1 THE APPLICATIONS , LODGED ON 31 JULY 1975 , SEEK A DECLARATION THAT THE EUROPEAN ECONOMIC COMMUNITY IS LIABLE FOR THE DAMAGE WHICH THE APPLICANTS ALLEGE THAT THEY HAVE SUFFERED BECAUSE OF THE ABOLITION BY REGULATION NO 189/72 OF THE COMMISSION OF 26 JANUARY 1972 ( JO L 24 , 1972 , P . 25 ) OF THE COMPENSATORY AMOUNTS APPLICABLE TO OILS AND FATS , ESPECIALLY TO COLZA SEED AND OILS OBTAINED FROM THAT SEED AND BECAUSE OF THE MALFUNCTIONING OF THE COMMON ORGANIZATION OF THE MARKET IN OILS AND FATS WHICH WAS THE RESULT THEREOF .
2 THE APPLICATIONS CLAIM IN CONSEQUENCE THAT THE COURT SHOULD ORDER THE COMMUNITY TO PAY THE SUMS SPECIFIED IN THE APPLICATIONS .
3 THE APPLICANTS , WHICH ARE UNDERTAKINGS THE OBJECTS OF WHICH ARE INTER ALIA , THE PURCHASE , SALE AND MILLING OF COLZA SEED , STATE THAT THE COMMON ORGANIZATION OF THE MARKET IN OILS AND FATS ESTABLISHED BY REGULATION NO 136/66 OF THE COUNCIL OF 22 SEPTEMBER 1966 ( OJ ENGLISH SPECIAL EDITION 1965-1966 , P . 221 ) PROVIDES , IN ADDITION TO A TARGET PRICE AND AN INTERVENTION PRICE FIXED IN ACCORDANCE WITH THE USUAL PROCEDURES , FOR PRODUCTION SUBSIDIES WHICH ARE PAID TO PROCESSERS WHEN THE TARGET PRICE APPLICABLE TO A TYPE OF SEED IS HIGHER THAN THE WORLD MARKET PRICE OF THAT PRODUCT .
4 THEY STATE THAT THAT SUBSIDY IS EQUAL TO THE DIFFERENCE BETWEEN THESE TWO PRICES EXPRESSED IN UNITS OF ACCOUNT AND THE WORLD MARKET PRICE TO BE TAKEN INTO CONSIDERATION IS DETERMINED PERIODICALLY BY THE COMMISSION IN ACCORDANCE WITH THE PROCEDURE LAID DOWN BY COMMUNITY RULES .
5 THE APPLICANTS FURTHER STATE THAT THUS PRICE FORMATION IN THE COMMON MARKET OCCURS AS IT DOES IN THE WORLD MARKET AND COMMUNITY PRODUCTION IS SUPPORTED BY SUBSIDIES WHICH SEEK TO ENSURE FOR IT REMUNERATION RELATED TO THE TARGET PRICE .
6 THE ESTABLISHMENT OF THE SYSTEM KNOWN AS MONETARY COMPENSATORY AMOUNTS FOR FRENCH IMPORTS AND EXPORTS OF COLZA SEED BY REGULATIONS NOS 17/72 AND 144/72 OF THE COMMISSION OF 31 DECEMBER 1971 AND 21 JANUARY 1972 ( OJ L 5 , 1972 , P . 1 AND L 19 , 1972 , P . 1 ) IS STATED TO HAVE BEEN THE NECESSARY RESULT OF THE ALTERATION IN THE RATE OF EXCHANGE OF THE DOLLAR WHICH OCCURRED IN AUTUMN 1971 AND TO HAVE BEEN INTENDED TO MAINTAIN THE PROPER FUNCTIONING OF THE COMMON ORGANIZATION OF THE MARKET IN OILS AND FATS , ESPECIALLY AS REGARDS THE PRODUCTS MENTIONED .
7 THE RESULT OF THE SUDDEN ABOLITION OF THIS SYSTEM IN RESPECT OF OILS AND FATS AS FROM 1 FEBRUARY 1972 BY REGULATION NO 189/72 IS SAID TO HAVE BEEN , AS REGARDS THE APPLICANTS , THAT ' SUBSIDIES FIXED IN ADVANCE BEFORE 26 JANUARY 1972 TAKING ACCOUNT OF THE COMPENSATORY AMOUNTS LEVIED WHEN COLZA WAS IMPORTED FROM THIRD COUNTRIES AND PAID WHEN THEY WERE PLACED UNDER CONTROL AFTER THAT DATE WERE THEN INADEQUATE IN COMPARISON WITH THE REAL DIFFERENCE BETWEEN THE WORLD MARKET PRICE AND THE TARGET PRICE ' .
