1 BY APPLICATIONS BROUGHT IN JULY 1974 THE APPLICANTS SOUGHT A DECLARATION THAT THE COMMUNITY WAS BOUND TO MAKE GOOD THE DAMAGE WHICH THEY SUFFERED DURING THE 1974/75 CEREAL MARKETING YEAR BY REASON OF THE RULES ON PRICES AND AIDS RELATING TO DURUM WHEAT CONTAINED IN REGULATIONS NOS 1126/74 , 1128/74 , 1427/74 AND 1524/74 OF THE COUNCIL OF 29 APRIL , 4 AND 17 JUNE 1974 ( OJ , L 128 , PP . 14 AND 17 , L 151 , P . 1 AND L 164 , P . 6 ).
2 IN STATEMENTS LODGED ON 1 OCTOBER 1974 THE DEFENDANTS , THE COUNCIL AND THE COMMISSION , RAISED AN OBJECTION IN ACCORDANCE WITH ARTICLE 91 OF THE RULES OF PROCEDURE TO THE ADMISSIBIILTY OF THE SAID APPLICATIONS . THEY CLAIM IN PARTICULAR THAT THE APPLICATIONS BROUGHT BEFORE THE BEGINNING OF THE 1974/75 CEREAL MARKETING YEAR CONSTITUTE AN ACTION FOR A DECLARATION OR AN APPLICATION FOR A DECLARATORY JUDGMENT ( FESTSTELLUNGSKLAGE ) INTENDED TO ESTABLISH THE COMMUNITY ' S LIABILITY FOR DAMAGE WHICH THEY MAY SUFFER . COMMUNITY LAW , IT IS ALLEGED , RECOGNIZES ONLY AN ACTION TO ESTABLISH LIABILITY TO MAKE GOOD DAMAGE WHICH HAS ACTUALLY OCCURRED SO THAT ACTIONS FOR DAMAGES ARE PREMATURE IF THEIR ONLY PURPOSE IS A DECLARATION THAT COMMUNITY RULES ARE UNLAWFUL .
3 IN THEIR OBSERVATIONS ON THE OBJECTION OF INADMISSIBILITY THE APPLICANTS DEVELOPED THEIR ORIGINAL CLAIMS AND IN ADDITION TO THE DECLARATION SOUGHT ASKED THAT THE COMMUNITY BE ORDERED TO PAY SPECIFIC SUMS REPRESENTING THE DAMAGE SUFFERED BY EACH OF THEM FROM THE BEGINNING OF THE 1974/75 MARKETING YEAR , A POINT WHICH MEANTIME HAD BEEN REACHED .
4 THE COUNCIL AND THE COMMISSION OBJECTED THAT THIS AMENDMENT OF THE CLAIMS CONSTITUTED AN AMENDMENT OF THE APPLICATION WHICH IS PROHIBITED BY ARTICLE 42 OF THE RULES OF PROCEDURE . FURTHER IN SO FAR AS THE CLAIMS ARE FOR SPECIFIC AMOUNTS AS DAMAGES INSUFFICIENT GROUNDS ARE GIVEN . ADMISSIBILITY
5 SINCE BY ORDER DATED 20 NOVEMBER 1974 THE COURT DECIDED TO RESERVE ITS DECISION ON THE OBJECTION TO ADMISSIBILITY FOR THE FINAL JUDGMENT , IT IS NECESSARY TO CONSIDER FIRST THE ADMISSIBILITY OF THE APPLICATION .
6 ARTICLE 215 OF THE TREATY DOES NOT PREVENT THE COURT FROM BEING ASKED TO DECLARE THE COMMUNITY LIABLE FOR IMMINENT DAMAGE FORESEEEABLE WITH SUFFICIENT CERTAINTY EVEN IF THE DAMAGE CANNOT YET BE PRECISELY ASSESSED . TO PREVENT EVEN GREATER DAMAGE IT MAY PROVE NECESSARY TO BRING THE MATTER BEFORE THE COURT AS SOON AS THE CAUSE OF DAMAGE IS CERTAIN . THIS FINDING IS CONFIRMED BY THE RULES IN FORCE IN THE LEGAL SYSTEMS OF THE MEMBER STATES , THE MAJORITY , IF NOT ALL , OF WHICH RECOGNIZE AN ACTION FOR DECLARATION OF LIABILITY BASED ON FUTURE DAMAGE WHICH IS SUFFICIENTLY CERTAIN .
