61982J0281

1 . ACTION FOR DAMAGES - INDEPENDENT NATURE - USE OF NATIONAL REMEDIES - CONDITIONS

( EEC TREATY , ARTS 178 AND 215 , SECOND PARA .)

2 . AGRICULTURE - MONETARY COMPENSATORY AMOUNTS - ALTERATIONS FOLLOWING A CHANGE IN EXCHANGE RATES - IMPLEMENTATION PERIOD - COMMISSION ' S DISCRETION

( REGULATION NO 974/71 OF THE COUNCIL , ART . 3 )

3 . AGRICULTURE - MONETARY COMPENSATORY AMOUNTS - PURPOSE - CONDITIONS FOR APPLICATION

( REGULATION NO 974/71 OF THE COUNCIL )

4 . AGRICULTURE - MONETARY COMPENSATORY AMOUNTS - ALTERATIONS FOLLOWING A CHANGE IN EXCHANGE RATES - TRADERS ' LEGITIMATE EXPECTATION

5 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - DISCRIMINATION BETWEEN PRODUCERS OR CONSUMERS WITHIN THE COMMUNITY - PROHIBITION - SCOPE

( EEC TREATY , ART . 40 ( 3 ), SECOND SUBPARA .)

1 . THE ACTION FOR DAMAGES , PURSUANT TO ARTICLE 178 AND 215 OF THE TREATY , WAS SET UP AS AN INDEPENDENT ACTION , HAVING ITS OWN PARTICULAR PLACE IN THE SYSTEM OF MEANS OF REDRESS AND SUBJECT TO CONDITIONS FOR ITS USE FORMULATED IN THE LIGHT OF ITS SPECIFIC PURPOSE . IT MUST NEVERTHELESS BE VIEWED IN THE CONTEXT OF THE ENTIRE SYSTEM ESTABLISHED BY THE TREATY FOR THE JUDICIAL PROTECTION OF THE INDIVIDUAL . WHERE AN INDIVIDUAL CONSIDERS THAT HE HAS BEEN INJURED BY THE APPLICATION OF A COMMUNITY LEGISLATIVE MEASURE THAT HE CONSIDERS ILLEGAL , HE MAY , WHEN THE IMPLEMENTATION OF THE MEASURE IS LEFT TO THE NATIONAL AUTHORITIES , CONTEST THE VALIDITY OF THE MEASURE , WHEN IT IS IMPLEMENTED , BEFORE A NATIONAL COURT IN AN ACTION AGAINST THE NATIONAL AUTHORITIES . THAT COURT MAY , OR EVEN MUST , AS PROVIDED FOR IN ARTICLE 177 , REFER THE QUESTION OF THE VALIDITY OF THE COMMUNITY MEASURE IN DISPUTE TO THE COURT OF JUSTICE . HOWEVER , THE EXISTENCE OF SUCH A MEANS OF REDRESS WILL BE CAPABLE OF ENSURING THE EFFECTIVE PROTECTION OF THE INDIVIDUALS CONCERNED ONLY IF IT MAY RESULT IN MAKING GOOD THE ALLEGED DAMAGE .

CONSEQUENTLY , AN ACTION FOR DAMAGES BROUGHT AGAINST THE COMMUNITY INSTITUTIONS MAY NOT BE DECLARED INADMISSIBLE ON THE GROUND THAT THE APPLICANT HAS NOT MADE USE OF THE LEGAL REMEDIES AVAILABLE IN NATIONAL LAW WHEN IT IS NOT DISPUTED THAT THESE REMEDIES WERE NOT CAPABLE OF GUARANTEEING HIM EFFECTIVE PROTECTION .