8 FURTHER , THE COMMISSION IS ALLEGED TO HAVE BEEN ' IN BREACH OF SEVERAL RULES LAID DOWN BY THE TREATY AND SECONDARY LEGISLATION INTENDED TO PROTECT NATIONALS OF THE COMMUNITY ' , AND THEREFORE TO HAVE COMMITTED A WRONGFUL ACT IN FIXING IN ADVANCE DURING THE PERIOD FROM 1 FEBRUARY TO 1 APRIL 1972 AND ACCORDINGLY IN PAYING ' INADEQUATE SUBSIDIES CALCULATED ON THE BASIS OF A WORLD MARKET PRICE HIGHER THAN THE REAL ONE ' . ADMISSIBILITY
9 TOWARDS THE END OF THE ORAL PROCEDURE , THE COMMISSION , THE DEFENDANT , CONTESTED THE ADMISSIBILITY OF THE APPLICATION , ALLEGING THAT THE CLAIM FOR DAMAGES IN FACT CALLED IN QUESTION THE METHOD OF CALCULATION USED BY THE COMPETENT NATIONAL AUTHORITY , THAT IS TO SAY THE SOCIETE INTERPROFESSIONNELLE DES OLEAGINEUX TO FIX IN ADVANCE THE SUBSIDIES PROVIDED FOR IN REGULATION NO 136/66 RELATING TO THE PERIOD IN DISPUTE , A COMPLAINT WHICH THE APPLICANTS COULD AND SHOULD HAVE BROUGHT BEFORE THE COMPETENT NATIONAL COURTS FOR A DECISION ON THE LEGALITY OF THE NATIONAL MEASURES ADOPTED IN EXECUTION OF COMMUNITY PROVISIONS .
10 DURING THE PROCEEDINGS AND ESPECIALLY DURING THE ORAL PROCEDURE , THE APPLICANTS MODIFIED THEIR ARGUMENTS AND REFERRED TO THE WRONGFUL ACT CONSTITUTED BY THE FAILURE TO ADJUST THE DETERMINATION OF THE WORLD MARKET PRICES TO BE ADOPTED FOR THE FIXING OF SUBSIDIES TO THE FLUCTUATIONS OF THE DOLLAR RATHER THAN THE ABOLITION OF THE COMPENSATORY AMOUNTS .
11 CONSEQUENTLY THE ARGUMENT OF THE APPLICANTS THAT THE OBJECTION OF INADMISSIBILITY IS OUT OF TIME APPEARS INSUFFICIENTLY FOUNDED .
12 FURTHERMORE , THAT ARGUMENT IS IRRELEVANT BECAUSE THE ADMISSIBILITY OF THE PROCEEDINGS MUST BE EXAMINED BY THE COURT OF ITS OWN MOTION .
13 IN THAT RESPECT THE PROCEEDINGS MUST BE EXAMINED AND A RULING GIVEN ON THE BASIS OF THE CONCLUSIONS CONTAINED IN THE APPLICATIONS WHICH IN THE PRESENT CASE REMAIN UNALTERED ; IT WAS THEN MAINTAINED THAT THE FIXING OF THE MONETARY COMPENSATORY AMOUNTS TOGETHER WITH THE FIXING OF SUBSIDIES FORMED A COHERENT WHOLE . IT WAS THEREFORE ALLEGED THAT THE ABOLITION COMPLAINED OF CAUSED THE MALFUNCTIONING OF THE COMMON ORGANIZATION OF THE MARKET IN OILS AND FATS PARTICULARLY AS REGARDS SUBSIDIES AND COMPENSATION WAS CLAIMED FOR THE DAMAGE CAUSED BY THAT ABOLITION .
14 FURTHERMORE , MOST OF THE DECISIONS FIXING SUBSIDIES IN ADVANCE WHICH THE DEFENDANT REGARDS AS THE REAL PURPOSE OF THE PROCEEDINGS , WERE PRIOR TO THE ADOPTION AND THE PUBLICATION OF REGULATION NO 189/72 , SO THAT IT IS DIFFICULT TO UNDERSTAND HOW THE APPLICANTS COULD , AT THE APPROPRIATE TIME , HAVE TAKEN ACCOUNT OF THE DEFICIENCIES OR ILLEGALITIES WHICH THEY CLAIM VITIATED THESE DECISIONS AND HAVE BROUGHT THE MATTER BEFORE THE COMPETENT NATIONAL COURTS .
15 IN THESE CIRCUMSTANCES , THE APPLICATIONS ARE ADMISSIBLE IN SO FAR AS THEY CONCERN THE CONSEQUENCES OF THE ADVANCE FIXING OF SUBSIDIES GRANTED BEFORE REGULATION NO 189/72 WAS ADOPTED .
16 ON THE OTHER HAND , THEY ARE INADMISSIBLE IN SO FAR AS THEY CONCERN THE ADVANCE FIXING OF SUBSIDIES REQUESTED AND GRANTED DURING THE PERIOD FROM 1 FEBRUARY TO 1 APRIL 1972 , BECAUSE THE APPLICANTS WERE , IN THOSE CASES , IN A POSITION TO BRING THE ALLEGED INFRINGEMENTS ' OF SEVERAL RULES LAID DOWN BY THE TREATY AND SECONDARY LEGISLATION INTENDED TO PROTECT THE NATIONALS OF THE COMMUNITY ' BEFORE THE COMPETENT NATIONAL COURTS . THE SUBSTANCE OF THE CASE
THE ARGUMENT OF THE APPLICANTS MAY BE SUMMARIZED AS FOLLOWS : ( A ) THE COMMON ORGANIZATION OF THE MARKET IN OILS AND FATS INVOLVES FOR PRODUCERS GUARANTEED REMUNERATION FOR THEIR PRODUCTS , IN THE PRESENT CASE COLZA SEED , EQUAL TO THE TARGET PRICE FIXED FOR THE MARKETING YEAR IN QUESTION . ( B ) SINCE THE ALTERATION IN THE RATE OF EXCHANGE OF THE DOLLAR , WHICH OCCURRED IN AUTUMN 1971 , THE SUBSIDIES LAID DOWN IN ORDER TO PROVIDE THE ABOVEMENTIONED REMUNERATION HAVE BECOME INADEQUATE TO ATTAIN THAT OBJECTIVE BECAUSE OF THEIR METHOD OF CALCULATION ( IN UNALTERED UNITS OF ACCOUNT ). ( C ) IN ORDER TO COMPENSATE FOR THAT DEFICIENCY AND TO PROTECT COMMUNITY PRODUCTION AGAINST COMPETITION FROM COLZA SEED AND OIL DERIVATIVES OFFERED AT PRICES BASED ON THE DEVALUED RATE OF EXCHANGE OF THE DOLLAR , IT BECAME NECESSARY TO INTRODUCE THE SYSTEM OF COMPENSATORY AMOUNTS ON IMPORTS AND EXPORTS . ( D ) THE ABOLITION OF THIS SYSTEM EXPOSED COMMUNITY PRODUCTION , IN THE PRESENT CASE THE APPLICANTS , TO THE RISK OF PRICE FORMATION AT LEVELS INSUFFICIENT TO ACHIEVE THE ABOVEMENTIONED GUARANTEE AND HAS CONSEQUENTLY CAUSED DAMAGE FOR WHICH THE COMMUNITY IS LIABLE .
18 AS REGARDS POINT ( D ), THE APPLICANTS HAVE MERELY STATED THAT THE LOGICAL RESULT OF THE ABOLITION OF THE COMPENSATORY AMOUNTS HAD TO BE A FALL IN PRICES ON THE COMMUNITY MARKET IN THE PRODUCTS IN QUESTION BUT HAVE ADDUCED NO PROOF THAT IN FACT SUCH A FALL OCCURRED .
19 ON THE ORTHER HAND , THE REPEATED STATEMENT OF THE DEFENDANT THAT THE PRICE LEVEL IN THE COMMON MARKET REMAINED UNALTERED AFTER THAT ABOLITION HAS NOT BEEN SERIOUSLY CONTESTED .
20 IT IS POSSIBLE MOREOVER TO UNDERSTAND THE ARGUMENT OF THE APPLICANTS AS MEANING THAT THEY WERE MISLED BY THE INTRODUCTION OF THE SYSTEM OF COMPENSATORY AMOUNTS INTO OBTAINING SUPPLIES OF SEEDS OF COMMUNITY ORIGIN AND REQUESTING CORRESPONDING ADVANCE FIXING OF THE SUBSIDIES , ON THE ASSUMPTION THAT IT WOULD BE MADE PARTICULARLY DIFFICULT FOR THEM TO PURCHASE SEED ON THE WORLD MARKET BECAUSE OF THE DUTY TO PAY THE COMPENSATORY AMOUNTS .
21 BECAUSE THAT ASSUMPTION PROVED TO BE MISTAKEN AS SOON AS THE COMPENSATORY AMOUNTS IN QUESTION WERE ABOLISHED , IN THE MEANWHILE THEY LOST THE OPPORTUNITY OF OBTAINING SUPPLIES MORE CHEAPLY ON THE WORLD MARKET , THIS BEING DAMAGE FOR WHICH THEY CONSIDER THE COMMUNITY LIABLE .
22 HOWEVER , EVEN ON THE ASSUMPTION THAT THE PARTIES CONCERNED COULD MAKE THE COMMUNITY LIABLE FOR THE CONSEQUENCES OF AN UNFILLED EXPECTATION CONCERNING THE COURSE WHICH COMMUNITY LEGISLATION WILL TAKE , SUCH LIABILITY COULD ONLY EXIST WITH REGARD TO ACTUAL AND CERTAIN LOSSES WHICH THEY HAD SUFFERED AS A RESULT .
23 SINCE SUCH LOSSES HAVE NOT BEEN PROVED , DAMAGE FOR WHICH THE COMMUNITY MIGHT BE LIABLE HAS NOT BEEN ESTABLISHED .
24 AS REGARDS POINT ( C ), THE RULES IN QUESTION DO NOT BEAR OUT THE EXISTENCE OF A LINK BETWEEN THE INTRODUCTION OF THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS , ON THE ONE HAND , AND THE FUNCTIONING OF THE COMMON ORGANIZATION OF THE MARKET IN OILS AND FATS , ESPECIALLY AS REGARDS THE DETERMINATION OF SUBSIDIES , ON THE OTHER , AS PRESUMED BY THE APPLICANTS .
25 IN FACT , THE ESTABLISHMENT OF THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS WAS MOTIVATED BY CONCERN THAT THE MEMBER STATES OR THIRD COUNTRIES MIGHT , BY THE ADOPTION OF MONETARY MEASURES , CREATE DISTORTIONS IN INTRA-COMMUNITY TRADE OR TRADE WITH THIRD COUNTRIES IN THE AGRICULTURAL PRODUCTS CONCERNED SUCH AS SERIOUSLY TO DISTURB THE FUNCTIONING OF THE COMMUNITY MARKETS .
26 THE OBJECT OF THE ESTABLISHMENT THEREOF WAS NOT THEREFORE ADDITIONAL PROTECTION FOR COMMUNITY PRICE LEVELS BUT THE MAINTENANCE OF SINGLE PRICES , WHICH IS THE BASIS OF THE PRESENT ORGANIZATION OF THE AGRICULTURAL MARKETS , SO THAT THE GRANTING OR THE LEVYING OF COMPENSATORY AMOUNTS IS ACCEPTABLE IN RESPECT OF A SPECIFIC PRODUCT ONLY IF TRADE IN THAT PRODUCT WOULD BE DISTURBED IN THEIR ABSENCE .
27 IT FOLLOWS THAT THE COMMISSION COULD AND EVEN SHOULD HAVE DECIDED TO ABOLISH THE SYSTEM OF COMPENSATORY AMOUNTS FOR THE PRODUCTS IN QUESTION , AS SOON AS ITS APPLICATION PROVED TO BE NO LONGER NECESSARY IN ORDER TO PREVENT DISTURBANCES IN TRADE .
28 THE APPLICANTS HAVE NOT SHOWN THAT THE ABOLITION THEREOF CAUSED DISTURBANCES IN TRADE .
29 REGULATION NO 189/72 WAS THEREFORE IN ACCORDANCE WITH THE OBJECTIVES AND PROVISIONS OF THE COMMUNITY RULES CONCERNING MONETARY COMPENSATORY AMOUNTS .
30 AS REGARDS POINT ( B ), ARTICLE 1 OF REGULATION NO 129 OF THE COUNCIL OF 23 OCTOBER 1962 ON THE VALUE OF THE UNIT OF ACCOUNT AND THE EXCHANGE RATES TO BE APPLIED FOR THE PURPOSES OF THE COMMON AGRICULTURAL POLICY ( OJ ENGLISH SPECIAL EDITION 1959-1962 , P . 274 ) PROVIDES : ' WHERE , IN INSTRUMENTS CONCERNING THE COMMON AGRICULTURAL POLICY WHICH ARE ADOPTED BY THE COUNCIL UNDER ARTICLE 43 OF THE TREATY , OR IN PROVISIONS ADOPTED PURSUANT TO THOSE INSTRUMENTS , SUMS ARE EXPRESSED IN UNITS OF ACCOUNT , THE VALUE OF THAT UNIT OF ACCOUNT SHALL BE 0.88 867 088 GRAMMES OF FINE GOLD ' .
31 UNDER ARTICLE 2 ( 1 ) OF THAT REGULATION , ' WHERE MEASURES TAKEN IN PURSUANCE OF THE INSTRUMENTS OR PROVISIONS REFERRED TO IN ARTICLE 1 REQUIRE SUMS GIVEN IN ONE CURRENCY TO BE EXPRESSED IN ANOTHER CURRENCY , THE EXCHANGE RATE TO BE APPLIED SHALL BE THAT WHICH CORRESPONDS TO THE PAR VALUE COMMUNICATED TO AND RECOGNIZED BY THE INTERNATIONAL MONETARY FUND ' .
32 LASTLY , ACCORDING TO ARTICLE 3 OF THAT REGULATION , THE COUNCIL AND THE COMMISSION MAY ' WHERE MONETARY PRACTICES OF AN EXCEPTIONAL NATURE ARE LIKELY TO JEOPARDIZE THE IMPLEMENTATION OF THE INSTRUMENTS OR PROVISIONS REFERRED TO IN ARTICLE 1 . . . MAKE DEROGATIONS FROM THIS REGULATION ' .
33 IT FOLLOWS THAT THE COUNCIL AND THE COMMISSION HAD TO CONTINUE TO APPLY ARTICLE 2 ( 1 ) OF THE ABOVEMENTIONED REGULATION IN CALCULATING THE SUBSIDY AS LONG AS THE FLUCTUATIONS OF THE DOLLAR WERE NOT SUCH AS TO JEOPARDIZE THE FUNCTIONING OF THE COMMON ORGANIZATION OF THE MARKET IN OILS AND FATS .
34 THE APPLICANTS SHOULD HAVE PROVED THAT THAT FUNCTIONING WAS NOT ONLY JEOPARDIZING BUT ACTUALLY DISORGANIZED IN ORDER TO SHOW THAT THE COUNCIL AND THE COMMISSION HAVE FAILED TO FULFIL THEIR DUTIES UNDER REGULATION NO 129 .
35 THEIR GENERAL STATEMENTS HOWEVER CANNOT BE ACCEPTED AS PROOF OF CLEAR MISUSE OF THE POWERS CONFERRED BY THAT REGULATION .
36 THE APPLICANTS ALLEGE ALSO THAT IN THE DETERMINATION OF THE CRITERIA FOR THE CALCULATION OF THE SUBSIDY , THE COMMISSION COULD HAVE TAKEN ACCOUNT OF THE REDUCTION IN THE PAR VALUE OF THE DOLLAR AS IT DID AS FROM 1 APRIL 1972 BY MEANS OF THE ADJUSTMENT PROVIDED FOR IN ARTICLE 29 OF REGULATION NO 136/66 AND LAID DOWN IN ARTICLE 6 OF REGULATION NO 115/67 OF THE COUNCIL OF 6 JUNE 1967 LAYING DOWN CRITERIA FOR DETERMINING WORLD MARKET PRICES FOR OIL SEEDS AND FIXING THE FRONTIER CROSSING POINT ( OJ ENGLISH SPECIAL EDITION 1967 , P . 31 ).
37 THAT ADJUSTMENT TENDS , ACCORDING TO THE WORDING OF THE LAST RECITAL OF THE PREAMBLE TO REGULATION NO 115/67 , TO ' PREVENT COMMUNITY PROCESSERS FROM BEING ENCOURAGED BY THE ECONOMIC ADVANTAGES ARISING FROM THE PROCESSING OF VARIOUS OIL SEEDS TO GIVE PREFERENCE TO ONE TYPE OF SEED ' .
38 AS COMPETITION BETWEEN DIFFERENT TYPES OF SEED AND NOT THAT BETWEEN COMMUNITY SEED AND IMPORTED SEED OF THE SAME TYPE IS INVOLVED , THE ADJUSTMENT IN QUESTION COULD THEREFORE NOT HAVE SERVED THE PURPOSE ENVISAGED BY THE APPLICANTS .
39 CONSEQUENTLY , THE COMPLAINT THAT THE COMMISSION DID NOT EXERCISE THE POWERS CONFERRED BY ARTICLE 6 IN THE MANNER DESIRED , IS UNFOUNDED .
40 LASTLY , AS REGARDS POINT ( A ), IN SO FAR AS REGULATION NO 136/66 IS INTENDED TO GIVE GUARANTEES , THE LATTER RELATE TO COLZA SEED FARMERS AND NOT PROCESSERS , AS APPEARS FROM ARTICLE 24 THEREOF , ACCORDING TO WHICH ' THE DERIVED INTERVENTION PRICE . . . GUARANTEES THAT PRODUCERS WILL BE ABLE TO SELL THEIR PRODUCE AT A PRICE WHICH , ALLOWING FOR MARKET FLUCTUATIONS , IS AS CLOSE AS POSSIBLE TO THE TARGET PRICE ' .
41 THE SUBSIDIES GRANTED TO SEED PROCESSERS ARE NOT INTENDED TO GUARANTEE TO THE LATTER A FIXED PAYMENT FOR THEIR PROCESSING , BUT TO ENABLE THEM TO BUY COMMUNITY SEED AT PRICES CLOSE TO THE TARGET PRICE .
42 FURTHERMORE , REGULATIONS NOS 116/67 , 2114/71 AND 2730/71 OF THE COUNCIL OF 6 JUNE 1967 , 28 SEPTEMBER AND 20 DECEMBER 1971 RESPECTIVELY ( JO 1967 , P . 2198 AND 1971 , L 222 , P . 2 AND L 282 , P . 18 ) BY GIVING THE POWER TO FIX THE SUBSIDY IN ADVANCE ENTAILS THE OPPORTUNITY FOR PROCESSERS OF OBTAINING FROM THE SYSTEM ALL THE BENEFITS WHICH IT MAY INCLUDE , AS LONG AS THEY UNDERTAKE TO PLACE THEIR PRODUCT UNDER CONTROL DURING THE PERIOD OF ADVANCE FIXING .
43 IN THESE CIRCUMSTANCES , THE APPLICANTS HAVE NO BASIS FOR CLAIMING AN ALLEGED GUARANTEE PROVIDED BY REGULATION NO 136/66 .
44 THEY HAVE ALLEGED FURTHER THAT , HAVING REGARD TO THE SYSTEM OF SUBSIDIES AS LAID DOWN BY THAT REGULATION , THE SUDDEN ABOLITION OF THE MONETARY COMPENSATORY AMOUNTS CONSTITUTES , ESPECIALLY WITH REGARD TO UNDERTAKINGS WHICH OBTAINED ADVANCE FIXING DURING JANUARY 1972 , AN INFRINGEMENT OF THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION .
45 SINCE THE INTRODUCTION OF THOSE AMOUNTS WAS MOTIVATED , IN ACCORDANCE WITH COMMUNITY RULES , BY CONCERN TO PREVENT DISTURBANCES IN TRADE AND NOT BY CONCERN TO ENSURE FOR PRODUCERS UNCHANGED REMUNERATION , THIS COMPLAINT CANNOT BE SUSTAINED .
46 IT FOLLOWS FROM ALL THE FOREGOING THAT THE APPLICATIONS ARE UNFOUNDED AND MUST , CONSEQUENTLY , BE DISMISSED .