7 WITH REGARD TO THE DEFENDANT ' S CLAIM THAT THE PREJUDICIAL EFFECT ON THE APPLICANTS OF THE RULES ADOPTED FOR THE 1974/75 CEREAL MARKETING YEAR WAS NOT CLEAR SOLELY BECAUSE THE LEVEL OF PRICES IN THE COMMON MARKET HAS BEEN VERY MUCH EXCEEDED BY THE WORLD LEVEL OF PRICES , THE APPLICANTS COULD RELY ON THE ONE HAND ON THE JUDGMENT OF 13 NOVEMBER 1973 GIVEN BETWEEN THE SAME PARTIES IN JOINED CASES 63 TO 69/72 ( 1973 ) ECR 1229 FROM WHICH IT APPEARS THAT THE COMMUNITY RULES FOR THE 1971/72 CEREAL MARKETING YEAR , WHICH ARE BASICALLY THE SAME AS THOSE FOR THE 1974/75 YEAR , WERE SUCH AS TO CAUSE THEM INJURY WITHOUT HOWEVER MAKING THE COMMUNITY LIABLE AND ON THE OTHER HAND ON THEIR FORECAST , WHICH INDEED CAME TRUE AT THE BEGINNING OF 1975 , THAT WORLD PRICES FOR DURUM WHEAT WOULD FALL BEFORE THE END OF THE MARKETING YEAR BELOW THE LEVEL OF COMMUNITY PRICES .
8 IN THESE CIRCUMSTANCES AS SOON AS THE COMMUNITY RULES IN QUESTION WERE PUBLISHED AND BEFORE THEY WERE PUT INTO EFFECT THE APPLICANTS WERE JUSTIFIED IN BRINGING BEFORE THE COURT THE QUESTION WHETHER AND TO WHAT EXTENT THESE RULES WERE SUCH AS TO PUT THEM AT A DISADVANTAGE IN RELATION TO THEIR FRENCH COMPETITORS AND IF SO WHETHER THESE RULES WERE FOR THIS REASON CONTRARY TO THE PRINCIPLE OF EQUAL TREATMENT . SINCE THE DAMAGE WHICH COULD RESULT FROM THE FACTUAL SITUATION AND THE RULES WAS IMMINENT , THE APPLICANTS COULD RESERVE THE RIGHT TO SPECIFY THE AMOUNT OF THE DAMAGE WHICH THE COMMUNITY WOULD HAVE EVENTUALLY TO MAKE GOOD AND RESTRICT THEMSELVES FOR THE TIME BEING TO ASKING FOR A FINDING OF THE COMMUNITY ' S LIABILITY . IT FOLLOWS THAT THE SUBSEQUENT CLAIMS OF THE APPLICANTS THAT THE COMMUNITY BE ORDERED TO PAY THE SPECIFIC AMOUNTS WHICH WERE SUCCESSIVELY AMENDED CANNOT BE REGARDED AS CONSTITUTING AN AMENDMENT OF THE APPLICATION OR AS FRESH ISSUES . THE QUESTION WHETHER SUFFICIENT GROUNDS ARE GIVEN FOR CLAIMING THE SAID AMOUNTS CONCERNS THE ASSESSMENT OF THE DAMAGE AND THUS RELATES NOT TO ADMISSIBILITY BUT TO THE SUBSTANCE OF THE CASE .
9 THE OBJECTION TO THE ADMISSIBILITY MUST THEREFORE BE REJECTED . SUBSTANCE
10 REGULATION NO 120/67 OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS PROVIDES FOR THE FIXING OF A GUARANTEED MINIMUM PRICE FOR DURUM WHEAT IN ORDER TO ENCOURAGE THE CULTIVATION IN THE COMMON MARKET OF THIS WHEAT , WHICH , AS OPPOSED TO THAT OF COMMON WHEAT , IS CLEARLY BELOW REQUIREMENTS . ARTICLE 10 OF THIS REGULATION PROVIDES THAT ' WHERE THE INTERVENTION PRICE FOR DURUM WHEAT . . . IS LOWER THAN THE GUARANTEED MINIMUM PRICE , AID SHALL BE GRANTED FOR THE PRODUCTION OF THIS CEREAL ' , THIS AID BEING EQUAL TO THE DIFFERENCE BETWEEN THE TWO PRICES .
