1 IN THIS ACTION, FILED ON 10 JULY 1972, THE APPLICANT SEEKS PAYMENT FROM THE COMMISSION OF 50 000 DM BY WAY OF COMPENSATION FOR THE DAMAGE SUFFERED BY THE APPLICANT OWING TO THE COMMISSION' S FAILURE TO FIX COMPENSATORY AMOUNTS, AS ENVISAGED BY ARTICLE 1 OF REGULATION NO 974/71 OF THE COUNCIL OF 12 MAY 1971 ( OJ L 106, P . 1 ), FOR EXPORTS OF PRODUCTS PROCESSED FROM BARLEY FOR THE PERIOD FROM 12 MAY TO 2 AUGUST 1971 .
2 THEREBY, IT IS ALLEGED, THE COMMISSION INFRINGED BOTH THE ABOVE REGULATION AND THE RULE AGAINST DISCRIMINATION CONTAINED IN ARTICLE 40 OF THE EEC TREATY, AND THESE INFRINGEMENTS INVOLVE THE COMMUNITY IN LIABILITY UNDER THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY . THE INFRINGEMENTS ARISE EITHER FROM THE FACT THAT REGULATION NO 1014/71 OF 17 MAY 1971 ( OJ L 110, P . 10 ), IN FORCE DURING THE PERIOD REFERRED TO ABOVE, MADE NO PROVISION FOR COMPENSATORY AMOUNTS ON EXPORTS OF PRODUCTS PROCESSED FROM BARLEY, OR FROM THE FACT THAT THE COMMISSION DID NOT GIVE RETROSPECTIVE EFFECT TO REGULATION NO 1687/71 OF 30 JULY 1971 ( OJ L 173, P . 1 ), WHICH CAME INTO FORCE ON 2 AUGUST 1971 AND PROVIDED FOR THE AMOUNTS TO BE GRANTED ON THESE PRODUCTS . ADMISSIBILITY
3 WHILE IT HAS MADE NO FORMAL OBJECTION ON THE POINT, THE COMMISSION HAS EXPRESSED DOUBT AS TO WHETHER A CLAIM FOR DAMAGES CAN BE ADMISSIBLE, AS THE COURT HAS ALREADY DECIDED, WHEN, BY CHALLENGING THE LEGALITY OF A COMMUNITY REGULATION, IT SEEKS A FINANCIAL RESULT, IDENTICAL OR SIMILAR TO THAT WHICH WOULD ARISE FROM THE ANNULMENT OF THE REGULATION, ALTHOUGH AN APPLICATION BY THE APPLICANT FOR SUCH AN ANNULMENT WOULD NOT ITSELF BE ADMISSIBLE .
4 HOWEVER, THE ACTION FOR DAMAGES PROVIDED FOR IN ARTICLES 178 AND 215 OF THE TREATY WAS INCLUDED AS AN AUTONOMOUS FORM OF ACTION, WITH A PARTICULAR PURPOSE TO FULFIL WITHIN THE SYSTEM OF ACTIONS, AND SUBJECT TO CONDITIONS ON ITS USE BY ITS SPECIFIC NATURE . SUCH AN ACTION DIFFERS FROM AN APPLICATION FOR ANNULMENT IN THAT ITS END IS NOT THE CANCELLATION OF A PARTICULAR MEASURE BUT COMPENSATION FOR DAMAGE CAUSED BY AN INSTITUTION IN THE PERFORMANCE OF ITS DUTIES . THE ACTION FOR DAMAGES SEEKS ONLY RECOGNITION THAT A RIGHT TO COMPENSATION EXISTS AND, THEREFORE, SATISFACTION SOLELY FOR THE BENEFIT OF THE APPLICANT .