2 . ALTHOUGH ARTICLE 3 OF REGULATION NO 974/71 REQUIRES THE COMMISSION TO MODIFY THE MONETARY COMPENSATORY AMOUNTS WHEN THE MONETARY DIFFERENCE SERVING AS A BASIS FOR THEIR CALCULATION CHANGES BY AT LEAST ONE POINT FROM THE PERCENTAGE TAKEN AS A BASIS FOR THE PRECEDING DETERMINATION , THAT PROVISION DOES , HOWEVER , LEAVE IT A CERTAIN DISCRETION IN CHOOSING THE TIME AT WHICH TO IMPLEMENT THE ALTERATIONS . THE ALTERATION OF THE MONETARY COMPENSATORY AMOUNTS NEED NOT BE IMMEDIATE , SINCE THE COMMISSION HAS A REASONABLE PERIOD ALLOWING IT TO TAKE ITS DECISIONS ON THE BASIS OF THE MOST RELIABLE INFORMATION .

3 . THE ESTABLISHMENT OF COMPENSATORY AMOUNTS WAS INTENDED TO MAINTAIN THE SINGLE-PRICE SYSTEM , THE BASIS OF THE PRESENT ORGANIZATION OF THE MARKETS , THUS AVOIDING A DISORGANIZATION OF THE SYSTEM OF INTERVENTION PRICES AND MAINTAINING NORMAL PATTERNS OF TRADE IN AGRICULTURAL PRODUCTS BOTH BETWEEN THE MEMBER STATES AND WITH NON-MEMBER COUNTRIES . THE COMPENSATORY AMOUNTS CAN BE APPLIED THEREFORE ONLY IN SO FAR AS THE MONETARY MEASURES REFERRED TO INVOLVE DISTURBANCES IN TRADE IN AGRICULTURAL PRODUCTS .

4 . A TRADER CANNOT LEGITIMATELY EXPECT THAT THE MONETARY COMPENSATORY AMOUNTS WILL BE MODIFIED WHILE NEGOTIATIONS WITHIN THE COUNCIL , OF WHICH TRADERS ARE NECESSARILY AWARE AND THE VERY PURPOSE OF WHICH IS TO AVOID AN INCREASE IN THOSE AMOUNTS BY MEANS OF AN ADJUSTMENT OF THE REPRESENTATIVE RATES , ARE STILL IN PROGRESS .

5 . THE PROHIBITION OF DISCRIMINATION CONTAINED IN THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE TREATY IS MERELY A SPECIFIC ENUNCIATION OF THE GENERAL PRINCIPLE OF EQUALITY WHICH IS ONE OF THE FUNDAMENTAL PRINCIPLES OF COMMUNITY LAW . THAT PRINCIPLE MEANS THAT LIKE SITUATIONS SHOULD NOT BE TREATED DIFFERENTLY UNLESS SUCH DIFFERENT TREATMENT IS OBJECTIVELY JUSTIFIED .

IN CASE 281/82

SOCIETE A RESPONSABILITE LIMITEE UNIFREX ( A LIMITED LIABILITY COMPANY ), WHOSE REGISTERED OFFICE IS AT 580 RUE DES VIGNES-DARDELAIN , 21160 MARSANNAY-LA-COTE , FRANCE , REPRESENTED BY G . BENAR , ADVOCATE AT THE COUR D ' APPEL , DIJON , AND P . F . RYZIGER , ADVOCATE AT THE CONSEIL D ' ETAT AND THE COUR DE CASSATION , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT , PRESIDENT OF THE BAR , 34 B IV RUE PHILIPPE-II ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY FRANCOIS LAMOUREUX , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , JEAN MONNET BUILDING , KIRCHBERG ,

AND

COUNCIL OF THE COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER BERNARD SCHLOH AND ARTHUR BRAUTIGAM , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF H . J . PABBRUWE , DIRECTOR OF THE EUROPEAN INVESTMENT BANK , 100 BOULEVARD KONRAD-ADENAUER ,

DEFENDANTS ,

APPLICATION FOR DAMAGES UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 21 OCTOBER 1982 , UNIFREX , A LIMITED LIABILITY COMPANY , OF MARSANNAY-LA-COTE ( FRANCE ), INSTITUTED PROCEEDINGS AGAINST THE COUNCIL AND THE COMMISSION , UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY , FOR DAMAGES FOR THE LOSS WHICH IT CLAIMS TO HAVE SUFFERED BY VIRTUE OF THE FACT THAT THE MONETARY COMPENSATORY AMOUNTS HAD NOT , DURING THE PERIOD FROM 23 MARCH TO 5 APRIL 1981 , BEEN ADJUSTED TO TAKE ACCOUNT OF THE ALTERATIONS IN THE RELATIONSHIPS BETWEEN CURRENCIES , AND THAT NO EQUITABLE COMPENSATION HAD BEEN PROVIDED .