11 AS A RESULT OF THIS AID THE CULTIVATION OF DURUM WHEAT HAS VERY MUCH INCREASED IN CERTAIN AREAS WHERE ITS CULTIVATION IS POSSIBLE , ESPECIALLY IN BEAUCE , THE SOUTH OF FRANCE AND SOUTHERN ITALY SO THAT THE NEEDS OF THE FRENCH AND ITALIAN MILLS ARE TO A LARGE EXTENT SATISFIED . ON THE OTHER HAND THE GERMAN AND BENELUX MEAL PRODUCERS HAVE IN PRACTIVE HAD TO CONTINUE TO OBTAIN SUPPLIES OF DURUM WHEAT FROM THE TRADITIONAL SOURCE , THAT IS TO SAY BY IMPORT FROM THIRD COUNTRIES . IT IS ESTABLISHED THAT DURING THE MARKETING YEARS PRIOR TO THAT OF 1974/75 THIS SITUATION HAS WORKED TO THE DISADVANTAGE OF THE GERMAN MEAL PRODUCERS SUCH AS THE APPLICANTS SINCE THEIR FRENCH COMPETITORS ARE CLEARLY ABLE TO OBTAIN SUPPLIES OF DURUM WHEAT LOCALLY AT PRICES CLOSE TO THE INTERVENTION PRICE ADOPTED FOR THE CEREAL YEAR WHEREAS THEY THEMSELVES HAD TO BUY THE PRODUCT AT PRICES DETERMINED BY THE THRESHOLD PRICE AND COULD OBTAIN COMMUNITY DURUM WHEAT ONLY IN SMALL QUANTITIES .
12 THE APPLICANTS CONSIDER THAT THE COUNCIL AND THE COMMISSION ARE LIABLE FOR THE DAMAGE WHICH THE SITUATION DESCRIBED HAS CAUSED THEM IN VIEW OF THE MANNER IN WHICH THESE INSTITUTIONS HAVE APPLIED REGULATION NO 120/67 . IN THE KNOWLEDGE THAT THE PROVISIONS ADOPTED TO IMPLEMENT THIS REGULATION COULD AT THE VERY LEAST AGGRAVATE THE DISADVANTAGES OF THIS SITUATION , THESE INSTITUTIONS SHOULD EITHER HAVE REDUCED THE AIDS PROVIDED FOR AND THUS ELIMINATED THE INFLUENCE WHICH THEY WOULD HAVE EXERCISED ON THE LEVEL OF PRICES FOR DURUM WHEAT HARVESTED IN FRANCE OR ELSE COMPENSATED THE EFFECT OF THIS INFLUENCE BY LOWERING THE THRESHOLD PRICE SO THAT IT WAS CLOSER TO THE INTERVENTION PRICE . IN THE EVENT OF NEITHER OF THESE MEASURES BEING CONSIDERED POSSIBLE THESE INSTITUTIONS SHOULD HAVE SOUGHT OTHER MEANS OF REDUCING THE DISADVANTAGE OF THE GERMAN AND BENELUX MEAL PRODUCERS . AS A RESULT OF THEIR TOTAL FAILURE TO ACT THE INSTITUTIONS INFRINGED NOT ONLY ARTICLE 39 ( 1 ) ( C ) ACCORDING TO WHICH THE OBJECTIVES OF THE COMMON AGRICULTURAL POLICY ARE INTER ALIA TO STABILIZE MARKETS , BUT ALSO THE FUNDAMENTAL PRINCIPLE OF EQUALITY OF TREATMENT OF PARTNERS OF THE COMMON MARKET EXPRESSED IN ARTICLE 40 ( 3 ) OF THE TREATY .
