1 THESE SIX APPLICATIONS ASK THAT THE COMMUNITY BE ORDERED TO PAY VARIOUS SUMS BY WAY OF COMPENSATION FOR THE DAMAGE CAUSED TO THE APPLICANTS BY THE APPLICATION OF THE NEW METHOD OF CALCULATION OF COMPENSATORY AMOUNTS INTRODUCED BY REGULATION NO 1112/73 OF THE COUNCIL ( OJ 1973, L 114, P . 4 ) IN RESPECT OF EXPORTS FOR WHICH EXPORT CERTIFICATES HAD PREVIOUSLY BEEN GRANTED .
2 EVEN THOUGH THE DAMAGE ARISING FROM THE APPLICATION OF THIS NEW METHOD WAS LESSENED BY THE TRANSITIONAL MEASURES ADOPTED BY THE COMMISSION IN ITS REGULATION NO 2042/73 ( OJ 1973, NO 207, P . 34 ) THESE ARE CLAIMED NOT TO HAVE BEEN SUFFICIENTLY WHOLLY TO COUNTER ITS EFFECT . ADMISSIBILITY
3 WITHOUT EXPRESSLY RAISING AN OBJECTION OF INADMISSIBILITY THE COMMISSION CRITICIZES THE APPLICATIONS IN CASES 95 TO 98/74 IN RELATION TO ARTICLE 37 ( 4 ) OF THE RULES OF PROCEDURE IN THAT THERE ARE NOT ANNEXED THERETO THE CONTRACTS AND CERTIFICATES RELATING TO THE EXPORTS ON WHICH THE APPLICANTS RELY IN ORDER TO ESTABLISH THAT THEY BECAME ENTITLED TO HAVE THE COMPENSATORY AMOUNTS CALCULATED BY ONE PARTICULAR METHOD OR THAT THEY ACTED IN EXPECTATION OF THIS METHOD'S CONTINUING TO BE APPLIED .
4 THE ALLEGED IRREGULARITIES WERE NOT ONLY SUCH AS TO EMBARRASS THE DEFENDANTS IN THE PREPARATION OF THEIR DEFENCE BUT WERE MOREOVER ONLY RECTIFIED, WITHOUT ANY VALID EXPLANATION, AFTER THE WRITTEN PROCEDURE HAD BEEN CLOSED AND SOME DAYS BEFORE THE ORAL PROCEDURE WAS OPENED .
5 WHILST IT IS NOT POSSIBLE AT THE PRESENT STAGE OF THE PROCEEDINGS FOR THE COURT TO ARRIVE AT A DECISION ON THE AMOUNT OF THE DAMAGE IT CAN NEVERTHELESS DEAL WITH THE PRELIMINARY MATTER OF POSSIBLE LIABILITY ON THE PART OF THE COMMUNITY .
6 IN CASES 95 TO 97/74 AND 100/75, AND PARTLY IN CASE 98/74, THE EXPORT CERTIFICATES HAD BEEN OBTAINED BY THIRD PARTIES BEFORE THE CHANGE IN THE SYSTEM OF COMPENSATORY AMOUNTS OR BEFORE THE DATE OF ITS APPLICATION BUT THE EXTRACTS OF THE SAID CERTIFICATES WERE ONLY FORWARDED TO THE APPLICANTS AT A LATER DATE .
7 THE COUNCIL RAISES A SPECIFIC OBJECTION OF INADMISSIBILITY AGAINST THESE APPLICATIONS ON THE GROUND THAT THE RIGHT TO COMPENSATION UNDER ARTICLE 215 IS NOT TRANSFERABLE SO THAT THE TITLE ON WHICH THE APPLICANTS RELY IS WHOLLY DEFECTIVE .
8 THE APPLICANTS IN CASES 95 TO 97/74 AND 100/75 REFER TO THE CONTRACTS WHICH THEY ENTERED INTO BEFORE THE CHANGE OCCURRED OR BEFORE IT TOOK EFFECT AND UNDER THE PROVISIONS OF WHICH THEY WERE OBLIGED TO ACCEPT THE OBLIGATIONS ARISING FROM THE CERTIFICATES .