5 THE COMMISSION THEN MAINTAINS THAT THE APPLICANT SHOULD BE SENT BACK TO PURSUE ITS CLAIM BEFORE THE ADMINISTRATIVE AND JUDICIAL AUTHORITIES IN THE FEDERAL REPUBLIC OF GERMANY, ON THE GROUNDS THAT THE EVENT GIVING RISE TO THE PRESENT DISPUTE WAS THE REFUSAL BY THE COMPETENT CUSTOMS OFFICE IN THAT MEMBER STATE TO GRANT THE APPLICANT COMPENSATORY AMOUNTS ON THE EXPORTS IT HAD MADE TO THIRD COUNTRIES . IF SUCH A PROCEDURE WERE FOLLOWED IT WOULD RESULT IN A REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE TREATY FROM THE GERMAN COURTS OF THE QUESTION OF THE VALIDITY OF REGULATIONS NOS 1014/71 AND 1687/71 .
6 BUT THE COURT ALREADY HAS THE CASE BEFORE IT AND WITHIN ITS JURISDICTION, AND IS THEREFORE BOUND TO SEE WHETHER OR NOT THESE REGULATIONS ARE TAINTED WITH THE ALLEGED IRREGULARITIES . IT WOULD NOT BE IN KEEPING WITH THE PROPER ADMINISTRATION OF JUSTICE AND THE REQUIREMENTS OF PROCEDURAL EFFICIENCY TO COMPEL THE APPLICANT TO HAVE RECOURSE TO NATIONAL REMEDIES AND THUS TO WAIT FOR A CONSIDERABLE LENGTH OF TIME BEFORE A FINAL DECISION ON HIS CLAIM IS MADE .
7 THE ACTION IS THEREFORE ADMISSIBLE . ON THE SUBSTANCE
8 SINCE THE DISPUTED ACTIONS ARE OF A LEGISLATIVE NATURE AND CONSTITUTE MEASURES TAKEN IN THE SPHERE OF ECONOMIC POLICY, THE COMMUNITY IS NOT LIABLE FOR ANY DAMAGE SUFFERED BY INDIVIDUALS AS A CONSEQUENCE OF THOSE ACTIONS UNDER THE PROVISIONS OF ARTICLE 215, SECOND PARAGRAPH, OF THE TREATY, UNLESS A SUFFICIENTLY FLAGRANT VIOLATION OF A SUPERIOR RULE OF LAW FOR THE PROTECTION OF THE INDIVIDUAL HAS OCCURRED . FOR THAT REASON THE COURT MUST FIRST CONSIDER WHETHER SUCH A VIOLATION HAS OCCURRED .
9 REGULATION NO 974/71 WAS AMENDED BY COUNCIL REGULATION ( EEC ) NO 2746/72 OF 19 DECEMBER, 1972 ( OJ L 291, P . 248 ), WHICH CAME INTO FORCE AS FROM 1 JULY 1972 . HOWEVER, SINCE THE EVENTS FORMING THE SUBJECT MATTER OF THE DISPUTE TOOK PLACE BEFORE THAT DATE, THE ACTION WILL BE DECIDED ON THE BASIS OF THE ORIGINAL TEXT OF REGULATION NO 974/71, WHICH WILL ACCORDINGLY BE THE ONLY ONE REFERRED TO IN WHAT FOLLOWS . THE FIRST SUBMISSION
10 1 . THE APPLICANT MAINTAINS THAT THE COMMISSION WAS UNDER A DUTY IN PRINCIPLE TO FIX COMPENSATORY AMOUNTS FOR ALL THE PRODUCTS LISTED IN ARTICLE 1 ( 2 ) OF REGULATION NO 974/71; THIS WAS BY VIRTUE OF ARTICLE 7 OF THE SAME REGULATION WHICH STATES " PARTIAL ... USE MAY NOT BE MADE OF THE AUTHORIZATION PROVIDED FOR IN THIS REGULATION ". THE ABOVE PROVISION, IT IS MAINTAINED, IS ADDRESSED TO THE COMMISSION, AS WELL AS TO MEMBER STATES .
11 ACCORDING TO ARTICLE 1 ( 1 ) OF REGULATION NO 974/71, ANY MEMBER STATE WHICH ADOPTS PARTICULAR MONETARY MEASURES IS " AUTHORIZED " TO " GRANT ON EXPORTS TO MEMBER STATES AND THIRD COUNTRIES COMPENSATORY AMOUNTS ". ARTICLE 7, ECHOING THE TERM " AUTHORIZATION ", IS ADDRESSED SOLELY TO MEMBER STATES .