2 THE APPLICANT EXPORTS AGRICULTURAL PRODUCTS AND IN PARTICULAR CEREALS TO ITALY . IN THE CONTRACTS WHICH IT CONCLUDES WITH ITALIAN TRADERS , THE PRICES OF THOSE GOODS ARE AGREED IN LIRE , ACCOUNT BEING TAKEN OF THE COMPENSATORY AMOUNTS TO BE GRANTED UPON IMPORTATION INTO ITALY .

3 ON 23 MARCH 1981 , IN THE CONTEXT OF AN ADJUSTMENT OF THE CENTRAL RATES WITHIN THE EUROPEAN MONETARY SYSTEM , THE ITALIAN LIRA WAS DEVALUED BY 6% AGAINST THE OTHER CURRENCIES IN THE SYSTEM . HOWEVER , IT WAS ONLY WITH EFFECT FROM 6 APRIL 1981 THAT THE COUNCIL , BY REGULATION NO 850/81 OF 1 APRIL 1981 AMENDING REGULATION NO 878/77 ON THE EXCHANGE RATES TO BE APPLIED IN AGRICULTURE ( OFFICIAL JOURNAL , L 90 , P . 1 ), ADJUSTED THE REPRESENTATIVE RATES USED IN THE CONTEXT OF THE COMMON AGRICULTURAL POLICY .

4 IT IS NOT CONTESTED BETWEEN THE PARTIES THAT THE MONETARY SITUATION SO CREATED BETWEEN 23 MARCH AND 6 APRIL 1981 SHOULD NORMALLY HAVE BROUGHT ABOUT A MODIFICATION OF THE MONETARY COMPENSATORY AMOUNTS PURSUANT TO ARTICLE 3 OF REGULATION NO 974/71 OF THE COUNCIL OF 12 MAY 1971 ON CERTAIN MEASURES OF CONJUNCTURAL POLICY TO BE TAKEN IN AGRICULTURE FOLLOWING THE TEMPORARY WIDENING OF THE MARGINS OF FLUCTUATION FOR THE CURRENCIES OF CERTAIN MEMBER STATES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION , 1971 ( I ), P . 257 ). UNDER THE TERMS OF THAT PROVISION , IF THE DIFFERENCE BETWEEN THE RATES SERVING AS A BASIS FOR THE CALCULATION OF THE MONETARY AMOUNTS , WITHIN THE MEANING OF ARTICLE 2 ( 1 ) OF THAT REGULATION , CHANGES BY AT LEAST ONE POINT FROM THE PERCENTAGE TAKEN AS A BASIS FOR THE PRECEDING DETERMINATION , THE AMOUNTS ARE ALTERED BY THE COMMISSION IN LINE WITH THE CHANGE IN THE DIFFERENCE .

5 THE COMMISSION , HOWEVER , LEFT THE COMPENSATORY AMOUNTS UNCHANGED FOR THE SAID PERIOD . BY REGULATION NO 801/81 OF 27 MARCH 1981 CONCERNING MONETARY COMPENSATORY AMOUNTS AND DIFFERENTIAL AMOUNTS ( OFFICIAL JOURNAL , L 82 , P . 17 ), IT EVEN EXPRESSLY PROVIDED THAT THE AMOUNTS APPLICABLE FOR THE WEEK OF 30 MARCH TO 5 APRIL 1981 WERE IDENTICAL TO THOSE APPLICABLE ON 23 MARCH 1981 . ACCORDING TO THE PREAMBLE TO THAT REGULATION , THE FREEZE IN QUESTION WAS JUSTIFIED , AS A PRECAUTIONARY MEASURE , BY THE IMMINENCE OF A COUNCIL DECISION TO ALTER THE REPRESENTATIVE RATES .

