C-26/81

In Case 26/81

SA OLEIFICI MEDITERRANT!, based at Quihano (Italy), represented by E. Jakhian of the Brussels Bar, with an aduress tor service in Luxembourg at the Chambers oi E. Arendt. Centre LouMgnv. 5 4 / B / I V Rue Philippe-II, applicant,

JUDGMENT OF 29. 9. 1982 — CASE 26/81

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 Bräutigam, 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. Séché, 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 Montako, Jean Monnet Building, Kirchberg, defendant,

JUDGMENT

Facts and Issues

I — Facts and written procedure (iii) As far as trade with non-member countries was concerned, imports were subject to a levy which was 1. The legisUtive context designed to bring the price of olive The Communities' olive oil market oil up to the Community level displays certain characteristics which (Article 13), whilst exports ben- explain why, as pan of the common efited from a refund whenever the organization of the market in oils and price within the Community was fats, olive oil is governed by a system higher than the world price (Article which, on certain points, makes ad hoc 18). That is why licences were required for both importation and provisions. exportation and were issued only against a deposit which was (a) The system prior to the 1978 reform forfeited in whole or in part if the Regulation No 136/66/EEC of the transaction was not effected within Council of 22 September 1966 the period of validity of the licence, establishing a common organization of or ifit was only partially so effected the market in oils and Tats (Official (Article 17 as amended by Regu- Journal, English Special Edition 1965- lation (EEC) No 2554/70 of the 1966, p. 221) had laid down the main Council of 15 December 1970: rules for olive oil: Official Journal, English Special Edition [1970] III, p. 866); (i) Single prices for the Community were fixed by the Council for each marketing year (running from 1 (iv) Still in the context of trade with November to 31 October of the non-member countries, there is a following year): they were in- specific system of refunds known as creased in monthly steps over the "Exim", which was created by 1C months following 1 January in Regulation No 171/67/EEC of the order to regularize the market Council of 27 June 1967 on export whilst avoiding the sale of the refunds and levies on olive oil. The whole hanest to the intervention svstem is expressly set forth in agencies as soon as the marketing Anicie 9(1), which provides as year had opened (Anicie 4); follows:

The conditions under which importation may be permitted free of levy are However, when the Council in February stipulated by Regulation (EEC) No 1979 observed that there were still 2041/75 of the Commission of 25 July difficulties, it introduced Regulation No 1975 on special detailed rules for the 360/79 of 20 February 1979 amending application of the system of import and Regulation (EEC) No 3088/78 in respect expon licences and advance fixing cer- of the periods of application of the tificates for oils and fats (Official Journal 1978/79 marketing year of the rep- 1975, L 213, p. 1). resentative market prices and of the threshold prices for olive oil (Official Journal 1979, L 46, p. 1), whereby it (b) The 1978 reforms decided to extend the former prices by one month and therefore not to bring By Council Regulation (EEC) No the new prices into force until 1 April 1562/78 of 29 June 1978 amending 1979. Regulation No 136/66/EEC (Official Journal 1978, L 185, p. 1) the system relating to olive oil was amended, but Consequently, from 1 April 1979 not abolished: single prices continued to onwards, the threshold price fell by be fixed annually, and trade with non- 25.99 u.a. per 100 kg of olive oil, which member countries remained as it had meant that the levies declined pro- been, so that the "Exim" system under- portionately. As the levy could be fixed went no revision. The only fundamental in advance, the Commission adopted, in amendment was the creation of a Regulation (EEC) No 884/79 of 3 May consumption aid (Article 11) which was 1979 adjusting the amount of the levies due to the fact that, since 1975, the applicable in the olive oil sector (Official system of production aids had been Journal 1979, L 111, p. 18), transitional proving unsatisfactory. Thus olive oil measures designed to reduce the levy has, since 1978, qualified not only for payable upon those quantities of olive oil production aid but also for consumption subject to the system of fixing by the aid. tendering procedure and imported after 1 April 1979 under certificates for which Owing to the difficulties in operating the application had been made before that system for verifying eligibility for date. The reduction in question consumption aid, it was impossible to amounted to approximately 24.18 u.a. bring these new provisions into force on per 10C kg, which is more or less the I November 1978. For that reason same as the margin by which the Council Regulation (EEC) No 3088/78 threshold price was reduced, namely of 19 December 1978 fixing for the 25.99 u.a. per 100 kg. I97K/79 marketing vrar the represen- tative market pnce and threshold pnce for olive oil and the percentage of No transitional measure relating to the consumption aid referred to in Article 11 "Exim" system was adopted with respect (3) of Regulation No 136/66/EEC laid to quantities of oil imported after 1 April down prices which were to prevail for 1979. Thus traders who opted for the the penods from 1 January to 28 "Exim" system and who exported olive

