1.

The Commission had stated to the French authorities with regard to the ‘intention to grant exemptions’ notified at the beginning of 1977 by the French Government, that contracts in genera) entered into before May 1975 when the system of compensatory amounts was in force in France did not justify the application of the provisions of Regulation No 1608/74.

2.

It had not been possible, ‘in view of this attitude of the Commission’, to grant exemption from the compensatory amounts in respect of the deliveries of sugar which had been made to the applicant under its contracts Nos S 125 and S 172 entered into in March 1975.

I —

The claim that the ‘decision’ taken by the Commission should be annulled.

Although the applicant does not specify the decision in question, it might well have been thought prima facie that it was the letter from the Commission dated 7 October 1977. This is not so, for the contested measure is ‘undoubtedly’ the notification contained in the telex message sent by the Commission on 25 February 1977 to the French Permanent Representation, mentioned by the Commission in its objection of inadmissibility and produced by it at the request of the Court. The passage is worded as follows:

The applicant claims that a reading of that document shows that there was indeed a ‘measure’ in which the Commission objected to the ‘intention’ of the French authorities to exempt certain contracts from the monetary compensatory amounts.

I agree with the Commission in thinking these claims inadmissible.

According to the applicant itself the said measure reveals the Commission's objection to the ‘intention’ notified by the French authorities to exempt from monetary compensatory amounts certain contracts ‘other than those concerned in the present case’ (observations of the applicant, p. 11). They relate in fact to contracts for processed cereals.

As a result:

As the applicant, with reference to the third and fourth recitals of the preamble to the regulation, observes, the latter is intended to protect traders from the damaging consequences which might result from the application of monetary compensatory amounts not on the basis of abstract assumptions but ‘in the particular circumstances of the case in point’.

It therefore appears to me that in the present case the French authorities rightly or wrongly declined to make use of the procedure provided for in Article 4, either because they thought that such a request was devoid of purpose or because they thought, as the applicant alleges, that the question was not of vital importance to them.

To agree that the opinion in question ‘comes within the scope of the procedure of Article 4 of Regulation No 1608/74’ does not mean that it constitutes a measure of direct and individual concern to the applicant. On the contrary, even if that opinion is evidence of an unfavourable attitude to the applicant's views, it was nevertheless necessary for the French authorities to manifest in some way their intention to exempt the contracts in question. The wording of Article 4 required the French Government to inform the Commission of its intention specifically to exempt those contracts; that is the condition subject to which the Management Committee procedure, provided for by that article, can if necessary be implemented.

So long as the French Government has not officially asked the Commission to give its views according to the procedure provided for in the regulation, it has not exhausted the preliminary powers which are its exclusive preserve and which are referred to in the Court's judgment of 2 March 1978, that being one of the conditions necessary for any application of the regulation to ensure natural justice.

It is not a question of considering whether the ‘opinion’ attributed to the Commission is lawful; even if the ‘principle’ that Regulation No 1608/74 does not apply to contracts entered into before May 1975 appears to be effective for all contracts entered into before that date, it was never in fact applied to the two contracts in question in the correspondence exchanged between the Commission and the French authorities; ‘application by analogy’ is not sufficient. It therefore does not seem to me possible to regard as admissible an application against a ‘measure’ of the Commission ratifying an ‘implied application’ to the applicant of a principle which the French Government righdy or wrongly considered to be correct. It would have been necessary ‘to inform the Commission of its intention’ to exempt the contracts in question, for it would then have clearly established who was responsible for the refusal to give exemption.

The applicant's advocate, who is very familiar with the case-law of the Court, relies on the judgment of 1 July 1965Töpfer ([1965] ECR 405). But that was a quite different case, namely that of a decision of the Commission which came into force immediately maintaining protective measures taken by a Member State, which decision was addressed to that Member State and published in the Official Journal.

On the other hand, no mention has been made of the judgment of 17 July 1959Phoenix-Rheinruhr ([1959] ECR 75). In that case, contrary to the opinion of Mr Advocate General Lagrange, the Court ruled that when the High Authority sends a letter to an auxiliary agency entrusted by it with the execution of certain precise functions, informing it of certain general principles, that letter may constitute a mere internal office directive, even if it was published in the Journal Officiei and if it refers to measures which the agency must take in regard to undertakings in the Community. In any event, this is true if it emerges from the letter that the High Authority did not intend to take a decision. That case-law appears to me, a fortiori, applicable to the present case.

Just as the Commission did not ask the opinion of the French Government before replying to the applicant, the latter did not ask the Commission for a formal statement of its views. It is the lawfulness of the imposition of the monetary compensatory amounts by the French customs authorities that the applicant or his sellers ought to have questioned before the French courts and not the lawfulness of the alleged ‘measure’ by which the Commission objected to an ‘intention’ to grant exemption which had not even been formulated.

II —

Allow me to say, however, that the claim for compensation appears to me on the other hand prima facie admissible, though in my view obviously unfounded.

On the one hand, it is not possible to deem the Community liable for damage which, even assuming that it exists and is of such a nature as could give rise to any liability on the part of the Community, was caused primarily by the fact that the national authorities did not support the applicant's argument. According to the Court's case-law in Joined Cases 5, 7 and 14 to 24/66 Kampffmeyer and Others ([1967] ECR 245) the applicant should have exhausted all methods of recourse, both administrative and judicial, to obtain satisfaction from the French Government, even though the latter might well rely on the authority of the Commission.

Further, the fact giving rise to the imposition of the compensatory amounts in the present case was the completion of the customs formalities on export from France; the direct cause of the damage claimed by the applicant seems to me, however, to be the undertaking which it took upon itself to carry the burden of the compensatory amounts which must be (and normally are) paid by the seller. This, however, is a contractual term which cannot render the Community liable. Where the applicant has voluntarily put itself in that position it cannot rely on that fact to question the lawfulness of the refusal to grant exemption from the compensatory amounts or, assuming that it is shown that the Community is liable, to claim compensation against it for the alleged damage. There is no causal link between the action of the Community and the alleged damage.