12 BY VIRTUE OF THE LAST SENTENCE IN ARTICLE 1 ( 2 ) OF REGULATION NO 974/71, THE OPTION OF GRANTING COMPENSATORY AMOUNTS ON EXPORTS " SHALL BE EXERCISED ONLY WHERE APPLICATION OF THE MONETARY MEASURES REFERRED TO IN PARAGRAPH 1 WOULD LEAD TO DISTURBANCES IN TRADE IN AGRICULTURAL PRODUCTS ". THEREFORE, THE AMOUNTS IN QUESTION CANNOT BE GRANTED FOR ANY SPECIFIC PRODUCT UNLESS WITHOUT THEM TRADE IN THAT PRODUCT WOULD BE SUBJECT TO DISTURBANCES .
13 FROM THE SENSE AND PURPOSE OF REGULATION NO 974/71 IT IS APPARENT THAT ANY DECISION IN THIS RESPECT IS TO BE MADE BY THE COMMISSION AND NOT BY MEMBER STATES . ARTICLE 6 MAKES IT CLEAR THAT THE COMMISSION, NOT A MEMBER STATE, IS TO FIX THE COMPENSATORY AMOUNTS AND, CONSEQUENTLY, MAKE THE DECISION THAT UNDER THE REQUIREMENTS IN THE REGULATION, NO COMPENSATORY AMOUNT SHOULD BE ATTACHED TO A PARTICULAR PRODUCT . FURTHERMORE, REGULATION NO 974/71 WAS INTRODUCED ON THE BASIS OF POINT FOUR OF THE COUNCIL RESOLUTION OF 9 MAY 1971 ON THE MONETARY SITUATION ( OJ C 58, P . 1 ), WHICH STATES : " BEING ANXIOUS TO FORESTALL RECOURSE TO UNILATERAL MEASURES TO DEAL WITH POSSIBLE DISTURBANCES IN TRADE IN AGRICULTURAL PRODUCTS, THE COUNCIL SHALL IMMEDIATELY AND IN ACCORDANCE WITH ARTICLE 103 OF THE TREATY, DRAW UP APPROPRIATE MEASURES ". SINCE THE OBJECT OF THE REGULATION WAS THEREFORE TO PRECLUDE RECOURSE TO " UNILATERAL MEASURES ", IT IS HARDLY CONCEIVABLE THAT IT WOULD LEAVE TO THE EXCLUSIVE DISCRETION OF THE MEMBER STATES CONCERNED THE QUESTION WHETHER, FOR A SPECIFIED PRODUCT, IT IS OR IS NOT NECESSARY, TO GRANT THESE AMOUNTS IN ORDER TO AVOID DISTURBANCES .
14 FOR THOSE REASONS IT FOLLOWS THAT THE COMMISSION IS UNDER NO DUTY TO FIX COMPENSATORY AMOUNTS FOR EVERY PRODUCT LISTED IN REGULATION NO 974/71 .
15 2 . THE ARGUMENT THAT THE COMMISSION WAS UNDER A DUTY TO FIX AB INITIO COMPENSATORY AMOUNTS FOR EXPORTS OF THE PRODUCTS CONCERNED IS ALSO SUPPORTED, IN THE APPLICANT' S VIEW, BY THE PRACTICE FOLLOWED BY THAT INSTITUTION IN APPLYING ARTICLE 4 ( 2 ) OF THE REGULATION, WHEREBY " NO COMPENSATORY AMOUNT SHALL BE FIXED FOR PRODUCTS FOR WHICH THE AMOUNT CALCULATED IN ACCORDANCE WITH ARTICLE 2 IS NEGLIGIBLE IN RELATION TO THEIR AVERAGE VALUE ". ACCORDING TO THE APPLICANT THE COMMISSION ITSELF OMITTED TO FIX COMPENSATORY AMOUNTS ONLY WHEN THOSE WOULD COME TO LESS THAN 1 PER CENT OF THE AVERAGE VALUE OF THE PRODUCT . HAVING THUS VOLUNTARILY LIMITED ITS DISCRETIONARY POWERS, THE COMMISSION WAS OBLIGED TO FIX COMPENSATORY AMOUNTS WHENEVER THAT LIMIT WAS SURPASSED, WHICH WAS SO, ON THE COMMISSION' S OWN ADMISSION, IN THE CASE OF PRODUCTS PROCESSED FROM BARLEY .
