1 THE PRESENT APPLICATIONS, LODGED ON 16 AND 18 MARCH 1971 RESPECTIVELY, SEEK TO OBTAIN RECOGNITION THAT THE APPLICANTS ARE ENTITLED TO COMPENSATION FOR THE DAMAGE THEY WERE CAUSED BY A WRONGFUL ACT OF THE COMMISSION IN THAT, UNDER ITS REGULATIONS NOS 1670/69 AND 1505/70, THE LATTER FIXED AT AN INADEQUATE LEVEL THE SUBSIDIES TO BE GRANTED BY THE FRENCH REPUBLIC ON IMPORTS OF COMMON WHEAT AND MESLIN FROM THIRD COUNTRIES AS A RESULT OF THE DEVALUATION OF THE FRENCH FRANC IN 1969 .
2 FURTHERMORE, THE APPLICANTS SEEK ANNULMENT OF THE IMPLIED OR EXPRESS DECISIONS BY WHICH THE DEFENDANT REJECTED THEIR REQUESTS, MADE BEFORE PROCEEDINGS WERE COMMENCED AND SUBMITTED BY LETTERS OF 15 NOVEMBER ( APPLICATION 11/71 ) AND 16 NOVEMBER 1970 ( APPLICATION 9/71 ), IN WHICH THEY SOUGHT RECOGNITION BY THE DEFENDANT OF THE ABOVE-MENTIONED ENTITLEMENT TO COMPENSATION . ADMISSIBILITY 1 . THE CLAIMS " FOR COMPENSATION "
3 THE DEFENDANT CONTESTS THE ADMISSIBILITY OF THE CLAIMS FOR COMPENSATION ON THE GROUND THAT, SINCE THE APPLICANTS CALCULATE THE DAMAGE AS THE EXACT DIFFERENCE BETWEEN THE SUBSIDIES RESULTING FROM THE CONTESTED REGULATIONS AND THOSE WHICH WOULD RESULT FROM REGULATIONS ADOPTED IN ACCORDANCE WITH THEIR WISHES, THESE APPLICATIONS CONTRIVE TO CIRCUMVENT THE INADMISSIBILITY WHICH, UNDER ARTICLE 173 OF THE EEC TREATY, PREVENTS AN APPLICATION FOR THE ANNULMENT OF THE SAID REGULATIONS .
4 THE ACTION FOR DAMAGES PROVIDED FOR UNDER ARTICLES 178 AND 215 OF THE TREATY WAS ESTABLISHED AS AN INDEPENDENT REMEDY; ITS SPECIFIC FUNCTION COMES WITHIN THE FRAMEWORK OF THE SYSTEM OF LEGAL REMEDIES AND IT IS SUBJECT TO THE CONDITIONS LAID DOWN FOR ITS EXERCISE IN THE LIGHT OF ITS SPECIFIC PURPOSE .
5 THE ACTION DIFFERS FROM AN APPLICATION FOR ANNULMENT IN THAT IT SEEKS COMPENSATION FOR DAMAGE CAUSED BY AN INSTITUTION IN THE EXERCISE OF ITS FUNCTIONS AND NOT ABOLITION OF A SPECIFIC MEASURE .
6 APPLICATIONS FOR COMPENSATION SEEK SOLELY THE RECOGNITION OF A RIGHT TO COMPENSATION AND, THEREFORE, TO A PAYMENT INTENDED TO AFFECT THE APPLICANTS ALONE .
7 THESE APPLICATIONS ARE THEREFORE ADMISSIBLE . 2 . THE APPLICATIONS " FOR ANNULMENT "
8 ACCORDING TO THE APPLICANTS, THESE APPLICATIONS ARE BASED ON ARTICLES 173 AND 175 OF THE EEC TREATY .
9 IN SPITE OF THE DEFECTIVE WORDING OF THEIR CONCLUSIONS, THE LATTER ARE, THEREFORE, FOR EITHER ANNULMENT OF THE DEFENDANT' S REFUSAL TO TO RECOGNIZE THE RIGHT TO COMPENSATION WHICH THE APPLICANTS CLAIM ON THE BASIS OF ARTICLES 178 AND 215 OF THE TREATY OR A DECLARATION BY THE COURT THAT THE DEFENDANT MUST ACKNOWLEDGE THE EXISTENCE OF THIS RIGHT .