13 SINCE THE MATTER DEALS WITH A LEGISLATIVE ACT INVOLVING CHOICES OF ECONOMIC POLICY , THERE IS NO LIABILITY ON THE PART OF THE COMMUNITY FOR DAMAGE WHICH INDIVIDUALS MAY HAVE SUFFERED BY REASON OF THIS ACT , BEARING IN MIND THE PROVISIONS OF ARTICLE 215 , SECOND PARAGRAPH , OF THE TREATY , UNLESS THERE IS A SUFFICIENTLY FLAGRANT INFRINGEMENT OF A SUPERIOR RULE OF LAW PROTECTING THE INDIVIDUAL . IN CREATING A SYSTEM OF AIDS INTENDED TO FAVOUR THE PRODUCTION OF DURUM WHEAT IN THE COMMUNITY THE INSTITUTIONS SOUGHT TO ATTAIN SEVERAL OF THE OBJECTIVES IN ARTICLE 39 , IN PARTICULAR ENSURING THE AVAILABILITY OF SUPPLIES IN THE COMMON MARKET AND THE STABILITY OF THE MARKET BY ENCOURAGING THE CULTIVATION OF DURUM WHEAT WHICH IS SHOWING AN UNFAVOURABLE BALANCE AS COMPARED WITH THAT OF COMMON WHEAT . THE CONCEPT OF STABILIZATION OF THE MARKETS CANNOT COVER THE MAINTENANCE AT ALL COSTS OF POSITIONS ALREADY ESTABLISHED UNDER PREVIOUS MARKET CONDITIONS . BY TEMPORARILY GIVING PRIORITY TO SOME OF THE OBJECTIVES OF ARTICLE 39 , AS COMPARED WITH THE MAINTENANCE OF ESTABLISHED POSITIONS , THE INSTITUTIONS DID NOT INFRINGE THE PROVISIONS OF THE TREATY CITED BUT HAVE EXERCISED THEIR POWERS IN THE CONTEXT OF A COMMON AGRICULTURAL POLICY IN A SUCCESSFUL WAY FOR THE POLICY HAS CONTRIBUTED TO A CONSIDERABLE LOCAL INCREASE IN THE PRODUCTION OF DURUM WHEAT .
14 IT IS NECESSARY HOWEVER , TO INQUIRE WHETHER IN THE PLANNING OF THIS POLICY OF AID THE REGULATION OF THE COUNCIL HAS NOT , AS THE APPLICANTS CLAIM , WRONGFULLY PUT THE GERMAN MEAL PRODUCERS AT A DISADVANTAGE VIS-A-VIS THEIR FRENCH COMPETITORS .
15 DURING THE MARKETING YEARS PRIOR TO 1974/75 DURUM WHEAT HARVESTED IN FRANCE HAS BEEN MARKETED AT PRICES CONSISTENTLY NEAR THE INTERVENTION PRICE WITHOUT EVER APPROACHING THAT OF IMPORTED DURUM WHEAT . THIS FACTOR JUSTIFIES SAYING THAT THE RULES IN QUESTION HAVE PROFITED THE PURCHASERS OF DURUM WHEAT , THAT IS TO SAY MAINLY THE FRENCH MEAL PRODUCERS , RATHER THAN THE GROWERS THEMSELVES . THIS SITUATION WHICH WAS FOUND AND RECOGNIZED BY THE DEFENDANT INSTITUTIONS DURING THE COURSE OF THE PROCEEDINGS IN JOINED CASES 63 TO 69/72 AND DURING THE PRESENT PROCEEDINGS SHOULD HAVE LED THEM TO RECONSIDER , IF NOT THE SYSTEM OF AIDS , AT LEAST THEIR LEVEL . THE FACT THAT THE COUNCIL DID NOT REMEDY THIS SITUATION COULD HAVE GIVEN RISE TO THE QUESTION WHETHER THE SITUATION WAS COMPATIBLE WITH ARTICLES 39 AND 40 OF THE TREATY IF THE CONDITIONS OF THE MARKET HAD REMAINED UNCHANGED .