9 SINCE COMMUNITY LAW ALLOWS THE TRANSFER OF EXTRACTS OF CERTIFICATES, THE APPLICANTS MUST BE ENABLED TO SHOW THAT THEY COME WITHIN THE CATEGORY OF PARTIES WHO HAVE ACQUIRED RIGHTS AND WHOSE EXPECTATION DESERVES PROTECTION .
10 WHILST THE FACT THAT THE APPLICANTS RECEIVED CERTAIN EXTRACTS BY WAY OF TRANSFER FROM THIRD PARTIES MAY BE OF IMPORTANCE IN RELATION TO THE SUBSTANCE, IT CANNOT AFFECT THE ADMISSIBILITY OF THE APPLICATION . SUBSTANCE
11 IN THE FIRST PLACE THE APPLICANTS POINT OUT THAT THE APPLICATION OF THE NEW METHOD OF CALCULATION OF COMPENSATORY AMOUNTS TO EXPORTS WHICH THEY HAD EARLIER COMMITTED THEMSELVES TO UNDERTAKE ADVERSELY AFFECTED THE RIGHTS WHICH THEY ACQUIRED BY THE GRANT OF EXPORT CERTIFICATES COMPRISING ADVANCE FIXING OF THE AMOUNT OF THE EXPORT REFUND .
12 WHILST ADMITTING THAT COMPENSATORY AMOUNTS CANNOT BE FIXED IN ADVANCE THEY CONSIDER THAT THE METHOD OF CALCULATION THEREOF IN FORCE AT THE TIME OF COMPLETION OF THE EXPORT CERTIFICATES MUST CONTINUE THROUGHOUT THE PERIOD OF VALIDITY OF SUCH CERTIFICATES IN RESPECT OF ALL EXPORTS EFFECTED ON THE BASIS THEREOF .
13 NO PROVISION IN REGULATION NO 974/71 CONFERS ON EXPORTERS A RIGHT TO THE CONTINUANCE OF A PARTICULAR METHOD OF CALCULATION OF COMPENSATORY AMOUNTS .
14 UNDER ARTICLE 1 OF THAT REGULATION THE RIGHT TO BENEFIT FROM A COMPENSATORY AMOUNT OR THE OBLIGATION TO PAY IT ONLY ARISE BY THE EXPORT'S TAKING PLACE AND ONLY AS FROM THE TIME WHEN IT TAKES PLACE .
15 ANY SUBMISSION BASED ON A VIOLATION OF VESTED RIGHTS MUST THEREFORE BE REJECTED .
16 THE APPLICANTS FURTHER ARGUE THAT THE APPLICATION OF THE NEW METHOD OF CALCULATION OF COMPENSATORY AMOUNTS AFFECTED THE CONFIDENCE WHICH THEY WERE ENTITLED TO PUT IN THE CONTINUANCE OF THE FORMER SYSTEM .
17 IT IS APPROPRIATE IN THE FIRST PLACE TO RECALL THE PURPOSE AND THE DEVELOPMENT OF THE SYSTEM OF COMPENSATORY AMOUNTS .
18 THE SYSTEM OF THE COMMUNITY UNIT OF ACCOUNT EXPRESSED BY REFERENCE TO A CERTAIN WEIGHT OF GOLD ORIGINALLY ALLOWED THE FIXING OF SINGLE PRICES FOR THE WHOLE COMMUNITY, THANKS TO THE FIXED RELATIONSHIPS BETWEEN THE COMMUNITY CURRENCIES .