6 IT WAS ONLY WITH EFFECT FROM 6 APRIL , THE DATE OF THE ADJUSTMENT OF THE REPRESENTATIVE RATES , THAT THE COMMISSION , BY REGULATION NO 902/81 OF 3 APRIL 1981 ( OFFICIAL JOURNAL , L 94 , P . 3 ), RECALCULATED THE COMPENSATORY AMOUNTS TAKING ACCOUNT OF THE ALTERATIONS IN BOTH THE CENTRAL RATES AND THE REPRESENTATIVE RATES . AS REGARDS ITALY , THE AMOUNTS WERE FIXED AT -1 .

7 CONSIDERING THAT THAT PROCEDURE INFRINGED COMMUNITY LAW AND CAUSED IT DAMAGE , THE APPLICANT INSTITUTED THE PRESENT APPLICATION CLAIMING DAMAGES IN THE AMOUNT OF FF 2 957 276.77 .

ADMISSIBILITY

8 BOTH THE COMMISSION AND THE COUNCIL HAVE RAISED OBJECTIONS WITH REGARD TO THE ADMISSIBILITY OF THE APPLICATION .

9 THE COMMISSION CONTENDS THAT THE APPLICATION IS INADMISSIBLE INASMUCH AS THE APPLICANT COULD HAVE OBTAINED COMPENSATION FOR THE ALLEGED DAMAGE IN THE NATIONAL COURTS . IT COULD HAVE APPLIED TO THE FRENCH ADMINISTRATIVE COURTS FOR AN ORDER ANNULLING THE DECISION OF THE ONIC BY WHICH THE LATTER APPLIED TO IT THE DISPUTED COMPENSATORY AMOUNTS . SUCH AN ACTION COULD HAVE GIVEN RISE TO A REFERENCE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE TREATY AND THUS ALLOWED THE COURT TO EXAMINE THE VALIDITY OF THE PROVISIONS OF THE REGULATIONS IN QUESTION .

10 ON THE OTHER HAND , THE APPLICANT CLAIMS THAT THE ACTION FOR DAMAGES IS A MEANS OF REDRESS INDEPENDENT OF THOSE AVAILABLE IN NATIONAL LAW . MOREOVER , NO NATIONAL MEANS OF REDRESS LIKELY TO GIVE IT SATISFACTION IS AVAILABLE IN THIS CASE , SINCE AN ACTION FOR ANNULMENT CANNOT LEAD TO LARGER COMPENSATORY AMOUNTS BEING GRANTED .

11 AN ESTABLISHED BODY OF THE CASE-LAW OF THE COURT OF JUSTICE SHOWS THAT THE ACTION FOR DAMAGES , PURSUANT TO ARTICLES 178 AND 215 OF THE TREATY , WAS SET UP AS AN INDEPENDENT ACTION , HAVING ITS OWN PARTICULAR PLACE IN THE SYSTEM OF MEANS OF REDRESS AND SUBJECT TO CONDITIONS FOR ITS USE FORMULATED IN THE LIGHT OF ITS SPECIFIC PURPOSE . IT MUST NEVERTHELESS BE VIEWED IN THE CONTEXT OF THE ENTIRE SYSTEM ESTABLISHED BY THE TREATY FOR THE JUDICIAL PROTECTION OF THE INDIVIDUAL . WHERE AN INDIVIDUAL CONSIDERS THAT HE HAS BEEN INJURED BY THE APPLICATION OF A COMMUNITY LEGISLATIVE MEASURE THAT HE CONSIDERS ILLEGAL , HE MAY , WHEN THE IMPLEMENTATION OF THE MEASURE IS LEFT TO THE NATIONAL AUTHORITIES , CONTEST THE VALIDITY OF THE MEASURE , WHEN IT IS IMPLEMENTED , BEFORE A NATIONAL COURT IN AN ACTION AGAINST THE NATIONAL AUTHORITIES . THAT COURT MAY , OR EVEN MUST , AS PROVIDED FOR IN ARTICLE 177 , REFER THE QUESTION OF THE VALIDITY OF THE COMMUNITY MEASURE IN DISPUTE TO THE COURT OF JUSTICE . HOWEVER , THE EXISTENCE OF SUCH A MEANS OF REDRESS WILL BE CAPABLE OF ENSURING THE EFFECTIVE PROTECTION OF THE INDIVIDUALS CONCERNED ONLY IF IT MAY RESULT IN MAKING GOOD THE ALLEGED DAMAGE .

