1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 18 APRIL 1983 , EXIMO GMBH , HAMBURG , BROUGHT AN ACTION PURSUANT TO ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY SEEKING COMPENSATION FOR DAMAGE ALLEGEDLY CAUSED TO IT BY THE COMMISSION IN CONNECTION WITH THE EXPORT OF A CONSIGNMENT OF BUTTER UNDER TARIFF SUBHEADING 04.03 A , BY REASON OF THE CIRCUMSTANCES IN WHICH , IN THE TRANSITION FROM THE 1981/82 MILK YEAR TO THE 1982/83 YEAR , THE ADJUSTMENT OF REFUNDS FIXED IN ADVANCE IN THE MILK AND MILK PRODUCTS SECTOR WAS EFFECTED ( COMMISSION REGULATION NO 1669/82 OF 14 . 6 . 1982 FIXING THE ADJUSTMENT TO BE MADE TO CERTAIN REFUNDS FIXED IN ADVANCE FOR MILK AND MILK PRODUCTS , OFFICIAL JOURNAL , L 187 , P . 1 ). THE RELEVANT REGULATIONS AND THE FACTS OF THE CASE
2 REGULATION NO 876/68 OF THE COUNCIL OF 28 JUNE 1968 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( I ), P . 234 ) LAYS DOWN GENERAL RULES FOR GRANTING EXPORT REFUNDS ON MILK AND MILK PRODUCTS AND CRITERIA FOR FIXING THEIR AMOUNT . ARTICLE 5 ( 3 ) OF THE REGULATION , AS AMENDED BY REGULATION NO 2732/71 OF THE COUNCIL OF 20 DECEMBER 1971 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( III ), P . 1020 ), PROVIDES THAT IT MAY BE DECIDED THAT THE REFUND FIXED IN ADVANCE BE ADJUSTED , INTER ALIA , IF INTERVENTION PRICES ARE ALTERED .
3 BY A COMMUNICATION ISSUED ON 13 NOVEMBER 1981 , THE COMMISSION MADE KNOWN ITS INTENTIONS REGARDING ADJUSTMENTS TO REFUNDS FIXED IN ADVANCE FOR MILK PRODUCTS TO BE EXPORTED DURING THE 1982/83 MILK YEAR , STATING THAT THE AMOUNTS OF ADJUSTMENT WOULD BE FIXED ACCORDING TO CHANGES IN THE INTERVENTION PRICES AND WOULD BE APPLICABLE TO REFUNDS FIXED IN ADVANCE MORE THAN 14 DAYS BEFORE THE DATE OF THE COUNCIL DECISION CONCERNING INTERVENTION PRICES APPLICABLE DURING THE 1982/83 MILK YEAR .
4 IT SHOULD BE RECALLED THAT SPECIAL DIFFICULTIES WERE ASSOCIATED WITH THE TRANSITION FROM THE 1981/82 TO THE 1982/83 YEAR , AND THAT THE COUNCIL DELAYED FIVE TIMES THE START OF THE NEW MILK YEAR , HAVING FAILED TO ARRIVE AT A DECISION ON THE INTERVENTION PRICES . IT WAS BY REGULATION NO 1184/82 OF 18 MAY 1982 ( OFFICIAL JOURNAL , L 140 , P . 2 ) THAT THE COUNCIL FINALLY FIXED THE TARGET PRICE FOR MILK AND THE VARIOUS INTERVENTION PRICES , INTER ALIA FOR BUTTER , FOR THE 1982/83 MILK YEAR , WITH EFFECT FROM 20 MAY 1982 . THE COMMISSION ACCORDINGLY FIXED NEW EXPORT REFUNDS IN THE MILK AND MILK PRODUCTS SECTOR BY REGULATION NO 1324/82 OF 28 MAY 1982 ( OFFICIAL JOURNAL , L 150 , P . 46 ).