16 HOWEVER SINCE THE AUTUMN OF 1973 WORLD PRICES OF DURUM WHEAT INCREASED ABOVE THE LEVEL OF THE COMMUNITY TARGET AND THRESHOLD PRICES AND THIS INCREASE AFTER A CERTAIN TIME WAS REFLECTED IN THE PRICES OF COMMUNITY DURUM WHEAT . AS A RESULT OF THIS PRICE TREND THE COUNCIL , ON A PROPOSAL FROM THE COMMISSION , INCREASED THE INTERVENTION , TARGET , THRESHOLD AND MINIMUM GUARANTEE PRICES FOR 1974/75 BY ABOUT 40 U.A . IN RELATION TO THOSE OF THE PREVIOUS YEAR . ALTHOUGH THE REASON WHY THE MINIMUM GUARANTEED PRICE , THE FIXING OF WHICH IS PROMPTED BY VERY DIFFERENT OBJECTIVES , WAS INCREASED AS MUCH AS THE INTERVENTION , TARGET AND THRESHOLD PRICES IS NOT CLEAR , IT IS CONCEIVABLE THAT IN THE UNCERTAIN CONDITIONS OF THE WORLD MARKET THE COUNCIL CONSIDERED IT WISER TEMPORARILY TO MAINTAIN THE WHOLE SYSTEM IN FORCE . IN ANY EVENT IN VIEW OF THE CIRCUMSTANCES MENTIONED IT IS NOT POSSIBLE TO DESCRIBE THE POSTPONEMENT OF AMENDMENT OF THE SYSTEM TO A SUBSEQUENT DATE AND THE DECISION TO MAINTAIN FOR 1974/75 THE PREVIOUS STRUCTURES OF THE SYSTEM AS A SUFFICIENTLY FLAGRANT INFRINGEMENT OF ARTICLES 39 AND 40 OF THE TREATY . THIS CONCLUSION IS CONFIRMED BY THE FACT THAT AS FROM THE 1976/77 CEREAL YEAR THE SYSTEM OF AIDS HAS BEEN AMENDED SO AS TO REMEDY THE ABOVEMENTIONED DISCRIMINATION .
17 FURTHER IN THE EXCEPTIONAL CONDITIONS WHICH GOVERNED THE TREND IN PRICES OF DURUM WHEAT HARVESTED IN FRANCE DURING 1974/75 IT WAS NOT CLEAR THAT THE EXISTENCE OF THE SYSTEM OF AIDS AND THEIR MAINTENANCE AT THE PREVIOUS LEVEL COULD HAVE ANY EFFECT ON THIS TREND COMPARABLE TO THAT OBSERVED IN RESPECT OF THE PREVIOUS PERIOD .
18 THE APPLICANTS , AS THEY HAD ALREADY DONE IN JOINED CASES 63 TO 69/72 , COMPLAINED FURTHER THAT THE COMMUNITY INSTITUTIONS DID NOT REDUCE THE MARGIN BETWEEN THE INTERVENTION PRICE FIXED FOR DURUM WHEAT AND THE THRESHOLD PRICE . WHERE THE PRODUCT IS IN SHORT SUPPLY ON THE MARKET AS IN THE PRESENT CASE THERE IS NO REASON FOR A LARGE MARGIN BETWEEN THESE TWO PRICES FOR IT MAKES COMPETITION MORE DIFFICULT FOR THOSE MEAL PRODUCERS OBLIGED TO OBTAIN SUPPLIES MAINLY ON THE WORLD MARKET IN RELATION TO THOSE LOCATED IN AREAS WHERE COMMUNITY DURUM WHEAT IS CULTIVATED . THE REASONS WHY IT HAS BEEN POSSIBLE TO CONSIDER THE DIFFERENCE BETWEEN THESE TWO PRICES NECESSARY , THAT IS PREVENTION OF UNDESIRABLE INTERFERENCE BETWEEN THE SALE OF DURUM WHEAT ON THE ONE HAND AND THAT OF COMMON WHEAT ON THE OTHER NO LONGER EXISTED FOR THE YEAR 1974/75 DURING WHICH THE DIFFERENCE IN PRICES FIXED FOR THE TWO PRODUCTS , WHICH IN PREVIOUS YEARS WAS SOME 20 % , WAS INCREASED CONSIDERABLY .