19 THE FINANCIAL OCCURRENCES IN 1971, CHARACTERIZED BY THE DE FACTO ABANDONMENT OF THE INTERNATIONAL RULES RELATING TO MARGINS OF FLUCTUATION OF RATES OF EXCHANGE, LED THE COUNCIL TO INSTITUTE A SYSTEM WHICH ALLOWED THE MEMBER STATES IF NECESSARY TO LEVY COMPENSATORY AMOUNTS ON IMPORTS AND TO GRANT THEM ON EXPORTS, BOTH IN TRADE WITH THE OTHER MEMBER STATES AND IN TRADE WITH THIRD COUNTRIES .
20 THIS SYSTEM WAS INTENDED TO NEUTRALIZE THE EFFECT OF THE MONETARY MEASURES ON THE PRICES OF CERTAIN BASIC AGRICULTURAL PRODUCTS IN RESPECT OF WHICH INTERVENTION PRICES HAD BEEN LAID DOWN AND THUS TO AVOID A DIVERSION OF TRADE .
21 THE PROVISIONAL NATURE OF THE SYSTEM OF COMPENSATORY AMOUNTS IS EMPHASIZED BY REGULATION NO 974/71 OF THE COUNCIL, ARTICLE 8 ( 2 ) OF WHICH PROVIDES THAT IT 'SHALL CEASE TO BE APPLICABLE AS SOON AS ALL THE MEMBER STATES CONCERNED AGAIN APPLY THE INTERNATIONAL RULES ON MARGINS OF EXCHANGE RATE FLUCTUATION ...'.
22 CONTRARY TO WHAT IS ARGUED BY THE APPLICANTS, THIS PROVISION, WHICH HAS THE PURPOSE OF SETTING AN AUTOMATIC FINAL DATE TO THE REGULATION, LEAVES UNAFFECTED THE DUTY OF THE COMMUNITY INSTITUTIONS TO MODIFY THE SYSTEM WHENEVER THIS APPEARS NECESSARY IN ORDER TO ENSURE THAT IT PERFORMS ITS CORRECTIVE FUNCTION .
23 WERE IT OTHERWISE, THE APPLICATION OF THE SYSTEM OF COMPENSATORY AMOUNTS MIGHT ITSELF BECOME A SOURCE OF DISTORTION .
24 INDEED AFTER THE SYSTEM, HAD BEEN MODIFIED ON SEVERAL OCCASIONS AND HAD IN FACT BECOME PART OF NORMAL PRACTICE IN ALL THE ORIGINAL MEMBER STATES, THE COUNCIL, BY REGULATION NO 2746/72, MADE IT COMPULSORY IN LAW AND AS REGARDS THE FINANCING THEREOF MADE IT PART OF THE COMMON AGRICULTURAL POLICY .
25 NOTWITHSTANDING THE CHANGES, THE METHOD OF CALCULATION REMAINED THE SAME IN 1971 AND 1972 AND IS THE RESULT OF THE APPLICATION TO THE PRICES OF THE AGRICULTURAL PRODUCTS IN QUESTION OF A PERCENTAGE REPRESENTING THE DIFFERENCE IN TERMS OF THE UNITED STATES DOLLAR BETWEEN THE OFFICIAL PARITY OF THE NATIONAL CURRENCY AND ITS TRUE PARITY .
26 IN THIS INDIRECT WAY THE COUNCIL SOUGHT TO TAKE INTO ACCOUNT THE FACT THAT A SIGNIFICANT PROPORTION OF THE DEALINGS WAS EXPRESSED IN DOLLARS .
27 FOR AS LONG AS THE RATE OF EXCHANGE OF THE UNITED STATES DOLLAR WAS TAKEN INTO CONSIDERATION FOR THE PURPOSE OF CALCULATING COMPENSATORY AMOUNTS THE SYSTEM IN FACT ENSURED A MEASURE OF PROTECTION AGAINST THE RISK OF DEVALUATION OF THE DOLLAR WHERE THE CONTRACT WAS EXPRESSED IN THAT CURRENCY .