10 CONSEQUENTLY, THESE APPLICATIONS ARE FOR A DECLARATION THAT THE COMMISSION IS OBLIGED TO MAKE COMPENSATION .
11 SINCE THE APPLICANTS THEREFORE HAVE NO INTEREST IN SUBMITTING THESE APPLICATIONS IN ADDITION TO THE CLAIMS FOR COMPENSATION, THE FORMER MUST BE DISMISSED AS INADMISSIBLE WITHOUT THE NEED FOR INQUIRY WHETHER THEY ARE INADMISSIBLE ALSO ON THE BASIS OF THE SUBMISSIONS MADE BY THE DEFENDANT . SUBSTANCE OF THE CLAIMS FOR COMPENSATION 1 . THE SUBMISSION BASED ON THE ILLEGALITY OF REGULATIONS NOS 1670/69 AND 1505/70
12 THE APPLICANTS STATE THAT THE DAMAGE WHICH THEY HAVE SUSTAINED IS THE RESULT OF AN ILLEGAL ACTION, ON THE PART OF THE COMMISSION, FOR WHICH IT HAS INCURRED LIABILITY, WHEREBY IT FIXED THE CONTESTED SUBSIDY FIRST AT FF 58.49 ( ANNEX TO REGULATION NO 1670/69, HEADING A, HEADING 10.01 A OF THE COMMON CUSTOMS TARIFF ) AND LATER AT FF 44.43 PER METRIC TON ( ANNEX TO REGULATION NO 1505/70, HEADING A, HEADING 10.01 A OF THE COMMON CUSTOMS TARIFF ).
13 SINCE LEGISLATIVE MEASURES INVOLVING MEASURES OF ECONOMIC POLICY ARE CONCERNED, THE COMMUNITY DOES NOT INCUR SUCH LIABILITY FOR DAMAGE SUFFERED BY INDIVIDUALS AS A CONSEQUENCE OF THOSE MEASURES BY VIRTUE OF THE PROVISIONS IN THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY UNLESS A SUFFICIENTLY FLAGRANT VIOLATION OF A SUPERIOR RULE OF LAW FOR THE PROTECTION OF THE INDIVIDUAL HAS OCCURRED .
14 FOR THAT REASON, THE COURT, IN THE PRESENT CASE, MUST FIRST CONSIDER WHETHER SUCH A VIOLATION HAS OCCURRED .
15 A - THE APPLICANTS CONTEND, FIRST, THAT, CONTRARY TO REGULATIONS NOS 1586/69 AND 1432/70 OF THE COUNCIL, ON THE BASIS OF WHICH THE CONTESTED REGULATIONS OF THE COMMISSION WERE ADOPTED, THE ABOVE AMOUNTS WERE CALCULATED SO AS TO COMPENSATE ONLY FOR THE FALL IN THE INTERVENTION PRICES TO BE PAID BY THE FRENCH REPUBLIC AND NOT FOR THE WHOLE OF THE INCREASE IN THE PRICE OF WHEAT IMPORTED FROM THIRD COUNTRIES OWING TO THE DEVALUATION OF THE FRENCH FRANC, WHEN ACCOUNT IS ALSO TAKEN OF THE THRESHOLD PRICE AND THE LEVY .
16 UNDER ARTICLE 3 OF REGULATION NO 1586/69, " FRANCE SHALL GRANT SUBSIDIES FOR IMPORTS FROM MEMBER STATES AND THIRD COUNTRIES ", " IN SO FAR AS IT IS NECESSARY TO COMPENSATE FOR THE EFFECTS OF THE MEASURES REFERRED TO IN ARTICLES 1 AND 2 " OF THE SAME REGULATION .
17 UNDER THE FIRST PARAGRAPH OF ARTICLE 1 ( 1 ) OF THAT REGULATION, " THE INTERVENTION OR PURCHASE PRICES TO BE PAID BY FRANCE IN ACCORDANCE WITH THE REGULATIONS ON THE COMMON ORGANIZATION OF THE AGRICULTURAL MARKETS, IN RESPECT OF INTERVENTION ON THE INTERNAL MARKET, SHALL BE REDUCED BY 11.11 PER CENT IN THE SECTOR CONCERNED UNTIL THE END OF THE 1969/1970 MARKETING YEAR ".
18 UNDER ARTICLE 1 ( 2 ) OF THE REGULATION, " THE COUNCIL ... SHALL DECIDE IN RESPECT OF EACH PRODUCT, BEFORE THE END OF THE 1969/1970 MARKETING YEAR, ON THE FINAL ADAPTATION TO THE COMMON PRICES AND AMOUNTS OF THE PRICES AND AMOUNTS REFERRED TO IN ARTICLES 1 AND 2 ".