12 THAT IS NOT SO IN THIS CASE . THE APPLICANT HAS SHOWN , WITHOUT BEING CONTRADICTED BY THE COMMISSION , THAT PROCEEDINGS FOR ANNULMENT IN THE NATIONAL ADMINISTRATIVE COURTS COULD NOT , IN THIS CASE , HAVE EFFECTIVELY PROTECTED THE APPLICANT . EVEN IF THE DISPUTED COMMUNITY RULES WERE DECLARED INVALID BY A PRELIMINARY RULING OF THE COURT GIVEN IN THE CONTEXT OF SUCH PROCEEDINGS AND THE NATIONAL DECISION WERE ANNULLED , THAT ANNULMENT COULD NOT HAVE REQUIRED THE NATIONAL AUTHORITIES TO PAY HIGHER MONETARY COMPENSATORY AMOUNTS TO THE APPLICANT , WITHOUT THE PRIOR INTERVENTION OF THE COMMUNITY LEGISLATURE .

13 IN THOSE CONDITIONS , THE COMMISSION ' S OBJECTION CANNOT BE ACCEPTED .

14 THE COUNCIL , FOR ITS PART , CONSIDERS THAT THE APPLICATION IS INADMISSIBLE BECAUSE THE ORIGINATING APPLICATION , CONTRARY TO ARTICLE 38 ( 1 ) ( C ) OF THE RULES OF PROCEDURE , DOES NOT STATE WITH SUFFICIENT CLARITY THE SUBJECT-MATTER OF THE DISPUTE NOR DOES IT STATE , EVEN SUMMARILY , THE GROUNDS ON WHICH THE APPLICATION IS BASED AS REGARDS THE INFRINGEMENT ALLEGEDLY COMMITTED BY THE COUNCIL .

15 HOWEVER , THE STATEMENT OF THE FACTS CONTAINED IN THE APPLICATION AS WELL AS THE DETAILS ADDED IN THE COURSE OF THE PROCEEDINGS SHOW CLEARLY THAT THE APPLICANT COMPLAINS THAT THE COUNCIL DID NOT IMMEDIATELY ADOPT APPROPRIATE MEASURES TO COMPENSATE FOR THE MONETARY CHANGES WHICH TOOK PLACE ON 23 MARCH 1981 . IN THOSE CIRCUMSTANCES THE COUNCIL WAS IN FACT ENABLED TO ADOPT A POSITION ON THE SUBSTANCE OF THE CASE , WHICH IT IN FACT DID IN ITS OBSERVATIONS , AND THE COURT IS ENABLED TO EXERCISE ITS POWER OF REVIEW .

16 THEREFORE , THE COUNCIL ' S OBJECTION MUST ALSO BE REJECTED .

THE SUBSTANCE

17 ACCORDING TO THE APPLICANT , THE NON-CONTRACTUAL LIABILITY OF THE COMMUNITY DERIVES FROM THE FACT THAT THE COMMISSION DID NOT MODIFY THE MONETARY COMPENSATORY AMOUNTS FOR THE PERIOD FROM 23 MARCH TO 5 APRIL 1981 WHILST THE COUNCIL AMENDED THE REPRESENTATIVE RATES ONLY WITH EFFECT FROM 6 APRIL 1981 . THAT PROCEDURE IS CONTRARY TO THE BASIC REGULATION NO 974/71 , CITED ABOVE , AND BREACHES THE PRINCIPLES OF THE PROTECTION OF LEGITIMATE EXPECTATION AND NON-DISCRIMINATION .