28 SINCE NOTWITHSTANDING THE DEVALUATION OF THE UNITED STATES DOLLAR IN FEBRUARY 1973, THE PRESSURE ON THAT CURRENCY IN THE EARLY PART OF THE YEAR CONTINUED, THE COUNCIL DECIDED IN THE COURSE OF ITS MEETING ON 11 AND 12 MARCH 1973 THAT ON THE ONE HAND THE CENTRAL BANKS OF THE MEMBER STATES SHOULD CEASE TO SUPPORT THE DOLLAR AND ON THE OTHER HAND THAT THE CURRENCIES OF SIX OF THE MEMBER STATES SHOULD FLOAT VIS-A-VIS OTHER CURRENCIES WHILST KEEPING TO CERTAIN MARGINS OF FLUCTUATION AS BETWEEN THEMSELVES .
29 CONSEQUENTLY, FOLLOWING UPON THE COUNCIL'S REQUEST OF 12 MARCH 1973, THE COMMISSION ON 21 MARCH 1973 PROPOSED TO THE COUNCIL THAT REFERENCE TO THE DOLLAR SHOULD BE ABANDONED AND REPLACED AS REGARDS THE SIX MEMBER STATES WHOSE CURRENCIES WERE FLOATING TOGETHER, BY REFERENCE TO CENTRAL RATES AND, IN RESPECT OF THE THREE OTHER MEMBER STATES, BY REFERENCE TO REPRESENTATIVE RATES ESTABLISHED ON THE BASIS OF THE RATES FOUND TO EXIST ON THE MARKET DURING A GIVEN REFERENCE PERIOD .
30 THE POSSIBILITY OF THE ADOPTION BY THE COUNCIL OF THE COMMISSION'S PROPOSAL OF 21 MARCH, WHICH HAD BEEN EXPECTED SINCE 12 MARCH AND IMMEDIATELY BECAME KNOWN IN INTERESTED QUARTERS, BOTH THROUGH THE PRESS AND THROUGH THEIR REGULAR CONTACTS WITH THE COMMISSION, BECAME MORE LIKELY DAY BY DAY, ALL THE MORE SO SINCE THE COUNCIL'S DECISION OF 12 MARCH INVOLVED A DAILY CHANGE IN THE RATES OF EXCHANGE AS BETWEEN THE CURRENCIES OF THE MEMBER STATES AND THE DOLLAR .
31 THIS PROPOSAL WAS ADOPTED BY THE COUNCIL IN ITS REGULATION NO 1112/73 OF 30 APRIL 1973, WHICH WAS PUBLISHED ON THE SAME DAY AND ENTERED INTO FORCE ON 1 MAY 1973 .
32 UNDER THE PROVISIONS OF ARTICLE 3 OF REGULATION NO 1112/73 THE REGULATION APPLIED 'FROM THE DATE ON WHICH THE DETAILED RULES REQUIRED FOR ITS APPLICATION ... ENTER INTO FORCE '.
33 HAVING ADOPTED THE IMPLEMENTING REGULATIONS ON 30 MAY 1973 THE COMMISSION DID NOT PUBLISH THEM IN THE OFFICIAL JOURNAL UNTIL 4 JUNE 1973, ON WHICH DATE THEY ENTERED INTO FORCE .
34 IN ORDER TO EXAMINE IN THIS CONTEXT THE TRANSACTIONS INVOLVED IN THE DIFFERENT APPLICATIONS IT IS NECESSARY TO MAKE A DISTINCTION ACCORDING TO WHETHER THE EXPORT CONTRACTS WERE ENTERED INTO BEFORE OR AFTER THE PUBLICATION OF REGULATION NO 1112/73 . CONTRACTS ENTERED INTO AFTER 30 APRIL 1973
35 THOSE APPLICANTS WHO ENTERED INTO EXPORT CONTRACTS AFTER 30 APRIL 1973 COULD NOT HAVE BEEN UNAWARE OF REGULATION NO 1112/73 AND THE NEW METHOD OF CALCULATING COMPENSATORY AMOUNTS .
