APPROPRIATE THEREFORE TO ASK THE APPLICANT TO PRODUCE EVIDENCE THAT THE QUANTITIES OF MAIZE IMPORTED IN OR NEAR THE MONTH OF JANUARY 1964, TO WHICH IT REFERS, WERE PURCHASED BY CONTRACTS MADE ON 1 OCTOBER . BECAUSE CERTAIN CONTRACTS WERE NOT CONCLUDED UNTIL AFTER 2.15 P.M . ON 1 OCTOBER 1963, THE DEFENDANT ASSERTS THAT IN THOSE CASES ITS LIABILITY IS REDUCED BY THE FACT THAT THE APPLICANT ITSELF CONTRIBUTED TO THE CAUSE OF THE ALLEGED DAMAGE THROUGH LACK OF FORESIGHT . IN FACT, AS FROM THE TIME STATED, THE GERMAN AUTHORITIES INFORMED THOSE CONCERNED BY POSTING UP A NOTICE OF THE WITHDRAWAL OF THE ZERO LEVY, SO THAT A DILIGENT IMPORTER, IT IS ALLEGED, COULD HAVE BEEN AWARE OF THE HAZARDOUS NATURE OF IMPORT TRANSACTIONS FOR THE MONTH OF JANUARY . FURTHERMORE SEVERAL IMPORTERS INQUIRED REPEATEDLY FROM THE COMPETENT GERMAN AUTHORITIES WHETHER THE ZERO LEVY WAS STILL IN FORCE, WHICH PROVES THAT THE IMPORTERS WERE AWARE OF THE ABNORMAL NATURE OF THE SITUATION .
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IT IS NOT POSSIBLE, HOWEVER, TO ARGUE FROM THE SAID REQUESTS FOR INFORMATION THAT A DILIGENT IMPORTER WAS OBLIGED TO KEEP HIMSELF INFORMED OF THE SITUATION AT ALL TIMES . IT APPEARS BOTH FROM THE WORDING OF ARTICLE 17 OF REGULATION NO 19 AND FROM THE ACCOUNT OF THE FUNCTIONING OF THE COMMON ORGANIZATION OF THE MARKETS PROVIDED BY THE DEFENDANT THAT THE LEVY ANNOUNCED AT THE BEGINNING OF THE DAY NORMALLY REMAINS APPLICABLE DURING THE WHOLE DAY . IN THESE CIRCUMSTANCES, THE REQUIREMENTS OF THE PRODUCTION OF PROOF EITHER THAT THE IMPORTER PURCHASED THE MAIZE ON 1 OCTOBER 1963 BEFORE 2.15 P.M . OR THAT HE COULD NOT HAVE BEEN AWARE OF THE WITHDRAWAL OF THE ZERO LEVY, WHICH MOREOVER WAS ILLEGAL, IS EQUIVALENT TO A REVERSAL OF THE BURDEN OF PROOF . AS SUCH A REVERSAL IS NOT JUSTIFIED, THE DEFENDANT MUST BE ALLOWED TO PROVE, WHERE APPROPRIATE, THAT THE PURCHASES OF MAIZE WERE MADE WITH KNOWLEDGE OF THE SAID WITHDRAWAL, THE RIGHT TO PRODUCE EVIDENCE TO THE CONTRARY BEING RESERVED TO THE APPLICANT .
AS TO THE SECOND CATEGORY OF INJURY MENTIONED ABOVE, THE APPLICANT ALLEGES THAT IT HAS SUFFERED INJURY BECAUSE OF BOTH THE EXPENSE WHICH IT HAS HAD TO BEAR IN REPUDIATING THE SAID CONTRACTS OR THE LOSSES SUFFERED ON RESALE AS WELL AS THE LOSS OF PROFIT WHICH IT HAS SUFFERED IN RESPECT OF THE QUANTITIES OF MAIZE PURCHASED BUT NOT IMPORTED IN CONSEQUENCE OF THE PROTECTIVE MEASURE .
THE PENALTIES PAID AND THE LOSSES SUFFERED ON RESALE ARE THE DIRECT CONSEQUENCE, ON THE ONE HAND, OF THE CONFIDENCE OF THE APPLICANT IN THE PROPER APPLICATION OF REGULATION NO 19 AND, ON THE OTHER HAND, OF THE UNFORESEEN FACTOR CONSTITUTED BY THE PROTECTIVE MEASURE WHICH WAS RETAINED BY THE DECISION OF THE COMMISSION OF 3 OCTOBER 1963 . IN PURCHASING THE QUANTITIES OF MAIZE IN QUESTION ON 1 OCTOBER 1963, THE APPLICANT LEGITIMATELY RELIED UPON THE SYSTEM OF LEVIES IN FORCE IN ORDER TO ENTER INTO CONTRACTUAL OBLIGATIONS