19 ARTICLE 1 ( 1 ) OF REGULATION NO 1432/70 OF THE COUNCIL PROVIDES IN APPLICATION OF THAT PROVISION THAT " UNTIL THE END OF THE 1970/1971 MARKETING YEAR, THE FOLLOWING PRICES TO BE PAID BY FRANCE IN ACCORDANCE WITH REGULATIONS ON THE COMMON ORGANIZATION OF THE AGRICULTURAL MARKETS, BECAUSE OF INTERVENTIONS ON THE INTERNAL MARKET, SHALL BE REDUCED BY ... 8.44 PER CENT AS REGARDS THE INTERVENTION PRICE FOR COMMON WHEAT AND DURUM WHEAT ".
20 FINALLY, ARTICLE 2 OF REGULATION NO 1586/69 PROVIDES FOR THE REDUCTION OF THE " AMOUNTS TO BE PAID BY FRANCE, IN ACCORDANCE WITH THE REGULATIONS ON THE COMMON ORGANIZATION OF THE AGRICULTURAL MARKETS, BY REASON OF OTHER INTERVENTIONS ON THE INTERNAL MARKET WITHIN THE MEANING OF ARTICLES 5 AND 6 OF REGULATION NO 17/64/EEC OF THE COUNCIL OF 5 FEBRUARY 1964 ".
21 IT FOLLOWS FROM THESE PROVISIONS AS A WHOLE THAT THE MEASURES FOR WHOSE EFFECTS THE CONTESTED SUBSIDIES WERE INTENDED TO COMPENSATE WERE EXCLUSIVELY CONCERNED WITH THE AMOUNTS TO BE PAID BY THE FRENCH REPUBLIC IN THE CONTEXT OF THAT MEMBER STATE' S INTERVENTIONS ON THE INTERNAL MARKET, AND NOT WITH THE AMOUNTS WHICH, LIKE THE LEVY IMPOSED ON IMPORTS OF CEREALS, RELATE TO TRADE WITH THIRD COUNTRIES AND MUST BE PAID BY TRADERS .
22 NOTHING IN REGULATIONS NOS 1586/69 OR 1432/70 JUSTIFIES THE ASSUMPTION THAT THE COUNCIL INTENDED TO COMPENSATE FOR ALL THE EFFECTS OF THE DEVALUATION OF THE FRENCH FRANC ON THE PURCHASE PRICE, EXPRESSED IN THAT CURRENCY, OF CEREALS FROM THIRD COUNTRIES IMPORTED INTO FRANCE .
23 THE APPLICANTS MISTAKENLY ENDEAVOUR TO CONTEST THIS INTERPRETATION ON THE GROUND THAT ARTICLE 1 ( 1 ) OF REGULATION NO 1586/69 REFERS TO " THE INTERVENTION OR PURCHASE PRICES ".
24 THE TERM " PURCHASE PRICE " IS EXPLAINED BY THE FACT THAT CERTAIN PROVISIONS RELATING TO A COMMON ORGANIZATION OF THE MARKETS, SUCH AS ARTICLES 4 ( 1 ) AND 7 OF REGULATION NO 159/66 OF THE COUNCIL OF 25 OCTOBER 1966 ON FRUIT AND VEGETABLES ( JO NO 192, PP . 3288 AND 3289 ), USE IT TO INDICATE A PRICE HAVING A FUNCTION ANALOGOUS TO THAT OF THE " INTERVENTION PRICE " REFERRED TO, FOR EXAMPLE, IN ARTICLES 2, 4 AND 7 OF REGULATION NO 120/67 OF THE COUNCIL ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS, TO THE EFFECT THAT IN EACH CASE THESE ARE PRICES AT WHICH THE MEMBER STATES ARE OBLIGED OR AUTHORIZED TO BUY THE PRODUCTS OFFERED THEM THROUGH BODIES OR PERSONS APPOINTED FOR THAT PURPOSE .
25 IN THESE CIRCUMSTANCES, THE COMMISSION CORRECTLY APPLIED REGULATIONS NOS 1586/69 AND 1432/70 AND THE FIRST SUBMISSION CANNOT BE UPHELD .
26 B - THE APPLICANTS THEN ACCUSE THE COMMISSION OF HAVING INFRINGED ARTICLE 40 OF THE TREATY BY CREATING DISCRIMINATION BETWEEN FRENCH IMPORTERS AND MILLERS ON THE ONE HAND AND, ON THE OTHER, THEIR OPPOSITE NUMBERS IN THE OTHER MEMBER STATES, BECAUSE THE LATTER DID NOT HAVE TO BEAR ANY INCREASE IN THE PRICES OF IMPORTS FROM THIRD COUNTRIES AS THE RESULT OF THE DEVALUATION OF THE FRENCH FRANC .