5 BY REGULATION NO 1669/82 , REFERRED TO ABOVE , THE COMMISSION FIXED THE ADJUSTMENTS TO BE MADE TO CERTAIN REFUNDS FIXED IN ADVANCE IN THE MILK AND MILK PRODUCTS SECTOR . ACCORDING TO ANNEX I TO THE REGULATION , THE RATE OF THE ADJUSTMENT FOR THE PRODUCT IN QUESTION WAS FIXED AT 31.86 EUROPEAN CURRENCY UNITS ( ECU ) PER 100 KG . ARTICLE 1 OF THAT MEASURE , WHICH CAME INTO FORCE ON THE DAY AFTER ITS PUBLICATION IN THE OFFICIAL JOURNAL , THAT IS , 2 JULY 1982 , RESTRICTS THE ADJUSTMENT TO THOSE REFUNDS FIXED IN ADVANCE ON OR BEFORE 3 MAY 1982 . IN THE SIXTH RECITAL IN THE PREAMBLE , THAT TEMPORAL LIMITATION IS JUSTIFIED IN THE FOLLOWING TERMS : ' ' IN ORDER TO ELIMINATE SPECULATION , IT IS NECESSARY , AS ALREADY ANNOUNCED , TO LIMIT OPERATION OF THE ADJUSTMENT IN CASES WHERE THE EXPORT LICENCE WAS APPLIED FOR MORE THAN 14 DAYS BEFORE THE DATE ON WHICH THE COUNCIL SET THE INTERVENTION PRICES FOR THE 1982/83 MILK YEAR . ' '
6 IT APPEARS FROM THE CASE FILE THAT ON 12 MAY 1982 THE APPLICANT APPLIED FOR A LICENCE FOR THE EXPORT TO SWITZERLAND OF A CONSIGNMENT OF 500 TONNES OF BUTTER , WITH ADVANCE FIXING OF THE REFUNDS IN THE AMOUNT OF 105 ECU PER 100 KG ; IT OBTAINED THE LICENCE ON 18 MAY 1982 . IN ORDER TO OBTAIN THE CERTIFICATE , IT WAS OBLIGED TO LODGE SECURITY IN THE AMOUNT OF DM 53 150 , PURSUANT TO THE APPLICABLE RULES . IT IS COMMON GROUND THAT THE APPLICANT DID NOT USE THAT LICENCE .
7 ON 29 MAY 1982 THE APPLICANT APPLIED FOR AND OBTAINED AN EXPORT LICENCE FOR THE SAME QUANTITY OF BUTTER , WITH ADVANCE FIXING OF THE REFUND AT THE RATE THEN IN FORCE , THAT IS , 133 ECU PER 100 KG . IT IS LIKEWISE COMMON GROUND THAT THAT LICENCE WAS DULY USED .
8 THE APPLICANT SUBSEQUENTLY REQUESTED THE CANCELLATION OF THE FIRST EXPORT LICENCE . THE AUTHORITIES REFUSED TO CANCEL THE LICENCE , AND THE APPLICANT THEREFORE BROUGHT AN ACTION AGAINST THAT REFUSAL BEFORE THE VERWALTUNGSGERICHT ( ADMINISTRATIVE COURT ) FRANKFURT AM MAIN ; THE ACTION WAS DISMISSED BY A DECISION OF 27 SEPTEMBER 1983 . IT APPEARS MOREOVER FROM A DOCUMENT SUBMITTED BY THE APPLICANT THAT THE SECURITY HAS IN THE MEANTIME BEEN DECLARED FORFEIT BY DECISION OF THE BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG ( FEDERAL OFFICE FOR THE ORGANIZATION OF AGRICULTURAL MARKETS ) 17 JANUARY 1984 . THE APPLICANT DECLARED DURING THE PROCEEDINGS THAT IT DID NOT INTEND TO CONTEST THAT DECISION .
9 EXIMO CLAIMS THAT IN REGULATION NO 1669/82 THE COMMISSION FAILED TO EXTEND THE ADJUSTMENT OF REFUNDS TO ALL ADVANCE FIXING CERTIFICATES OBTAINED BEFORE THE NEW INTERVENTION PRICES WERE SET . SINCE THE REFUND FIXED IN ADVANCE IN THE FIRST LICENCE , INCREASED BY THE ADJUSTMENT , WOULD HAVE GIVEN A HIGHER AMOUNT ( 105 + 31.86 ECU = 136.86 ) THAN THE REFUND DUE UNDER THE NEW INTERVENTION PRICES ( 133 ECU ), EXIMO CONSIDERS THAT IT HAS SUFFERED DAMAGE AMOUNTING TO THE DIFFERENCE BETWEEN THOSE TWO AMOUNTS , THAT IS , 3.86 ECU PER 100 KG , PLUS THE FORFEITURE OF THE SECURITY AS A RESULT OF THE FACT THAT IT DID NOT USE THE FIRST EXPORT LICENCE , PLUS INTEREST .