19 FOR 1974/75 THE DIFFERENCE BETWEEN THE INTERVENTION AND THRESHOLD PRICES WAS , IN RELATION TO THAT OF 1973/74 , REDUCED IN TERMS OF PERCENTAGE AND , AT LEAST UNTIL 7 OCTOBER 1974 , EVEN IN ABSOLUTE TERMS . THIS DIFFERENCE WAS NECESSARY TO MAINTAIN COMMUNITY PREFERENCE IN THOSE COUNTRIES WHERE DURUM WHEAT IS PRODUCED SINCE A REDUCTION IN THE THRESHOLD PRICE IN RELATION TO THE INTERVENTION PRICE WOULD ENDANGER THE FLOW OF THE COMMUNITY PRODUCT FROM SOUTHERN ITALY TO NORTHERN ITALY AND FROM THE SOUTH OF FRANCE TO THE ATLANTIC COAST . FIXING DIFFERENT THRESHOLD PRICES FOR MEMBER STATES NOT GROWING DURUM WHEAT AND OTHER MEMBER STATES AS SUGGESTED BY THE APPLICANTS WOULD BE AN EXTREMELY DELICATE MEASURE REQUIRING AN ASSESSMENT OF UNCERTAIN FACTORS WHICH WOULD HAVE ASSUMED SAFER AND MORE EXTENSIVE INFORMATION THAN THE STATISTICS SUPPLIED .
20 MOREOVER IN THE PERSPECTIVES OF 1974/75 AS THEY APPEARED TO THE COUNCIL WHEN THE RELEVANT REGULATION WAS ADOPTED THE REDUCTION OF THE THRESHOLD PRICE IN RELATION TO THE INTERVENTION PRICE COULD APPEAR ONLY OF ACADEMIC INTEREST SINCE THE LEVEL OF WORLD PRICES CONSIDERABLY EXCEEDED THAT PROVIDED FOR BY THE COMMUNITY RULES . IN THESE CIRCUMSTANCES IT IS NOT POSSIBLE TO COMPLAIN THAT THE INSTITUTIONS DID NOT REDUCE THE DIFFERENCE BETWEEN THE TWO PRICES SAVE TO THE EXTENT ULTIMATELY ADOPTED . ALTHOUGH IT IS TRUE THAT AS FROM THE BEGINNING OF 1975 THE WORLD LEVEL OF PRICES DECREASED AND FELL BELOW THE THRESHOLD PRICES FIXED BY THE COMMUNITY RULES , THE LEVEL OF THE THRESHOLD PRICE CANNOT HAVE SERIOUSLY HARMED THE GERMAN MEAL PRODUCERS , WHO , IN SO FAR AS THEY NEEDED STILL TO OBTAIN SUPPLIES , COULD AT THE TIME PROFIT FROM A FALL IN THE PURCHASE PRICES OF DURUM WHEAT HARVESTED IN FRANCE WHICH WERE ONCE AGAIN APPROACHING THE INTERVENTION PRICE .
21 FOR REASONS SIMILAR TO THOSE MENTIONED ABOVE IT IS NOT POSSIBLE EITHER TO COMPLAIN THAT THE COMMUNITY INSTITUTIONS DID NOT TAKE INTO ACCOUNT POSSIBLE REMEDIES SUGGESTED BY THE APPLICANTS SUCH AS A REFUND TO THE GERMAN MEAL PRODUCERS OF THE IMPORT LEVY ON DURUM WHEAT COMING TO THE GERMAN MILLS FROM THIRD COUNTRIES . IT IS UNDERSTANDABLE THAT THESE INSTITUTIONS CONSIDER THAT IN RESPECT OF SUCH AN EXCEPTIONAL YEAR AS 1974/75 IT WOULD NOT HAVE BEEN WISE TO EXPERIMENT WITH MEASURES SO DIFFICULT TO IMPLEMENT . ACCORDINGLY IT IS NOT POSSIBLE EITHER TO FIND IN THIS RESPECT A SUFFICIENTLY FLAGRANT INFRINGEMENT OF THE RULES AND PRINCIPLES OF THE TREATY WHICH HAVE BEEN CITED .
22 THE APPLICANTS CITED AGAIN THE EXISTENCE OF A PRINCIPLE THAT CALLS FOR COMPENSATION BY REASON OF AN ILLEGAL INTERVENTION ON THE PART OF A PUBLIC AUTHORITY , COMPARABLE TO AN EXPROPRIATION .
23 WITHOUT ITS BEING NECESSARY TO DECIDE THE QUESTION WHETHER ARTICLE 215 COVERS SUCH A LIABILITY , IT SUFFICES TO STATE THAT SINCE THE THE CRITICIZED INTERVENTIONS INVOLVE NO ILLEGALITY , THE SUBMISSION RELATING THERETO MUST BE REJECTED .