36 NOTHING IN THAT REGULATION JUSTIFIES THE ASSUMPTION THAT IN THE IMPLEMENTING PROCEDURES THERE WOULD BE ANY TRANSITIONAL MEASURE WHATSOEVER IN RESPECT OF CONTRACTS ENTERED INTO BEFORE THE DATE OF APPLICATION OF THE NEW METHOD OF CALCULATING THE AMOUNTS .
37 SINCE THE APPLICANTS WERE FREE TO TAKE ALL SUCH PRECAUTIONS AS THEY THOUGHT FIT IN DRAWING UP THEIR SALE CONTRACTS THEY CANNOT CLAIM TO HAVE COMMITTED THEMSELVES IN RELIANCE ON THE FORMER METHOD OF CALCULATION CONTINUING IN RESPECT OF THE EXPORTS CONTEMPLATED . THE CONTRACTS ENTERED INTO BEFORE 30 APRIL 1973 THE CONTRACT OF 23 MARCH 1973
38 THE APPLICANT IN CASE 15/75 CONCLUDED AN EXPORT CONTRACT ON 23 MARCH 1973, THE VERY DAY ON WHICH THE COUNCIL RECEIVED THE COMMISSION'S PROPOSAL .
39 THE CONTRACT WAS CONCLUDED WITH THE POLISH UNDERTAKING ROLLIMPEX FOR THE SALE TO THE LATTER OF 35 000 METRIC TONS OF EUROPEAN BARLEY AT A PRICE EXPRESSED IN DOLLARS .
40 THE APPLICANT EXPLAINS THAT IT COULD HAVE CARRIED OUT THE SALE BY SUPPLYING EITHER BARLEY PRODUCED IN THE COMMUNITY OR BARLEY PRODUCED IN EUROPEAN STATES WHICH WERE NOT MEMBERS OF THE COMMUNITY .
41 IN THE LATTER CASE IT WOULD HAVE PURCHASED THE BARLEY FOR DOLLARS WHILST IN THE FIRST CASE IT WOULD HAVE PURCHASED AT THE COMMON PRICE BUT WOULD ULTIMATELY HAVE BENEFITED FROM AN EXPORT REFUND AND A COMPENSATORY AMOUNT .
42 SINCE THE APPLICANT RESERVED FOR ITSELF IN THE CONTRACT AN OPTION AS TO THE SOURCE FROM WHICH THE BARLEY WAS TO COME, IT CANNOT ARGUE THAT IT ENTERED INTO AN OBLIGATION IN RELIANCE ON THE EXISTENCE OF A COMPENSATORY AMOUNT, STILL LESS ON THE CONTINUANCE IN FORCE OF THE FORMER METHOD OF CALCULATION OF THE LATTER .
43 IN OPTING ON 30 MARCH 1973 IN FAVOUR OF THE EXPORT OF COMMUNITY BARLEY, BY APPLYING FOR A CERTIFICATE OF EXCEPTIONAL DURATION WITH ADVANCE FIXING OF THE AMOUNT OF THE REFUND, THE APPLICANT, AS A PRUDENT EXPORTER MADE A COMMERCIAL CHOICE BASED ON THE STATE OF THE MARKET WITH ALL THE RISKS INHERENT IN SUCH A CHOICE .
44 AMONGST THE RISKS WHICH COULD BE FORESEEN ON 30 MARCH OR AT THE LATEST ON 20 APRIL, THIS BEING THE DATE OF THE ISSUE OF THE CERTIFICATE AND A DATE ON WHICH IT COULD STILL HAVE WITHDRAWN ITS APPLICATION, THERE WAS THE PROBABILITY OF A CHANGE IN THE METHOD OF CALCULATING THE COMPENSATORY AMOUNTS .
45 EVEN IF IT WAS NOT CERTAIN THAT THE CHANGE SUGGESTED BY THE COMMISSION WOULD BE ADOPTED BY THE COUNCIL, IT OUGHT ON THOSE DATES AT LEAST TO HAVE BEEN CLEAR TO AN EXPERIENCED TRADER THAT THE INTRODUCTION OF A NEW METHOD OF CALCULATION WAS IMMINENT .