10 THE APPLICANT BASES ITS CLAIM ON AN INTERFERENCE WITH ITS ECONOMIC FREEDOM OF ACTION , FRUSTRATION OF LEGITIMATE EXPECTATION , AND THE INCORRECT EXERCISE BY THE COMMISSION OF ITS DISCRETION IN THE MATTER ; IT ALLEGES MOREOVER A BREACH OF THE PRINCIPLE OF EQUAL TREATMENT , IN VIEW OF THE FACT THAT FOR THE SUBSEQUENT MILK YEAR THE COMMISSION DID NOT MAINTAIN THE WAITING PERIOD OF 14 DAYS .
11 THE APPLICANT JUSTIFIES ITS CONDUCT BY ITS DESIRE TO MITIGATE THE DAMAGE FOR WHICH IT CLAIMS COMPENSATION FROM THE COMMUNITY . IN THIS REGARD IT EXPLAINS THAT IF IT HAD EXPORTED AT THE RATE OF REFUND SET IN THE FIRST CERTIFICATE , THE DIFFERENCE BETWEEN THE LEVEL OF THAT REFUND AND THE REFUND SUBSEQUENTLY FIXED ACCORDING TO THE NEW INTERVENTION PRICES ( THAT IS , 133 - 105 ECU = 28 PER 100 KG ) WOULD HAVE BEEN MUCH GREATER THAN THE DIFFERENCE BETWEEN THE ADJUSTED REFUND AND THE NEW REFUND , THAT IS , THE AMOUNT OF 3.86 ECU PER 100 KG AS INDICATED ABOVE , PLUS THE EQUIVALENT OF THE SECURITY PAID .
12 THE APPLICANT REFERS TO THE GREAT UNCERTAINTY WHICH PREVAILED AT THE MATERIAL TIME , DURING THE PERIOD BETWEEN THE NORMAL END OF THE MILK YEAR ON 31 MARCH AND THE DELAY FIXING BY THE COUNCIL OF THE NEW INTERVENTION PRICE DURING MAY 1982 . IT STATES THAT IT WAS IN THAT CLIMATE OF UNCERTAINTY THAT IT APPLIED SUCCESSIVELY FOR TWO EXPORT LICENCES AND DECIDED NOT TO USE THE FIRST ONE , WITH THE INTENTION OF LIMITING THE DAMAGE CAUSED BY THE UNFORESEEABLE ACTION OF THE COUNCIL AND THE INTRODUCTION , ILLEGAL IN ITS VIEW , OF A 14-DAY WAITING PERIOD BY COMMISSION REGULATION NO 1669/82 , THE EFFECT OF WHICH WAS TO EXCLUDE THE APPLICANT FROM THE BENEFIT OF AN ADJUSTMENT WHICH IT MIGHT LEGITIMATELY HAVE EXPECTED .
13 IN THE FIRST INSTANCE THE COMMISSION RAISES AN OBJECTION OF INADMISSIBILITY . IT ARGUES THAT IF THE APPLICANT HAD USED THE FIRST EXPORT LICENCE , IT WOULD HAVE BEEN FACED WITH A DECISION OF THE NATIONAL INTERVENTION AGENCY WHICH IT COULD HAVE CHALLENGED BEFORE THE RELEVANT COURT . IN SUPPORT OF SUCH AN ACTION IT COULD HAVE PUT FORWARD THE ARGUMENTS ON WHICH IT HAS BASED ITS ACTION FOR DAMAGES . IN THOSE PROCEEDINGS THE NATIONAL COURT COULD , BY WAY OF A PRELIMINARY REFERENCE , HAVE RAISED ANY QUESTIONS OF COMMUNITY LAW WHICH MIGHT HAVE ARISEN . IN THOSE CIRCUMSTANCES , THE BRINGING OF AN ACTION FOR DAMAGES CONSTITUTES AN INTERFERENCE WITH THE DIVISION OF JURISDICTION BETWEEN THE NATIONAL COURTS AND THE COURT OF JUSTICE IN RELATION TO THE IMPLEMENTATION OF THE REGULATIONS CONCERNING THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS .
14 IT IS ONLY IN THE ALTERNATIVE THAT THE COMMISSION PUTS FORWARD A SUBSTANTIVE DEFENCE , ARGUING FIRST THAT IT ADOPTED THE MEASURES CHALLENGED BY THE APPLICANT IN THE CONTEXT OF THE DISCRETION IN ECONOMIC MATTERS CONFERRED UPON IT BY THE PROVISIONS CONCERNING THE COMMON ORGANIZATION OF THE MARKET , JUSTIFICATION FOR THE USE OF WHICH IS GIVEN IN THE PREAMBLE TO REGULATION NO 1669/82 . MOREOVER , THE COMMISSION POINTS OUT THAT THE DAMAGE ALLEGED TO HAVE BEEN SUFFERED BY THE APPLICANT RESULTS FROM PROVISIONS WHICH THE COMMISSION WAS FREE TO ADOPT IN THE CONTEXT OF THE RELEVANT RULES , AND THAT THEIR CONSEQUENCES ARE THEREFORE PART OF THE COMMERCIAL RISK ACCEPTED BY ANY TRADER . THE COMMISSION EMPHASIZES IN THIS REGARD THAT THE APPLICANT HAD BEEN DULY INFORMED BY THE COMMUNICATION OF 13 NOVEMBER 1981 , THAT IT KNEW PERFECTLY WELL , MOREOVER , THE RISKS IT RAN AT THE TIME AT WHICH IT APPLIED FOR AN EXPORT LICENCE WITH ADVANCE FIXING , AND THAT IT COULD HAVE ENSURED THAT IT WOULD RECEIVE THE NEW RATES OF REFUND BY APPLYING FOR AN EXPORT LICENCE WITHOUT ADVANCE FIXING . ADMISSIBILITY
15 THE OBJECTION OF INADMISSIBILITY RAISED BY THE COMMISSION MUST BE EVALUATED IN THE LIGHT OF THE SPECIAL OBJECT OF THIS ACTION . IT IS NO DOUBT TRUE , AS THE COMMISSION HAS POINTED OUT , THAT IF THE APPLICANT HAD USED ITS FIRST EXPORT LICENCE IT COULD HAVE CHALLENGED BEFORE THE NATIONAL COURTS THE AMOUNT OF REFUNDS OBTAINED BY VIRTUE OF THAT LICENCE , AT THE RATE OF 105 ECU PER 100 KG . IT MUST HOWEVER BE ADMITTED THAT THE OUTCOME OF SUCH PROCEEDINGS SEEMS PARTICULARLY UNCERTAIN IN VIEW OF THE FACT THAT THE APPLICANT COULD HAVE QUESTIONED THE CALCULATION OF THE REFUND ONLY ON THE BASIS OF A REGULATION ADOPTED AFTER THE EVENTS IN QUESTION , WHOSE PERIOD OF APPLICATION WAS SO DEFINED THAT THE APPLICANT COULD NOT TAKE ADVANTAGE OF THE ADJUSTMENT PROVIDED FOR .
16 BECAUSE OF THAT SPECIAL FACT , IT MAY THEREFORE BE CONSIDERED THAT THE APPLICANT WAS NOT IN A POSITION TO AVAIL ITSELF OF THE POSSIBLE REMEDIES BEFORE THE NATIONAL COURTS IN ORDER TO CHALLENGE A MEASURE OF THE COMMUNITY LEGISLATURE WHICH IT CONSIDERED TO BE ILLEGAL AND PREJUDICIAL TO IT .