18 THE APPLICANT CLAIMS , IN THE FIRST PLACE , THAT THE FAILURE TO ADAPT THE COMPENSATORY AMOUNTS IMMEDIATELY TO THE MONETARY SITUATION RESULTING FROM THE ADJUSTMENT OF THE CENTRAL RATES ON 23 MARCH 1981 INFRINGED ARTICLE 3 OF REGULATION NO 974/71 , PURSUANT TO WHICH SUCH AMOUNTS ARE ALTERED IN LINE WITH THE CHANGE IN THE MONETARY DIFFERENCE SERVING AS A BASIS FOR THE CALCULATION OF THE COMPENSATORY AMOUNTS , IF THAT DIFFERENCE CHANGES BY AT LEAST ONE POINT FROM THE PERCENTAGE TAKEN AS A BASIS FOR THE PRECEDING DETERMINATION .

19 IT SHOULD BE STATED IN THIS RESPECT THAT , ALTHOUGH THE SAID PROVISION REQUIRES THE COMMISSION TO ALTER THE COMPENSATORY AMOUNTS ONCE THE CONDITIONS HAVE BEEN MET , IT DOES HOWEVER LEAVE IT A CERTAIN DISCRETION IN CHOOSING THE TIME AT WHICH TO IMPLEMENT THE ALTERATIONS .

20 THAT FOLLOWS BOTH FROM THE TERMS AND FROM THE PURPOSE OF REGULATION NO 974/71 . ARTICLE 3 OF THAT REGULATION MENTIONS NO PERIOD WITHIN WHICH THE ALTERATION OF THE MONETARY COMPENSATORY AMOUNTS MUST BE EFFECTED , WHICH IMPLIES THAT THE ALTERATION NEED NOT BE IMMEDIATE BUT THAT THE COMMISSION HAS A REASONABLE PERIOD ALLOWING IT TO TAKE ITS DECISION ON THE BASIS OF THE MOST RELIABLE INFORMATION . IN PRACTICE , AS THE COMMISSION POINTS OUT IN ITS OBSERVATIONS , IT HAS AS A RULE BROUGHT THE NEW COMPENSATORY AMOUNTS INTO EFFECT FROM THE MONDAY OF THE WEEK FOLLOWING THAT IN WHICH THE MONETARY EVENT IN QUESTION TOOK PLACE . IN THIS CASE , THAT DATE WOULD BEEN 30 MARCH 1983 .

21 IT MUST ALSO BE ADDED IN THIS CASE THAT A COUNCIL DECISION ADJUSTING THE REPRESENTATIVE RATES WAS IMMINENT AND THAT A REGULATION TO THAT EFFECT CAME INTO FORCE ON 6 APRIL 1981 , THAT IS TO SAY TWO WEEKS AFTER THE ALTERATION OF THE CENTRAL RATES .

22 AS THE COURT HAS RECOGNIZED IN AN ESTABLISHED BODY OF CASE-LAW , STARTING WITH THE JUDGMENT OF 24 OCTOBER 1973 ( CASE 5/73 BALKAN ( 1973 ) ECR 1091 ), THE ESTABLISHMENT OF COMPENSATORY AMOUNTS WAS INTENDED TO MAINTAIN THE SINGLE-PRICE SYSTEM , THE BASIS OF THE PRESENT ORGANIZATION OF THE MARKETS , THUS AVOIDING A DISORGANIZATION OF THE SYSTEM OF INTERVENTION PRICES AND MAINTAINING NORMAL PATTERNS OF TRADE IN AGRICULTURAL PRODUCTS BOTH BETWEEN THE MEMBER STATES AND WITH NON-MEMBER COUNTRIES . THE COMPENSATORY AMOUNTS CAN BE APPLIED THEREFORE ONLY IN SO FAR AS THE MONETARY MEASURES REFERRED TO INVOLVE DISTURBANCES IN TRADE IN AGRICULTURAL PRODUCTS .