46 THE APPLICANT CANNOT THEREFORE INVOKE A LEGITIMATE EXPECTATION OF THE CONTINUANCE OF THE FORMER METHOD OF CALCULATION . THE CONTRACTS OF 28 AND 29 MARCH
47 BY CONTRACT DATED 28 MARCH 1973 CONCLUDED IN MOSCOW BETWEEN A SOVIET IMPORTER AND A FRENCH EXPORTER, THE GROUPEMENT D'INTERETS ECONOMIQUES FRANCE CEREALES, THE LATTER UNDERTOOK TO SELL 300 000 METRIC TONS, INCREASED ON THE FOLLOWING DAY TO 500 000 METRIC TONS, OF FRENCH BARLEY AT A PRICE EXPRESSED IN DOLLARS .
48 THE APPLICANTS IN CASES 95 TO 98/74 EXPLAINED THAT THIS CONTRACT WAS NEGOTIATED BY THE FRENCH GOVERNMENT AS A 'PRESTIGE CONTRACT' LEAVING THE EXPORTER WITH ONLY A REDUCED PROFIT MARGIN BUT HAVING THE PURPOSE OF OPENING A NEW MARKET TO THE FRENCH CEREAL TRADE .
49 AFTER THE CONCLUSION OF THE CONTRACT THE FRENCH GOVERNMENT INVITED SEVERAL FRENCH MERCHANTS TO EXECUTE THE CONTRACT AND, ACCORDING TO THE APPLICANT IN CASE 98/74, IMPOSED IT ON THE APPLICANTS .
50 THE APPLICANTS AND SEVERAL OTHER MERCHANTS SET UP IN APRIL 1973 A 'COMMON ACCOUNT' WITH A VIEW TO EXECUTING THE SAME .
51 NEVERTHELESS, THE DOCUMENT WHICH WAS PRODUCED IN THIS CONNEXION IS NOT DATED AND, MOREOVER, THE APPLICANT IN CASE 96/74 IS NOT INCLUDED THEREIN .
52 IN ANY EVENT, BY 29 MARCH THE COMMISSION'S PROPOSAL HAD ALREADY BEEN DISCUSSED BY THE COUNCIL AND THE CHANGE IN THE BASIC SYSTEM OF CALCULATION OF COMPENSATORY AMOUNTS WAS FORESEEABLE, TAKING INTO ACCOUNT THE CIRCUMSTANCES ALREADY SET FORTH .
53 ACCORDINGLY, IT CANNOT BE ARGUED THAT THE FRENCH AGENT WHO AT THAT DATE NEGOTIATED THE CONTRACT OF 29 MARCH 1973 DID SO IN RELIANCE ON THE CONTINUANCE OF THE FORMER METHOD OF CALCULATION OF COMPENSATORY AMOUNTS .
54 THE FACT THAT THE CONTRACT WAS CONCLUDED ON 29 MARCH 1973 IN RELATION TO A QUANTITY OF 500 000 METRIC TONS, ON A LONG TERM BASIS AND EXPRESSED IN DOLLARS, AT A TIME WHEN THE CENTRAL BANKS OF THE MEMBER STATES WERE NO LONGER OBLIGED TO INTERVENE IN ORDER TO SUPPORT THAT CURRENCY IN FACT INVOLVED A CONSIDERABLE COMMERCIAL RISK .
55 IN VIEW OF ALL THESE FACTORS IT CANNOT BE ARGUED THAT THE APPLICANTS COULD AT A TIME WHEN THEY ENTERED INTO THE BARGAIN HAVE HAD A LEGITIMATE EXPECTATION OF THE CONTINUANCE OF THE FORMER SYSTEM .
56 IN THESE CIRCUMSTANCES THE APPLICATIONS MUST BE REJECTED .