17 SINCE IN THOSE CIRCUMSTANCES THE RISK OF INTERFERENCE WITH THE DIVISION OF JURISDICTION BETWEEN THE NATIONAL COURTS AND THE COURT OF JUSTICE MAY BE DISREGARDED , IT SEEMS APPROPRIATE NOT TO UPHOLD THE OBJECTION RAISED BY THE COMMISSION AND TO CONSIDER THE SUBSTANCE OF THE CASE . SUBSTANCE
18 IT IS THEREFORE NECESSARY TO CONSIDER WHETHER THE APPLICANT HAS SUCCEEDED IN SHOWING THAT THE COMMUNITY INCURRED LIABILITY BY REASON OF THE FACT THAT BY ARTICLE 1 OF REGULATION NO 1669/82 THE COMMISSION EXCLUDED THE ADJUSTMENT OF REFUNDS FIXED IN ADVANCE FOR THE PERIOD DURING WHICH EXIMO APPLIED FOR AND OBTAINED THE EXPORT LICENCE WHICH IT DID NOT USE . THE QUESTION WHETHER THE APPLICATION IS WELL FOUNDED MUST IN THIS REGARD BE EXAMINED FROM THE POINT OF VIEW OF THE REQUIREMENTS TO WHICH ACTIONS AGAINST LEGISLATIVE ACTS OF THE COMMUNITY ARE SUBJECT , ACCORDING TO THE ESTABLISHED CASE-LAW OF THE COURT ( SEE MOST RECENTLY THE JUDGMENT OF 17 . 12 . 1981 , JOINED CASES 197 TO 200 , 243 , 245 AND 247/80 ( LUDWIGSHAFENER WALZMUHLE ( 1981 ) ECR 3211 , PARAGRAPHS 17 TO 19 OF THE DECISION ).
19 THE APPLICATION SATISFIES NONE OF THOSE REQUIREMENTS . IT IS SUFFICIENT IN THIS RESPECT TO REFER TO TWO FACTS WHICH SEEM DECISIVE .
20 IT SHOULD BE POINTED OUT IN THE FIRST PLACE THAT THE PURPOSE OF THE COMMON ORGANIZATION OF THE MARKET IN MILK PRODUCTS IS NOT TO GUARANTEE THAT TRADERS MAY AT ALL TIMES EXPORT PRODUCTS ON THE MOST FAVOURABLE CONDITIONS TO EXTERNAL MARKETS . REGULATION NO 876/68 , AS SUBSEQUENTLY AMENDED , LEAVES THE COMMISSION REASONABLE DISCRETION TO DETERMINE THE CIRCUMSTANCES IN WHICH IT MAKES USE OF THE POSSIBILITY OF ADJUSTING REFUNDS FIXED IN ADVANCE IN CASE OF AN ALTERATION IN THE INTERVENTION PRICES .
21 IN THIS CASE , THE COMMISSION WAS JUSTIFIED IN SETTING THE CONDITIONS FOR THE APPLICATION OF THE ADJUSTMENT , FROM THE POINT OF VIEW OF TIME , IN SUCH A WAY AS TO AVOID THE RISK OF SPECULATION TO WHICH THE SITUATION WHICH PREVAILED DURING THE TRANSITION FROM THE 1981/82 MILK YEAR TO THE 1982/83 YEAR GAVE OR MIGHT IN ITS OPINION HAVE GIVEN RISE . THE APPLICANT HAS NOT BEEN ABLE TO INDICATE CIRCUMSTANCES FROM WHICH IT MIGHT BE INFERRED THAT THE COMMISSION COMMITTED A MANIFEST ERROR IN ITS ASSESSMENT OF THE ECONOMIC SITUATION AT THE TIME . THE UNCERTAINTY CREATED BY THE SUCCESSIVE DELAYS OF THE COUNCIL NO DOUBT CAUSED CONSIDERABLE INCONVENIENCE FOR TRADERS BUT AT THE SAME TIME WAS SUCH AS TO AROUSE FEARS OF SPECULATIVE DEALINGS . THE FACT THAT DURING THE TRANSITION TO THE FOLLOWING YEAR THE COMMISSION DID NOT CONSIDER IT NECESSARY TO HAVE RECOURSE TO A WAITING PERIOD SIMILAR TO THAT PROVIDED FOR IN REGULATION NO 1669/82 CANNOT BE CONSIDERED AS UNEQUAL TREATMENT , SINCE THE ECONOMIC SITUATIONS OF THE TWO PERIODS WERE NOT COMPARABLE .