16 HOWEVER, IT IS CLEAR FROM THE COMMISSION' S EXPLANATION THAT, FAR FROM OBSERVING THIS TENET STRICTLY, THE COMMISSION REGARDED IT FROM THE START AS NO MORE THAN A GUIDE AND RESERVED THE RIGHT TO DEROGATE FROM IT WHENEVER IT CONSIDERED, IN ITS DISCRETION, THAT SPECIAL CIRCUMSTANCES IN THE PARTICULAR INSTANCE SO REQUIRED . IN ADDITION, THE LAST SENTENCE OF ARTICLE 1 ( 2 ) OF REGULATION NO 974/71, OBLIGED THE COMMISSION TO AVOID FIXING A COMPENSATORY AMOUNT WHENEVER THIS DID NOT APPEAR NECESSARY FOR THE PREVENTION OF DISTURBANCES, IRRESPECTIVE OF THE PROPORTION OF THE AMOUNT TO THE AVERAGE VALUE OF THE RELEVANT PRODUCT .
17 ACCORDINGLY, THE SUBMISSION BASED ON A BREACH OF A REGULATION NO 974/71 IS UNFOUNDED . THE SECOND SUBMISSION
18 THE APPLICANT CLAIMS THAT BY NOT FIXING COMPENSATORY AMOUNTS FOR EXPORTS OF PRODUCTS PROCESSED FROM BARLEY THE COMMISSION PRACTISED DISCRIMINATION BETWEEN GERMAN EXPORTERS OF SUCH PRODUCTS AND, ON THE ONE HAND, EXPORTERS FROM OTHER MEMBER STATES WHICH HAD NOT ADOPTED THE MONETARY MEASURES REFERRED TO IN REGULATION NO 974/71 AND, ON THE OTHER HAND, GERMAN TRADERS EXPORTING PRODUCTS WHICH HAD BENEFITED FROM THE COMPENSATORY SYSTEM INTRODUCED BY THIS PROVISION FROM THE BEGINNING .
19 1 . AS REGARDS THE COMPARISON MADE WITH EXPORTERS FROM OTHER MEMBER STATES THE ADOPTION OF REGULATION NO 974/71, INTRODUCED BY VIRTUE OF ARTICLE 103 OF THE EEC TREATY AND FORMING THE BASIS OF REGULATIONS NOS 1014/71 AND 1687/71, WAS PROMPTED BY THE FACT THAT SOME OF THE MEMBER STATES, INCLUDING THE FEDERAL REPUBLIC OF GERMANY, HAD WIDENED THE MARGINS OF FLUCTUATION FOR THE EXCHANGE RATES OF THEIR CURRENCIES IN RELATION TO THEIR OFFICIAL PARITIES .
20 IF THIS WIDENING MAKES THE SITUATION OF IMPORTERS AND EXPORTERS IN THE COUNTRY CONCERNED DIFFERENT FROM THAT OF THEIR COUNTERPARTS IN OTHER MEMBER STATES, THE DISPARITY IS TO BE ATTRIBUTED NOT TO COMMUNITY INTERVENTION BUT TO THE DECISION TAKEN BY THIS MEMBER STATE .
21 WHILE THE POWERS CONFERRED ON COMMUNITY INSTITUTIONS BY THE TREATY, AND BY ARTICLE 103 ( 2 ) IN PARTICULAR, INCLUDE THE OPTION OF MITIGATING SOME OF THE EFFECTS OF SUCH NATIONAL MEASURES, AS A MATTER OF THE " COMMON CONCERN " REFERRED TO IN ARTICLE 103 ( 1 ), IT DOES NOT FOLLOW THAT THESE INSTITUTIONS ARE BOUND TO COMPENSATE FOR ALL THE EFFECTS INSOFAR AS THESE ARE DISADVANTAGEOUS TO IMPORTERS AND EXPORTERS IN THE MEMBER STATES CONCERNED . IN FACT, BY ENABLING THE COUNCIL, WITHOUT OBLIGING IT, TO " ADOPT ... MEASURES APPROPRIATE TO THE SITUATION ", ARTICLE 103 CONFERRED ON THAT BODY WIDE POWERS OF APPRAISAL, TO BE EXERCISED AS A MATTER OF " COMMON CONCERN ", AND NOT IN THE PRIVATE INTERESTS OF A PARTICULAR GROUP OF PARTICIPANTS IN THE MARKET . THE ALLEGED DISCRIMINATION DOES NOT THEREFORE EXIST .