23 THAT PURPOSE WOULD HAVE BEEN COMPROMISED AND THE EFFECTIVENESS OF THE COUNCIL RULES WOULD HAVE BEEN SET AT NOUGHT IF THE COMMISSION HAD ADJUSTED THE COMPENSATORY AMOUNTS DURING THE BRIEF PERIOD BETWEEN THE ALTERATION OF THE CENTRAL RATES AND THE ADAPTATION OF THE REPRESENTATIVE RATES . IN THAT CASE , AS THE COMMISSION HAS POINTED OUT IN ITS OBSERVATIONS , THE LEVEL OF COMPENSATORY AMOUNTS ON IMPORTS INTO ITALY WOULD HAVE GONE FROM -1.7 , THE LEVEL APPLICABLE ON 23 MARCH , TO -7.2 FROM THAT DATE , ONLY TO RETURN TO -1 FROM 6 APRIL 1981 , FOLLOWING THE PARTIAL ALIGNMENT OF THE REPRESENTATIVE RATES OF THE LIRA ON ITS CENTRAL RATE . HOWEVER , SUCH A DEVELOPMENT WOULD NOT HAVE BEEN LIKELY TO MAINTAIN THE PATTERNS OF TRADE , BUT , ON THE CONTRARY , MIGHT WELL HAVE ARTIFICIALLY CREATED DISTURBANCES BY GIVING RISE TO SPECULATIVE MOVEMENTS AND , HENCE , DISTORTIONS IN PATTERNS OF TRADE .

24 UNDER THOSE CONDITIONS , THE SUBMISSION ALLEGING THE INFRINGEMENT OF REGULATION NO 974/71 MUST BE REJECTED .

25 THE APPLICANT ALSO ALLEGES AN INFRINGEMENT OF THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION , A GENERAL PRINCIPLE OF COMMUNITY LAW . THAT PRINCIPLE IS INFRINGED IN THIS CASE , IT IS CLAIMED , BECAUSE , CONTRARY TO ESTABLISHED PRACTICE , THE COMPENSATORY AMOUNTS WERE NOT ADAPTED IN GOOD TIME TO THE CHANGE IN THE PARITIES OF THE LIRA .

26 IN THIS CONTEXT , IS SHOULD BE EMPHASIZED IN THE FIRST PLACE , AS THE COURT HAS ALREADY STATED IN ITS JUDGMENT OF 15 MAY 1975 , CITED ABOVE , THAT THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS CANNOT BE CONSIDERED AS GUARANTEEING TRADERS AGAINST THE RISK OF CHANGES IN THE RATES OF EXCHANGE . TO THAT MUST BE ADDED THAT IN THE PRESENT CASE , AS THE TRADERS CONCERNED COULD NOT HAVE BEEN UNAWARE , NEGOTIATIONS WERE IN PROGRESS AT COUNCIL LEVEL WITH A VIEW TO AN ADJUSTMENT OF THE REPRESENTATIVE RATES SO AS TO AVOID AN INCREASE IN THE COMPENSATORY AMOUNTS , AND IT WAS PRECISELY BECAUSE AN IMMINENT DECISION OF THE COUNCIL TO THAT EFFECT WAS AWAITED THAT COMMISSION REGULATION NO 801/81 , FREEZING THE COMPENSATORY AMOUNTS DURING THE WEEK OF 30 MARCH TO 5 APRIL 1981 , WAS INTRODUCED , AS MAY BE SEEN MOREOVER FROM THE PREAMBLE THERETO .

27 UNDER THOSE CONDITIONS , THE APPLICANT COULD NOT LEGITIMATELY EXPECT THAT THE COMPENSATORY AMOUNTS WOULD BE MODIFIED BEFORE THE COUNCIL HAD ADJUSTED THE REPRESENTATIVE RATES . THIS SUBMISSION MUST THEREFORE ALSO BE REJECTED .

28 FINALLY , THE APPLICANT ALLEGES A BREACH OF THE PRINCIPLE OF NON-DISCRIMINATION , LAID DOWN IN THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE TREATY , INASMUCH AS THE COMMUNITY LEGISLATURE HAS NOT LAID DOWN AN ' ' EQUITY CLAUSE ' ' FOR SITUATIONS LIKE THOSE IN THE PRESENT CASE AND HAS NOT ALLOWED FOR ADVANCE FIXING OF COMPENSATORY AMOUNTS IN INTRA-COMMUNITY TRADE .