22 SECONDLY , IT MUST BE OBSERVED , AS THE COURT HAS ALREADY POINTED OUT IN THE CONTEXT OF A DIFFERENT ORGANIZATION OF THE MARKETS , IN ITS JUDGMENT OF 28 OCTOBER 1982 ( JOINED CASES 292 AND 293/81 , SOCIETE JEAN LION ( 1982 ) ECR 3887 ), THAT THE ORGANIZATION OF THE MARKET IN MILK , WHOSE ESSENTIAL PURPOSE IS TO STABILIZE THE INTERNAL PRICES OF THE PRODUCTS IN QUESTION , RESPECTS THE FREEDOM OF TRADERS IN THEIR TRANSACTIONS WITH NON-MEMBER COUNTRIES AS WELL AS ON THE INTERNAL MARKET . ON THE OTHER HAND IT LEAVES THEM TO BEAR THE RELEVANT BUSINESS RISKS . IN PARTICULAR , THE ORGANIZATION OF THE MARKET OFFERS EXPORTERS THE CHOICE BETWEEN PAYMENT OF REFUNDS AT THE RATE IN FORCE ON THE DAY OF EXPORTATION AND THE ADVANCE FIXING SYSTEM , WHICH IS DESIGNED TO PROVIDE CERTAINTY , AT THE TIME AT WHICH THE CONTRACT IS CONCLUDED , AS TO THE AMOUNT OF REFUNDS TO BE RECEIVED .
23 IN THE FRAMEWORK SO DEFINED THE APPLICANT WAS FREE TO CHOOSE THE TIME AT WHICH TO APPLY FOR EXPORT LICENCES ; IT WAS ALSO FREE TO CHOOSE ACCORDING TO ITS BEST INTERESTS BETWEEN THE ADVANCE FIXING SYSTEM AND THAT PROVIDING FOR PAYMENT OF THE RATE OF REFUND APPLICABLE ON THE DATE OF EXPORTATION . IT WAS MOREOVER IN A POSITION TO ASSESS EXACTLY THE CONSEQUENCES OF NOT USING THE FIRST LICENCE , TAKING INTO ACCOUNT THE FACT THAT IF DELIVERY WAS NOT MADE THE SECURITY PAID COULD BE REFUNDED ONLY IN THE EVENT OF FORCE MAJEURE . THE USE OF THE ADVANCE FIXING METHOD , CHOSEN BY EXIMO , PERMITTED IT TO KNOW WITH CERTAINTY AT THE MOMENT OF ENTERING INTO THE EXPORT CONTRACT THE AMOUNT OF REFUND WHICH WOULD BE RECEIVED . IF , AS IS ALLEGED , ITS SALE PRICE WAS FIXED NOT ON THE BASIS OF THAT AMOUNT BUT IN THE EXPECTATION OF AN ADJUSTMENT OF WHICH NEITHER THE AMOUNT NOR THE TIME AT WHICH IT WOULD FALL DUE COULD BE ASCERTAINED AT THE TIME IN QUESTION , THE APPLICANT VOLUNTARILY ASSUMED A RISK WHOSE CONSEQUENCES CANNOT BE ATTRIBUTED TO THE COMMUNITY . THE FACT THAT IT EXPRESSLY MENTIONED THE POSSIBILITY OF AN ADJUSTMENT ON THE EXPORT LICENCE FORM ITSELF CANNOT AMOUNT TO A COMMITMENT ON THE PART OF THE COMMUNITY .
24 IT THUS APPEARS THAT THE APPLICANT HAS NOT BEEN ABLE TO ESTABLISH ANY ILLEGALITY ON THE PART OF THE COMMISSION OR THE EXISTENCE OF ANY DAMAGE ATTRIBUTABLE TO THE COMMUNITY .
25 THE APPLICATION MUST THEREFORE BE DISMISSED . AS A RESULT THE SUBSIDIARY CLAIM FOR THE PAYMENT OF INTEREST IS WITHOUT OBJECT .