22 2 . AS REGARDS THE COMPARISON MADE WITH GERMAN EXPORTERS OF GOODS WHICH HAD HAD THE BENEFIT OF THIS COMPENSATORY SYSTEM FROM THE START, THE DIFFERENT TREATMENT OF WHICH THE APPLICANT COMPLAINS WOULD NOT BE A VIOLATION OF THE PRINCIPLE OF NON-DISCRIMINATION UNLESS IT APPEARED TO BE ARBITRARY .
23 IT SHOULD BE NOTED THAT IN APPLYING THE LAST SENTENCE OF ARTICLE 1 ( 2 ) OF REGULATION NO 974/71, THE COMMISSION HAS WIDE POWERS OF APPRAISAL IN JUDGING WHETHER THE MONETARY MEASURES CONTEMPLATED BY THE SAID REGULATION COULD LEAD TO DISTURBANCES IN TRADE IN AGRICULTURAL PRODUCTS . BEARING IN MIND THE EXCEPTIONAL NATURE OF THE COMPENSATORY AMOUNTS, THE COMMISSION DOES NOT APPEAR TO HAVE EXERCISED THESE POWERS IN AN ARBITRARY FASHION .
24 MOREOVER, REGULATION NO 974/71 IS EVIDENTLY AN EMERGENCY MEASURE, CONSIDERING THE EVENTS LEADING UP TO ITS ADOPTION; CONSEQUENTLY THE COMMISSION WAS COMPELLED TO DRAW UP THE RULES FOR ITS IMPLEMENTATION WITHIN A VERY SHORT SPACE OF TIME, YET AT THE SAME TIME CONSIDERING, FOR EACH OF THE NUMEROUS PRODUCTS CONCERNED, WHETHER ITS EXCLUSION FROM THE COMPENSATORY SCHEME WOULD LEAD TO DISTURBANCES IN TRADE IN THAT PRODUCT . SINCE THE ASSESSMENT WHICH THE COMMISSION HAD TO MAKE WAS PERFORCE AN OVERALL ONE, THE POSSIBILITY THAT SOME OF THE DECISIONS IT MADE MIGHT SUBSEQUENTLY APPEAR TO BE DEBATABLE ON ECONOMIC GROUNDS OR SUBJECT TO MODIFICATION WOULD NOT IN ITSELF BE SUFFICIENT TO PROVE THE EXISTENCE OF A VIOLATION OF THE PRINCIPLE OF NON-DISCRIMINATION, ONCE IT WAS ESTABLISHED THAT THE CONSIDERATIONS ADOPTED BY IT FOR GUIDANCE WERE NOT MANIFESTLY ERRONEOUS . IT IS CLEAR FROM THE DOCUMENTS THAT THIS WAS ESTABLISHED IN THE CASE OF THE EVALUATION MADE OF SITUATION OF THE PRODUCTS IN DISPUTE IN RELATION BOTH TO THAT OF OTHER PRODUCTS PROCESSED FROM CEREALS, AND TO THAT OF BARLEY .
25 ACCORDINGLY THE SUBMISSION BASED ON AN ALLEGED DISCRIMINATION IS NOT WELL-FOUNDED .
26 THE NET RESULT OF THE ABOVE CONSIDERATIONS IS THAT REGULATIONS NOS 1014/71 AND 1687/71 ARE NOT TAINTED WITH THE ILLEGALITY ALLEGED . CONSEQUENTLY, THE CLAIM MUST BE DISMISSED, AND THERE IS NO NEED TO EXAMINE THE OTHER CONDITIONS FOR NON-CONTRACTUAL LIABILITY CONTAINED IN THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY .