61981J0026

NON-CONTRACTUAL LIABILITY - REQUIREMENTS - ACCUSATION OF UNLAWFUL CONDUCT - DAMAGE - CAUSAL CONNECTION

( EEC TREATY , ART . 215 , SECOND PARA .)

IT APPEARS FROM ARTICLE 215 OF THE EEC TREATY THAT THE INVOLVEMENT OF THE NON-CONTRACTUAL LIABILITY OF THE COMMUNITY AND THE ASSERTION OF THE RIGHT TO COMPENSATION FOR DAMAGE SUFFERED DEPENDS ON THE SATISFACTION OF A NUMBER OF REQUIREMENTS RELATING TO THE UNLAWFULNESS OF THE CONDUCT OF WHICH THE INSTITUTIONS ARE ACCUSED , THE REALITY OF THE DAMAGE AND THE EXISTENCE OF A CAUSAL CONNECTION BETWEEN THAT CONDUCT AND THE DAMAGE IN QUESTION .

HENCE THE COMMUNITY CANNOT BE REGARDED AS HAVING INCURRED LIABILITY EXCEPT IN THE PRESENCE OF ALL THE CONDITIONS TO WHICH THE DUTY TO MAKE GOOD ANY DAMAGE , AS DEFINED IN THE SECOND PARAGRAPH OF ARTICLE 215 , IS SUBJECT .

IN CASE 26/81

SA OLEIFICI MEDITERRANEI , BASED AT QUILIANO ( ITALY ), REPRESENTED BY E . JAKHIAN OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT , CENTRE LOUVIGNY , 34/B/IV RUE PHILIPPE-II ,

APPLICANT ,

V

EUROPEAN ECONOMIC COMMUNITY , REPRESENTED BY ITS INSTITUTIONS , NAMELY :

1 . COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY DANIEL VIGNES , DIRECTOR OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY ARTHUR BRAUTIGAM , ADMINISTRATOR IN THE SAID DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF H . J . PABBRUWE , DIRECTOR IN THE DIRECTORATE FOR LEGAL QUESTIONS OF THE EUROPEAN INVESTMENT BANK , 100 BOULEVARD KONRAD-ADENAUER ,

2.COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , J . C . SECHE , ACTING AS AGENT , ASSISTED BY J . SACK , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR DAMAGES PURSUANT TO ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY , WHEREBY THE APPLICANT SEEKS AN ORDER FOR THE PAYMENT TO IT BY THE COMMUNITY , BY WAY OF DAMAGES , OF 50 629 UNITS OF ACCOUNT ( U.A .) AS PRINCIPAL , TOGETHER WITH INTEREST AT 8% FROM 4 MAY 1979 UNTIL THE DATE OF JUDGMENT ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 13 FEBRUARY 1981 , SA OLEIFICI MEDITERRANEI , AN UNDERTAKING ESTABLISHED IN QUILIANO ( ITALY ) AND DEALING IN THE IMPORT AND EXPORT OF OLIVE OIL , BROUGHT AN ACTION UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY , SEEKING AN AWARD OF 50 629 UNITS OF ACCOUNT AS A PRINCIPAL SUM , TOGETHER WITH INTEREST AT THE RATE OF 8% FROM 4 MAY 1979 UNTIL THE DATE OF JUDGMENT , BY WAY OF COMPENSATION FOR THE DAMAGE WHICH HAS ALLEGEDLY BEEN CAUSED TO IT BY THE EUROPEAN ECONOMIC COMMUNITY , OWING TO THE ADOPTION BY THE COUNCIL AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES OF A BODY OF RULES DESIGNED TO REFORM THE SYSTEM APPLICABLE TO OLIVE OIL UNDER THE COMMON ORGANIZATION OF THE MARKET IN OILS AND FATS .

2 SINCE IT IS BY REFERENCE TO ITS REGULATIONS THAT THE COMMUNITY ' S LIABILITY IS CALLED IN QUESTION , IT IS APPROPRIATE TO RECALL AT THE OUTSET THE LEGISLATIVE FRAMEWORK WHICH ESTABLISHED THE SYSTEM APPLICABLE TO OLIVE OIL .

3 REGULATION NO 136/66/EEC OF THE COUNCIL OF 22 SEPTEMBER 1966 ESTABLISHING A COMMON ORGANIZATION OF THE MARKET IN OILS AND FATS ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1965-1966 , P . 221 ) LAID DOWN THE BASIC RULES GOVERNING TRADE IN OLIVE OIL , WHICH INVOLVED FIXING SINGLE PRICES , ACCOMPANIED BY PRODUCTION SUBSIDIES WHOSE JUSTIFICATION WAS STATED TO BE THE RELATIVELY LOW PRICES OF SUBSTITUTE PRODUCTS . AS FAR AS TRADE WITH NON-MEMBER COUNTRIES WAS CONCERNED , IT WAS PROVIDED THAT A LEVY SHOULD BE COLLECTED ON IMPORTATION AND A REFUND PAID ON EXPORTATION . THAT ARRANGEMENT REQUIRED LICENCES FOR BOTH OPERATIONS , WHICH WERE NOT ISSUED UNTIL A DEPOSIT HAD BEEN LODGED WHICH WAS FORFEITED IN WHOLE OR IN PART IF THE TRANSACTION WAS NOT EFFECTED , OR WAS ONLY PARTIALLY EFFECTED , DURING THE PERIOD OF VALIDITY OF THE LICENCE . THOSE PROVISIONS WERE MADE BY ARTICLE 17 OF REGULATION NO 136/66 , AS AMENDED BY REGULATION ( EEC ) NO 2554/70 OF THE COUNCIL OF 15 DECEMBER 1970 DEALING WITH IMPORT AND EXPORT LICENCES FOR OILS AND FATS ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( III ), P . 866 ).

4 THIS SYSTEM OF TRADE WITH NON-MEMBER COUNTRIES WAS SUPPLEMENTED BY REGULATION NO 171/67/EEC OF THE COUNCIL OF 27 JUNE 1967 ON EXPORT REFUNDS AND LEVIES ON OLIVE OIL ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1967 , P . 136 ) WHICH SET UP A SPECIFIC TRADING SYSTEM , KNOWN AS ' ' EXIM ' ' . THAT SYSTEM IS EXPRESSLY LAID DOWN IN ARTICLE 9 ( 1 ) WHICH PROVIDES :

' ' ON APPLICATION BY THE PARTY CONCERNED , THE EXPORT REFUND ON OLIVE OIL SHALL BE GRANTED IN THE FORM OF AN AUTHORIZATION TO IMPORT , FREE OF LEVY , A QUANTITY OF OLIVE OIL CORRESPONDING TO THE QUANTITY OF OLIVE OIL EXPORTED , PROVIDED IT IS PROVED THAT EXPORTATION WAS EFFECTED BEFORE IMPORTATION AND PROVIDED THAT IMPORTATION IS EFFECTED WITHIN A TIME-LIMIT STILL TO BE DETERMINED . ' '

5 IN 1978 , THE SYSTEM DESCRIBED ABOVE WAS AMENDED . IN ORDER TO ENSURE THE SALE OF COMMUNITY OLIVE OIL IN THE FACE OF COMPETITION FROM OTHER VEGETABLE OILS , WHILE ENSURING A FAIR INCOME FOR THE PRODUCERS , THE COUNCIL ADOPTED REGULATION ( EEC ) NO 1562/78 OF 29 JUNE 1978 ( OFFICIAL JOURNAL 1978 , L 185 , P . 1 ), WHEREBY IT SUPPLEMENTED THE PRODUCTION-AID SYSTEM UNDER REGULATION NO 136/66 BY A SYSTEM OF CONSUMPTION AID ( ARTICLE 11 ) DESIGNED TO ENSURE THAT OLIVE OIL WAS SOLD AT PRICES WHICH WERE COMPETITIVE WITH THE PRICE OF SEED OILS . BRINGING COMMUNITY PRICES INTO LINE WITH WORLD MARKET PRICES LED , IN ITS TURN , TO A LOWERING OF THE THRESHOLD PRICE AND CONSEQUENTLY TO A REDUCED IMPORT LEVY ON OLIVE OIL COMING FROM NON-MEMBER COUNTRIES .

6 IN ADDITION , THE SYSTEM OF LEVIES WAS SUBSTANTIALLY AMENDED . UNDER ARTICLE 16 OF THE REGULATION , THE COMMISSION IS EMPOWERED IN CERTAIN CIRCUMSTANCES TO IMPOSE A SYSTEM OF LEVIES TO BE FIXED BY TENDERING PROCEDURE . IN SUCH CASES , THE COMMISSION IS TO FIX PERIODICALLY THE RATE OF THE MINIMUM LEVY , AND ANY TENDERER HAVING INDICATED A RATE OF LEVY EQUAL TO OR HIGHER THAN THAT MINIMUM IS TO BE DECLARED A SUCCESSFUL TENDERER AND IS TO BE OBLIGED TO IMPORT THE QUANTITY OF THE PRODUCT SPECIFIED IN HIS APPLICATION AT THE RATE OF LEVY INDICATED BY HIM , IRRESPECTIVE OF THE TIME OF IMPORTATION .

7 ACCORDING TO THE COUNCIL THE ENTRY INTO FORCE OF THE CONSUMPTION-AID SYSTEM , ORIGINALLY FIXED FOR 1 NOVEMBER 1978 , THAT IS TO SAY , THE START OF THE 1978/79 MARKETING YEAR , HAD TO BE DEFERRED , IN THE FIRST INSTANCE UNTIL 1 MARCH 1979 , OWING TO THE TECHNICAL DIFFICULTIES OF INTRODUCING THE SYSTEM . CONSEQUENTLY , COUNCIL REGULATION ( EEC ) NO 3088/78 OF 19 DECEMBER 1978 ( OFFICIAL JOURNAL 1978 , L 369 , P . 11 ) ESTABLISHED TWO DIFFERENT THRESHOLD PRICES FOR THE REMAINING PORTION OF THE MARKETING YEAR 1978/79 : THE FIRST WAS FIXED AT 145.43 UNITS OF ACCOUNT ( U.A .) PER 100 KG UNTIL 28 FEBRUARY 1979 , THE SECOND AT 119.44 U.A . PER 100 KG COMMENCING ON 1 MARCH 1979 , WHICH REPRESENTS A FALL OF 25.99 U.A . PER 100 KG .

8 IN FEBRUARY 1979 , HOWEVER , THE COUNCIL OBSERVED THAT THE DIFFICULTIES STILL EXISTED AND IT POSTPONED THE INTRODUCTION OF THE NEW PRICES UNTIL 1 APRIL , BY COUNCIL REGULATION ( EEC ) NO 360/79 OF 20 FEBRUARY 1979 AMENDING REGULATION ( EEC ) NO 3088/78 IN RESPECT OF THE PERIODS OF APPLICATION FOR THE 1978/79 MARKETING YEAR OF THE REPRESENTATIVE MARKET PRICES AND OF THE THRESHOLD PRICES FOR OLIVE OIL ( OFFICIAL JOURNAL 1979 , L 46 , P . 1 ).

9 THE COMMISSION , WHICH IS EMPOWERED BY VIRTUE OF ARTICLE 16 ( 6 ) OF THE BASIC REGULATION NO 136/66 ( AS AMENDED BY REGULATION NO 1562/78 ) TO ADOPT DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF LEVIES , CONSIDERED THAT , SINCE THE THRESHOLD PRICE FOR OLIVE OIL HAD APPRECIABLY CHANGED AFTER 1 APRIL 1979 , THE RATES OF LEVY OBTAINED BY A TENDERING PROCEDURE PRIOR TO THAT DATE , WHICH WERE STATED IN THE IMPORT CERTIFICATES , SHOULD BE BROUGHT DOWN TO 24.18 U.A . PER 100 KG IN THE CASE OF THOSE IMPORTS OF OLIVE OIL FOR WHICH A CERTIFICATE HAD BEEN APPLIED FOR BEFORE 1 APRIL 1979 BUT WHICH HAD NOT BEEN EFFECTED UNTIL AFTER THAT DATE ( SEE REGULATION ( EEC ) NO 884/79 OF 3 MAY 1979 , OFFICIAL JOURNAL 1979 , L 111 , P . 18 ). ON THE OTHER HAND , NO COMPARABLE TRANSITIONAL MEASURE WAS INTRODUCED INTO THE ' ' EXIM ' ' SYSTEM AS REGARDS QUANTITIES OF OLIVE OIL IMPORTED AFTER 1 APRIL 1979 WHEN THE EXPORTATION OF CORRESPONDING QUANTITIES HAD TAKEN PLACE BEFORE THAT DATE .

10 BEFORE 1 APRIL 1979 THE APPLICANT EXPORTED TO , AND AFTER THAT DATE IMPORTED FROM , NON-MEMBER COUNTRIES SOME QUANTITIES OF OLIVE OIL UNDER THE ' ' EXIM ' ' SYSTEM , THE BENEFIT OF WHICH IT HAD SOUGHT . IT THUS EXPORTED WITHOUT REFUND AND IMPORTED FREE OF LEVY . IN SUPPORT OF ITS ACTION IT MAINTAINS , IN ESSENCE , THAT THE COMMISSION SHOULD ALSO HAVE PROVIDED A TRANSITIONAL SYSTEM FOR ' ' EXIM ' ' TRANSACTIONS AND THAT ITS OMISSION TO DO SO CONSTITUTED AN ILLEGALITY GIVING RISE TO LIABILITY ON ITS PART AND REQUIRING IT TO MAKE GOOD THE DAMAGE - BE IT LOSS INCURRED OR GAINS PREVENTED - SUSTAINED BY THE APPLICANT AS A RESULT OF THE ' ' EXIM ' ' TRANSACTIONS DURING THE PERIOD UNDER CONSIDERATION .

11 THE APPLICANT ADMITS THAT IT WAS FORESEEABLE BY ALL THE TRADERS THAT THE INTRODUCTION OF THE CONSUMPTION-AID SYSTEM , ORIGINALLY FIXED FOR 1 NOVEMBER 1978 , WAS BOUND TO BRING ABOUT A FALL IN THE PRICE OF OLIVE OIL , WHETHER IMPORTED OR HOME-PRODUCED , IN THE COMMON MARKET . IT MAINTAINS , HOWEVER , THAT AFTER THE DATE ON WHICH THE AID SYSTEM WAS TO COME INTO FORCE HAD BEEN POSTPONED ONCE , AND THEN A SECOND TIME , IT COULD REASONABLY COUNT ON THE PREVIOUS SYSTEM ' S BEING FURTHER EXTENDED BEYOND 1 APRIL 1979 . CONSEQUENTLY , THE APPLICANT CARRIED OUT THE ' ' EXIM ' ' TRANSACTIONS UPON CONDITIONS WHICH , AS REGARDS THE PRICES WHICH IT PAID FOR OIL IMPORTS INTO THE COMMUNITY , INVOLVED THE ASSUMPTION THAT THE PRICE OF OIL WITHIN THE COMMON MARKET WOULD BE MAINTAINED , ALSO AFTER 1 APRIL 1979 , AT THE LEVELS DERIVED FROM THE THRESHOLD PRICE AS FIXED PRIOR TO THAT DATE .

12 THE APPLICANT ' S MAIN CONTENTION , THEREFORE , IS THAT THE COMMISSION , BY FAILING TO LAY DOWN IN REGULATION NO 884/79 TRANSITIONAL MEASURES DESIGNED TO COMPENSATE ' ' EXIM ' ' IMPORTERS FOR THE FALL IN PRICES ON THE COMMUNITY MARKET , IN THE SAME WAY AS IT LAID DOWN TRANSITIONAL MEASURES IN FAVOUR OF IMPORTERS WHO HAD COMMITTED THEMSELVES TO PAYING A HIGH LEVY , WAS RESPONSIBLE FOR AN ILLEGALITY WHICH WAS OF SUCH A NATURE AS TO GIVE RISE TO LIABILITY ON THE PART OF THE COMMUNITY AND INJURIOUS CONSEQUENCES OF WHICH THE COMMUNITY MUST MAKE GOOD . IN THE ALTERNATIVE , THE APPLICANT PLEADS THE LIABILITY OF THE COMMUNITY AS ARISING OUT OF THE ACTS OF THE COUNCIL ON THE BASIS OF THE APPLICATION OF THE PRINCIPLE OF LIABILITY WITHOUT FAULT ARISING FROM A LEGISLATIVE MEASURE .

THE ACTION BROUGHT AGAINST THE COMMISSION

13 THE APPLICANT ' S MAIN ARGUMENT IS TO THE EFFECT THAT THE COMMISSION DID NOT , IN THIS INSTANCE , HAVE A TRUE DISCRETION INVOLVING AN ECONOMIC CHOICE AS ITS POWERS WERE CONFINED , WITHIN THE LIMITS OF THE COUNCIL REGULATIONS WHICH IT IMPLEMENTED , TO ADOPTING A TRANSITIONAL MEASURE WHEN THERE WAS A REDUCTION IN THE RATE OF THE LEVIES , AS THE RESULT OF AN APPRAISAL UNDERTAKEN BY THE COUNCIL ITSELF . THE APPLICANT INFERS FROM THAT LEGAL POSITION THAT IT NEED DO NO MORE THAN ESTABLISH THAT THE REGULATION WAS UNLAWFUL , WITHOUT HAVING TO PROVE THE EXISTENCE OF A SERIOUS AND SUBSTANTIAL ILLEGALITY AMOUNTING TO A BREACH OF A SUPERIOR PRINCIPLE OF LAW FOR THE PROTECTION OF THE INDIVIDUAL . HOWEVER , IN THE ALTERNATIVE , THE APPLICANT TAKES THE VIEW THAT IF THE COURT WERE TO UPHOLD THE ARGUMENT TO THE EFFECT THAT THE COMMISSION DID ENJOY A LARGE MEASURE OF DISCRETION , THE COMPLAINTS FORMULATED AGAINST THE LATTER WOULD NEVERTHELESS PROVIDE GROUNDS FOR FINDING THAT THERE WAS A SERIOUS FAULT OF THAT NATURE , NAMELY THE OMISSION TO ADOPT TRANSITIONAL MEASURES IN FAVOUR OF ' ' EXIM ' ' TRADERS . THUS , THE COMMISSION HAS OFFENDED , IN THE FIRST PLACE , AGAINST THE PRINCIPLE OF EQUALITY OF TREATMENT , NAMELY BY DIFFERENTIATING BETWEEN OBJECTIVELY COMPARABLE SITUATIONS AND , SECONDLY , AGAINST THE PRINCIPLE OF LEGITIMATE EXPECTATION , FOR THE ' ' EXIM ' ' TRADERS , BEING UNABLE TO ASCERTAIN THE DATE ON WHICH THE AMENDMENT WAS TO TAKE EFFECT , COULD LEGITIMATELY HAVE ANTICIPATED THAT TRANSITIONAL MEASURES WOULD BE ADOPTED . IN THE FINAL ANALYSIS , THE CAUSE OF THE DAMAGE IS TO BE FOUND IN THE FACT THAT NO TRANSITIONAL MEASURES WERE ADOPTED IN FAVOUR OF THE ' ' EXIM ' ' TRADERS .

14 THE COMMISSION WHOLLY REJECTS THAT LINE OF ARGUMENT . TURNING FIRST TO ITS DISCRETION , IT CONTENDS THAT ARTICLE 16 ( 6 ) OF REGULATION NO 136/66 ( AS SET FORTH IN REGULATION NO 1562/78 ) IS DESIGNED TO ENABLE THE COMMISSION TO ADOPT MEASURES FIXING THE LEVY IN COMPLIANCE WITH THE PROCEDURE SET FORTH IN ARTICLE 38 , IN CONSULTATION WITH THE MANAGEMENT COMMITTEE FOR OILS AND FATS . THE COMMISSION FURTHER CONTENDS THAT THE RESPECTIVE SITUATIONS OF THE TWO CATEGORIES OF TRADERS CONCERNED ARE NOT COMPARABLE BECAUSE , WHEREAS THE ' ' CASH ' ' TRADER ENDEAVOURS TO TAKE PRECAUTIONS AGAINST AN ECONOMIC RISK BY FIXING HIS LEVY IN ADVANCE , THE ' ' EXIM ' ' TRADER , ON THE CONTRARY , AGREES TO ACCEPT SUCH A RISK BY EMBARKING UPON A SPECULATIVE VENTURE WHICH ENTAILS FOREGOING ONE ADVANTAGE IN EXCHANGE FOR ANOTHER , POTENTIAL ADVANTAGE WHICH HE EXPECTS TO BE GREATER . THAT DIFFERENCE JUSTIFIES THE FACT THAT NO TRANSITIONAL MEASURE WAS ADOPTED IN FAVOUR OF ' ' EXIM ' ' TRADERS .

15 MOREOVER , THE COMMISSION STRESSES - AS DOES THE COUNCIL - A FURTHER ARGUMENT FOR HAVING THE ACTION DISMISSED . THEY CLAIM THAT THE CAUSE OF THE DAMAGE IS TO BE FOUND NOT IN THE REGULATIONS BUT IN THE APPLICANT ' S CONDUCT .

16 THE COURT HAS CONSISTENTLY INTERPRETED ARTICLE 215 OF THE EEC TREATY AS MEANING THAT THE INVOLVEMENT OF THE NON-CONTRACTUAL LIABILITY OF THE COMMISSION AND THE ASSERTION OF THE RIGHT TO COMPENSATION FOR DAMAGE SUFFERED DEPEND ON THE SATISFACTION OF A NUMBER OF REQUIREMENTS RELATING TO THE UNLAWFULNESS OF THE CONDUCT OF WHICH THE INSTITUTIONS ARE ACCUSED , THE REALITY OF THE DAMAGE AND THE EXISTENCE OF A CAUSAL CONNECTION BETWEEN THAT CONDUCT AND THE DAMAGE IN QUESTION .

17 HENCE THE COMMUNITY CANNOT BE REGARDED AS HAVING INCURRED LIABILITY EXCEPT IN THE PRESENCE OF ALL THE CONDITIONS TO WHICH THE DUTY TO MAKE GOOD ANY DAMAGE , AS DEFINED IN THE SECOND PARAGRAPH OF ARTICLE 215 , IS SUBJECT .

18 IN THIS CASE IT IS NECESSARY TO EXAMINE IN THE FIRST PLACE THE SUBMISSION THAT THERE IS NO CAUSAL CONNECTION BETWEEN THE CONDUCT FOR WHICH THE COMMISION IS CRITICIZED AND THE ALLEGED DAMAGE .

19 ACCORDING TO THE DEFENDANTS , THE REASON FOR THE APPLICANT ' S FAILURE TO MAKE A PROFIT LIES IN ITS OWN CONDUCT IN CHOOSING THE ' ' EXIM ' ' SYSTEM AT A TIME WHEN IT KNEW FOR A FACT THAT AMENDMENTS WERE IMMINENT WHICH WOULD CONSIST ESSENTIALLY IN THE CREATION OF A CONSUMPTION AID WHICH WAS BOUND TO ENTAIL A FALL IN COMMUNITY PRICES : BUT THE APPLICANT CALCULATED THAT THE ENTRY INTO FORCE OF THE NEW SYSTEM WOULD BE POSTPONED LONG ENOUGH TO ENABLE IT TO COMPLETE ITS ' ' EXIM ' ' TRANSACTION BEFORE THAT EVENT . THE COUNCIL POINTS OUT IN PARTICULAR THAT SUCH AN ATTITUDE AMOUNTS TO THE VOLUNTARY ACCEPTANCE ON THE APPLICANT ' S PART OF THE RISK THAT THE COMMUNITY SELLING PRICES FOR OLIVE OIL MIGHT BE AFFECTED BY THE OPERATION OF THE CONSUMPTION-AID SCHEME .

20 THE APPLICANT MAINTAINS THAT , INASMUCH AS THE DATE OF THE ENTRY INTO FORCE OF THE APPROVED AMENDMENT HAD REMAINED UNCERTAIN FOR TOO LONG , THE ' ' EXIM ' ' TRADER WAS ENTITLED TO SUPPOSE THAT , SINCE THE ' ' EXIM ' ' SYSTEM WAS AVAILABLE , HE WAS FREE TO USE IT AND THAT IF NEED BE THE COMMUNITY LEGISLATURE WOULD INTRODUCE THE REQUISITE TRANSITIONAL MEASURES TO PREVENT THE SYSTEM FROM TURNING TO HIS DISADVANTAGE . THUS THE FACT THAT SUCH MEASURES WERE NOT ADOPTED CONSTITUTES THE CAUSE OF THE DAMAGE .

21 IT IS COMMON GROUND THAT THE APPLICANT WAS AWARE THAT COUNCIL REGULATION NO 1562/78 HAD , ON 29 JUNE 1978 , INTRODUCED A NEW SYSTEM FOR OLIVE OIL WHICH WAS INTENDED TO CAUSE THRESHOLD PRICES TO FALL , AND THAT COUNCIL REGULATION ( EEC ) NO 3088/78 OF 19 DECEMBER 1978 HAD STIPULATED 1 MARCH 1979 AS THE DATE ON WHICH THE NEW SYSTEM WAS TO ENTER INTO FORCE .

22 IN THOSE CIRCUMSTANCES , THE APPLICANT , AS AN INFORMED EXPORTER AND WITH FULL COGNIZANCE OF THE CONDITIONS GOVERNING THE MARKET LAID DOWN BY THE REGULATIONS , MUST HAVE KNOWN BY 27 JANUARY 1979 , WHEN IT EXPORTED TO LIBYA , IN THE FIRST PHASE OF ITS ' ' EXIM ' ' TRANSACTION , THAT THE THRESHOLD PRICES WERE DUE TO BE LOWERED ON 1 MARCH 1979 , WHICH WAS BOUND TO MAKE THE LEVY-FREE IMPORTATIONS LESS ADVANTAGEOUS .

23 THE FACT THAT THE ACTUAL DATE OF ENTRY INTO FORCE OF THE CONSUMPTION-AID SYSTEM WAS POSTPONED , FOR THE SECOND TIME , BY ONE MONTH ON 20 FEBRUARY 1979 WAS NOT SUCH AS TO ALTER THE RISK WHICH THE APPLICANT HAD FREELY CHOSEN TO RUN .

24 IT FOLLOWS THAT THE DAMAGE ALLEGED WAS NOT CAUSED BY THE CONDUCT OF THE COMMUNITY INSTITUTIONS , BUT IS EXCLUSIVELY ATTRIBUTABLE TO THE CHOICE OF THE APPLICANT , WHICH COULD NOT HAVE BEEN UNAWARE OF THE RULES RELATING TO ITS TRANSACTIONS , AND OF THE CONSEQUENCES WHICH ITS CONDUCT MIGHT ENTAIL .

25 THUS , WITHOUT THERE BEING ANY NEED TO EXAMINE THE LAWFULNESS OF REGULATION NO 884/79 OR THE REALITY OF THE DAMAGE , THE ACTION , IN AS FAR AS IT IS BROUGHT AGAINST THE COMMISSION , MUST BE DISMISSED .

THE ACTION AGAINST THE COUNCIL

26 THE APPLICANT ' S CASE AGAINST THE COUNCIL IS THAT , ALTHOUGH REGULATIONS NOS 1562/78 , 3088/78 AND 360/79 ARE NOT UNLAWFUL , THE LIABILITY OF THE COUNCIL IS NONE THE LESS INCURRED AS IT STEMS FROM THE PRINCIPLE , RECOGNIZED IN COMMUNITY LAW , THAT A LEGISLATIVE AUTHORITY MAY BECOME LIABLE WITHOUT FAULT .

27 IT FOLLOWS , HOWEVER , FROM THE CONSIDERATIONS SET OUT ABOVE THAT THE ALLEGED DAMAGE , EVEN ASSUMING IT TO HAVE BEEN SUBSTANTIATED , IS ATTRIBUTABLE ENTIRELY TO THE APPLICANT ' S CONDUCT AND THAT ACCORDINGLY THE ACTION MUST ALSO BE DISMISSED INASMUCH AS IT IS BROUGHT AGAINST THE COUNCIL .

COSTS

28 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .

29 SINCE THE APPLICANT HAS FAILED IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE APPLICANT TO PAY THE COSTS .