29 IT POINTS OUT IN THIS CONTEXT THAT WHERE A MONETARY MEASURE BRINGS ABOUT AN INCREASE IN THE COMPENSATORY AMOUNTS , THE MEMBER STATE INVOLVED IS AUTHORIZED NOT TO COLLECT THE COMPENSATORY AMOUNTS OR THAT PART OF THEM CORRESPONDING TO THE INCREASE , ON IMPORTS OR EXPORTS CARRIED OUT PURSUANT TO CONTRACTS FIRMLY CONCLUDED BEFORE THE MONETARY MEASURE WAS INTRODUCED PURSUANT TO COMMISSION REGULATION NO 926/80 OF 15 APRIL 1980 ON EXEMPTION FROM THE APPLICATION OF MONETARY COMPENSATION AMOUNTS IN CERTAIN CASES ( OFFICIAL JOURNAL , L 99 , P . 15 ). ON THE OTHER HAND , NO COMPARABLE EQUITY CLAUSE IS PROVIDED FOR CASES IN WHICH THE COMPENSATORY AMOUNTS ARE REDUCED OR ABOLISHED BY VIRTUE OF A DEVALUATION OF THE CURRENCY OF PAYMENT . FURTHERMORE , IF ADVANCE FIXING OF THE AMOUNTS IS ALLOWED IN TRADE WITH NON-MEMBER COUNTRIES , PURSUANT TO COMMISSION REGULATION NO 243/78 OF 1 FEBRUARY 1978 PROVIDING FOR THE ADVANCE FIXING OF MONETARY COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL , L 37 , P . 5 ), SUCH A POSSIBILITY IS NOT AVAILABLE IN TRADE BETWEEN THE MEMBER STATES .

30 AS THE COURT HAS POINTED OUT ON MANY OCCASIONS , MOST RECENTLY IN THE JUDGMENT OF 15 JULY 1982 ( CASE 245/81 EDEKA ( 1982 ) ECR 2745 ), THE PROHIBITION OF DISCRIMINATION CONTAINED IN THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE TREATY IS MERELY A SPECIFIC ENUNCIATION OF THE GENERAL PRINCIPLE OF EQUALITY WHICH IS ONE OF THE FUNDAMENTAL PRINCIPLES OF COMMUNITY LAW . THAT PRINCIPLE MEANS THAT LIKE SITUATIONS SHOULD NOT BE TREATED DIFFERENTLY UNLESS SUCH DIFFERENT TREATMENT IS OBJECTIVELY JUSTIFIED .

31 THE COMMISSION HAS ALLEGED IN THAT RESPECT THAT THE EQUITY CLAUSE HAD BEEN INTRODUCED , ON AN EXCEPTIONAL BASIS , TO REDUCE THE EFFECT OF THE ADDITIONAL FINANCIAL BURDEN BORNE BY TRADERS ON IMPORT OR EXPORT . THAT CANNOT BE ASSIMILATED TO A SIMPLE LOSS OF PROFIT RESULTING FROM THE FRUSTRATION OF HOPES FOR AN INCREASE IN THE COMPENSATORY AMOUNTS . ON THE OTHER HAND , THE SYSTEM OF ADVANCE FIXING OF COMPENSATORY AMOUNTS APPLICABLE TO TRADE WITH NON-MEMBER COUNTRIES , WHICH ALSO IMPLIES THE ADVANCE FIXING OF REFUNDS , COULD NOT BE EXTENDED TO INTRA-COMMUNITY TRADE WITHOUT RUNNING THE RISK THAT TRADERS MIGHT ABUSE THE ADVANCE FIXING FOR PURELY MONETARY CONSIDERATIONS .

32 IN THOSE CIRCUMSTANCES , THE COMMISSION CANNOT BE ACCUSED OF ACTING ARBITRARILY IN APPLYING DIFFERENT TREATMENT TO THE SITUATIONS IN QUESTION .

33 THIS SUBMISSION MUST THEREFORE ALSO BE REJECTED .

34 AS THE APPLICANT HAS BEEN UNSUCCESSFUL IN ALL ITS SUBMISSIONS , THIS APPLICATION MUST BE DISMISSED .

COSTS

35 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING .

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

ON THOSE GROUNDS ,

THE COURT ( FIFTH CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE APPLICANT TO PAY THE COSTS .