the law, its principal aim being to clarify a priori an unknown fact, namely the size of the compensatory amount. The legal basis for the measure of which advance notice was given was already in the Act of Accession; precise details were added in the Resolution. Since compensation for the differences between prices in the new Member States and the common prices was a legal obligation, the Council's duty could be no other than to declare and give confirmation of the obligation in an act which, naturally, given its source, could not avoid being subject to the conditio juris expressed in the well-known provisions of paragraph (6) of Article 55. Given the nature of the act in question, the applicant's claim had to be confined within the limits of the above rule. The applicant however put forward another claim, the basis of which, as we know, is quite distinct: it is that the Council committed an unlawful act in that the statement in question contains information which is insufficiently clear and precise. The unlawfulness does not therefore consist in failure to keep the promise made, a promise which, in the way the applicant claims that it was understood, could not legally have been made or kept, but in the fact that it created a false feeling of confidence in those concerned. Conduct contrary to that prescribed by law, the first component of an unlawful act, is said to consist in the breach of the legitimate confidence generated in dealers; culpability in the fact of having made the statement in July 1972 without due care; damage for dealers in the fact of having concluded the contracts for the sale of products in the United Kingdom in the belief that they would receive the full amount of the sum prescribed, a belief which proved vain because the differences between the prices which the sum was intended to compensate for (and this is the sole legal justification of the system of compensatory amounts) had in the meantime greatly diminished. On the one hand, an unlawful assurance, on the other hand, a corresponding misplaced belief. Even in this first aspect, there exists a link to be assessed in the context of the general criteria of non-contractual liability. We therefore find ourselves dealing once more with a subject, this time as a preliminary issue and in a more specific form, which I discussed in my first opinion. It is unlawful for a person to give information if he does not respect the confidence which the dealer who conducts his business with normal prudence may place in that information. The said information — which, let us suppose, had to be given in full — constitutes an unlawful act if it was such as to create objectively a serious error with regard to the true situation. If there had existed an obligation to inform, third parties could, without doubt, have relied upon the information received even if it had been incomplete. But if no such obligation existed and it was merely a question of recognizing the desirability of giving information, then the position of the party receiving the information in question must also be considered; in particular, it is the latter's duty to consider the information received in the light of the system the implementation of which was announced in advance. The basic rule of every legal system according to which nemo censetur ignorare leges must, however, give way in the case of incorrect information which, as an unlawful act, constitutes the basis of a separate claim. But there still remains the problem of resolving whether and, if so, how the said conduct of the Council was likely to mislead. If the statement was not such as to engender a false feeling of confidence in the dealers for whom it was intended, in other words such as to induce in them a feeling of certainty, there can be no liability, since the essential unlawfulness is lacking. Similarly, there is no liability if it is conceivable that those receiving the information should have been aware of, or should at least have harboured doubts about the true situation. Liability — it is generally said — exists when the person to whom the statement is addressed relies, through no fault of his own, upon that which he has come to learn of. Such liability ceases when the person to whom the information was addressed in some way had a suspicion that that was not the true situation. The above discussion shows how the very existence of the fact creating liability (false or incomplete information) is linked to the situation of the party who has been misled. Given that there is no liability when the party misled ought to have been aware of the true situation or was in some way aware of it, there may also be a valid presumption of knowledge or of ability to possess knowledge (the obligation to acquire knowledge of recent legislation) in the case of an experienced dealer; the result being that there is justification for the presumption that the party suffering damage did so only through his own negligent failure to rectify or to complete the information. We must therefore assume, in accordance with modern conceptions relating to non-contractual liability in the laws of Member States, that the victim's conduct in relation to false information has not been negligent, because it is only in that case, in other words in the absence of fault on the part of the person receiving the information, that the unlawful act, which consists precisely in the creation of a mistaken feeling of confidence, can be judged.