27 THEY CLAIM THAT EVEN IF THE COMMISSION HAD COMPLIED WITH REGULATIONS NOS 1586/69 AND 1432/70 OF THE COUNCIL, THESE PROVISIONS WERE, FOR THAT REASON, VITIATED BY ILLEGALITY .
28 THE PREAMBLE TO REGULATION NO 1586/69, WHICH WAS THE BASIS FOR REGULATION NO 1432/70, REFERS, IN PARTICULAR, TO ARTICLE 103 OF THE TREATY IN THE FOLLOWING TERMS : " WHEREAS WITH EFFECT FROM 11 AUGUST 1969, THE RATIO BETWEEN THE PARITY OF FRANCE' S CURRENCY AND THE VALUE OF THE UNIT OF ACCOUNT WAS ALTERED BY 11.11 PER CENT BY DECISION OF THE FRENCH REPUBLIC ".
29 UNDER ARTICLE 103 OF THE TREATY, " MEMBER STATES SHALL REGARD THEIR CONJUNCTURAL POLICIES AS A MATTER OF COMMON CONCERN " AND " THEY SHALL CONSULT EACH OTHER AND THE COMMISSION ON THE MEASURES TO BE TAKEN IN THE LIGHT OF THE PREVAILING CIRCUMSTANCES ", WHILE " THE COUNCIL MAY ... DECIDE UPON THE MEASURES APPROPRIATE TO THE SITUATION ".
30 IT IS CLEAR FROM ARTICLE 107 THAT IT IS FOR EACH MEMBER STATE TO DECIDE UPON ANY ALTERATION IN THE RATE OF EXCHANGE OF ITS CURRENCY UNDER THE CONDITIONS LAID DOWN BY THAT PROVISION .
31 IF SUCH AN ALTERATION PUTS IMPORTERS AND EXPORTERS IN THE STATE CONCERNED IN A POSITION DIFFERENT FROM THAT OF THEIR OPPOSITE NUMBERS IN OTHER MEMBER STATES, THIS DISPARITY IS THE RESULT OF THE ACTUAL DECISION OF THAT MEMBER STATE AND NOT OF COMMUNITY INTERVENTION .
32 ALTHOUGH THE POWERS CONFERRED ON THE COMMUNITY INSTITUTIONS BY THE TREATY, IN PARTICULAR BY ARTICLE 103 ( 2 ) THEREOF, PURSUANT TO WHICH THE COUNCIL ADOPTED REGULATIONS NOS 1586/69 AND 1432/70, INCLUDE THE POWER TO ALLEVIATE, IN THE COMMON INTEREST, CERTAIN EFFECTS OF A DEVALUATION OR OF A REVALUATION, IT DOES NOT FOLLOW THAT THE COUNCIL MUST COMPENSATE FOR ALL THESE EFFECTS IN SO FAR AS THEY ARE ADVERSE TO THE IMPORTERS OR EXPORTERS OF THE MEMBER STATE CONCERNED .
33 IN FACT, BY EMPOWERING THE COUNCIL TO " DECIDE UPON THE MEASURES APPROPRIATE TO THE SITUATION ", WITHOUT OBLIGING IT TO DO SO, ARTICLE 103 CONFERRED ON THAT INSTITUTION A WIDE POWER OF DISCRETION TO BE EXERCISED IN ACCORDANCE WITH THE " COMMON INTEREST " AND NOT WITH THE INDIVIDUAL INTERESTS OF A SPECIFIC GROUP OF TRADERS .
34 THE APPLICANTS HAVE NOT PROVED OR OFFERED EVIDENCE THAT IN THIS CASE THE COMMON INTEREST REQUIRED THAT THERE SHOULD BE FULL COMPENSATION FOR THE INCREASE IN THE PRICE OF CEREALS FROM THIRD COUNTRIES IMPORTED INTO FRANCE AS A RESULT OF THE DEVALUATION OF THE FRENCH FRANC .
35 IT FOLLOWS FROM ALL THE FOREGOING CONSIDERATIONS THAT THE COMPLAINT THAT ARTICLE 40 HAS BEEN INFRINGED MUST BE DISMISSED .
36 C - FINALLY, THE APPLICANTS CLAIM TO BE THE VICTIMS OF FURTHER DISCRIMINATION ON THE GROUND THAT REGULATION NO 1014/71 OF THE COMMISSION OF 17 MAY 1971 ADOPTED AS A RESULT OF THE TEMPORARY WIDENING OF THE MARGINS OF FLUCTUATION FOR THE CURRENCIES OF THE FEDERAL REPUBLIC OF GERMANY AND OF THE KINGDOM OF THE NETHERLANDS, FIXED THE COMPENSATORY AMOUNTS WHICH THOSE STATES WERE AUTHORIZED TO GRANT ON EXPORTS TO THIRD COUNTRIES AT A LEVEL WHICH TOOK INTO ACCOUNT ALL THE EFFECTS OF THE SAID WIDENING ON EXPORT PRICES .
37 THEY CLAIM THAT, CONSEQUENTLY, THE COMMISSION TREATED GERMAN AND NETHERLANDS EXPORTERS MORE FAVOURABLY THAN FRENCH IMPORTERS WITHOUT GOOD REASON .
38 THIS SUBMISSION MAY ALSO BE UNDERSTOOD AS A CRITICISM OF THE FACT THAT, IN ADOPTING REGULATION NO 1014/71, THE COMMISSION DID NOT RECONSIDER REGULATIONS NOS 1670/69 AND 1505/70, THE INADEQUACY OF WHICH WAS RECOGNIZED BY IMPLICATION .
39 THE VALIDITY OF A REGULATION CANNOT BE CALLED IN QUESTION BECAUSE OF EVENTS WHICH TOOK PLACE AT A LATER DATE .
40 MOREOVER, THE REGULATIONS WHICH FORM THE BASIS OF THIS CASE REFER TO A SITUATION DIFFERENT FROM THAT TO WHICH THOSE REGULATIONS CONCERNING THE GERMAN AND NETHERLANDS CURRENCY FLUCTUATIONS REFER .
41 THE ECONOMIC SITUATIONS RESULTING FROM, ON THE ONE HAND, THE DEVALUATION OF THE FRENCH FRANC AND, ON THE OTHER, THE TEMPORARY WIDENING OF THE MARGINS OF FLUCTUATION FOR THE GERMAN AND NETHERLANDS CURRENCIES ARE SUFFICIENTLY DIFFERENT TO RULE OUT THE ALLEGED DISCRIMINATION .
42 FURTHERMORE, SINCE THE MAIN OBJECTIVE OF THE COMMON AGRICULTURAL POLICY IS, ACCORDING TO ARTICLE 39 ( 1 ) ( B ) OF THE TREATY, " TO ENSURE A FAIR STANDARD OF LIVING FOR THE AGRICULTURAL COMMUNITY, IN PARTICULAR BY INCREASING THE INDIVIDUAL EARNINGS OF PERSONS ENGAGED IN AGRICULTURE " THERE MAY BE GREATER JUSTIFICATION FOR SUPPORTING THE EXPORTATION OF AGRICULTURAL PRODUCTS TO THIRD COUNTRIES RATHER THAN THE IMPORTATION OF THOSE PRODUCTS .
43 THE COMPLAINT OF DISCRIMINATION MUST THEREFORE BE DISMISSED .
44 D - IT FOLLOWS FROM ALL THE FOREGOING CONSIDERATIONS THAT THE CONTESTED PROVISIONS OF REGULATIONS NOS 1670/69 AND 1505/70 ARE NOT VITIATED BY ILLEGALITY AND IT WOULD, THEREFORE, SERVE NO PURPOSE TO EXAMINE THE OTHER CONDITIONS GIVING RISE TO LIABILITY FOR A WRONGFUL ACT . 2 . THE SUBMISSION BASED ON LIABILITY IN THE ABSENCE OF ILLEGALITY .
45 THE APPLICANTS CLAIM THAT THE COMMUNITY INCURS LIABILITY EVEN IN THE ABSENCE OF ILLEGALITY BECAUSE THE APPLICANTS HAVE SUFFERED " UNUSUAL AND SPECIAL DAMAGE " OWING TO THE FACT THAT THEY WERE TREATED LESS FAVOURABLY THAN, FIRST, IMPORTERS FROM MEMBER STATES OTHER THAN FRANCE AND, SECONDLY, THAN GERMAN AND NETHERLANDS EXPORTERS .
46 ANY LIABILITY FOR A VALID LEGISLATIVE MEASURE IS INCONCEIVABLE IN A SITUATION LIKE THAT IN THE PRESENT CASE SINCE THE MEASURES ADOPTED BY THE COMMISSION WERE ONLY INTENDED TO ALLEVIATE, IN THE GENERAL ECONOMIC INTEREST, THE CONSEQUENCES WHICH RESULTED IN PARTICULAR FOR ALL FRENCH IMPORTERS FROM THE NATIONAL DECISION TO DEVALUE THE FRANC .
47 CONSEQUENTLY, THE SUBMISSION IS UNFOUNDED .