It is undisputed that those impons were 2. The facts carried out at a price of approximately LIT 1 630 per kg, although the Since there is no agreement as to the Commission claims that this price was facts it is necessary to record them as slightly higher than the Spanish offer stated in the arguments of the parties. prices recorded for the same period on According to the applicant, the damage the world market. it has suffered related to a quantity of 194.805 tonnes exponed and imponed Once imponed, the oil was resold within under the "Exim" system. the EEC at approximately LIT 1 900 per kg· The documentary evidence and the memorandum concerning the damage That being so, the applicant's "damage" suffered ("note relative au prejudice — which the Commission describes as subi") disclose that the applicant sold "reduced profit" — is equivalent to the 268 tonnes of olive oil to the National difference between the average price of Supply Corporation of Libya, and oil on the Community market, namely invoiced this quantity on 27 January LIT 1 750 per kg, and the resale price to 1979 at the price of LIT 1 23C per kg, Libya, namely LIT 1 230 per kg. That whereas the average price for olive oil difference (approximately LIT 520 per sold on the home market was approxi- kg), in relation to a quantity of approxi- mately LIT 1 72C per kg. mately 190 tonnes, amounts to about one hundred million lire. The applicant, The Commission maintains that this however, maintains that the loss is initial phase of the "Exim" operation is approximately LIT 120 000 000, on the debatable, since in the absence of a grounds that the loss per kilogram relevant expon certificate, the invoice amounts to LIT 70C whilst the quantity produced "can hardly be identified as imponed was 194 tonnes, the equivalent the one which in fact related to the of a quantity of 175.5 tonnes exponed, exponation of 19C tonnes under the given that 1 kilogram exponed entitles 'Exim' system". the trader — according to the applicant — to impon 1.10 kg free ot levy. The As far as imponation is concerned, the applicant does none the less concede, on applicant has attached to us application page 4 ot its memorandum on the two impon certificates covering damage suffered bv it, that the loss upon altogether lQ4 805 tonnes. *hich expired exponation is in the region of LIT 503 respectively on 3C Mav 1979, as regards per kg 33 tonnes, and on ÒZ June l q 79, as regards 161 tonnes The applicant The Commission contends that the loss further produces, as an annev to its in question, ot LIT bll per kg, has to be reply, seven invoices relating to viewed in conjunction with the amount purchases of olive oil in Spain *hich of export refund which the "Exim" were made between 12 May and 13 June trader has foregone, namely LIT 277 per 1979. According to the Commission. kg Consequents, if the applicant had

not foregone the expon refund it would, II — C o n c l u s i o n s of the parties in the Commission's view, have accepted a reduced profit amounting to 520 — 277 « LIT 243 per kg. The applicant claims that the Court should: The applicant calculates that, upon importation, it realized a profit on only Declare the application admissible and LIT 233 per kg, (that is, LIT 1 900 well founded; consequently, order the minus LIT 1 612 minus costs) since the European Economic Community, rep­ resale within the EEC had been carried resented bv its organs, namely the out without the benefit of consumption Council of Ministers and the Com­ aid. Thus it claims to have made a profit mission, to pay the applicant by way of of LIT 42 000 000. damages the sum of 50 629 European currency units together with interest The Commission contests the figure of thereon at 8 % from 4 May 1979 until LIT 1 900 per kg in respect of the resale the date on which judgment is given; within the EEC. It maintains that the figure has been merely put forward Order the European Economic Com­ without any supporting evidence, not­ munity to pay the costs. withstanding the four invoices produced to the Court by the applicant. In the The Council contends that the Court Commission's opinion, the selling price should: in the EEC lay between LIT 2 507 and LIT 2 780 per kg. Thus, even if the applicant had not been in receipt of Dismiss the application as unfounded consumption aid, it could or should have and order the applicant to pay the costs. sold the olive oil at between LIT 2 200 and 2 480 per kg. The Commission contends that the Court should: The Council notes that the resale prices fluctuate considerably (between LIT (a) Dismiss the application; 1 590 and 1 940) without any explana­ tion being given for this. Without going (b) Order the applicant to pay the costs. into detail, the Council wonders generally if the pnces quoted by the applicant are truly representative of normal commercial transactions so far as Ill — S u b m i s s i o n s and argu­ price levels are concerned. It further ments of the parties considers thai any comparison between a quantity exponed totalling 8 C00 tonnes — being the total exported to Libva — A — Admissibility and imports of onlv 20 tonnes at a time — the importation of 19* tonnes being made up ot a number of consignments ot In its defence, the Council, without 2Z tonnes — is bound to be misleading raising any obļection to the admissibility of the action as such, none the less Upon hearing the repon of the Judge- expressed doubts as to whether the Rapporteur and the views of the application was compatible with the Advocate General, the Court decided to requirements of Article 38 of the Rules open the oral procedure without anv of Procedure. However, on having sight preparatore mqum of the documents annexed to the

That being so, the applicant claims that it need do no more than show that the (a) The applicant's main argument is to regulation at issue is defective, without the effect that the restrictive conditions having to demonstrate that it amounts to imposed by the Court in other cases for a serious breach of a superior rule of law the purpose of establishing liability in for the protection of the individual. connection with the legislative function are not applicable in this case. According to the applicant, the Court has always connected the existence of the restrictive The Commission rejects that line of conditions which it has formulated — argument. In its view, the legal basis for particularly in its judgments of 2 the regulation at issue is Article 16 (6) of December 1971 (Schòppenstedt, Case Regulation No 136/66 of the Council, 5/71, [1971] ECR 391) and of 13 June which provides that the detailed rules for 1972 (Compagnie d'Approvisionnement the application of that Article are to be and Grands Moulins de Pans, Joined adopted in accordance with the Cases 9 and 11/71 [1972] ECR 391) - procedure laid down in Article 38. The with the obsenation that the contested purpose of the provision is therefore to ruies constituted "a legislative measure enable the Commission to adopt involving choices of economic policy". measures in regard to the fixing of the impon levy, with which Article 16 is concerned, yet without requiring the Commission to exercise its powers. Even though Regulation No 884/79 does constitute a legislative measure it does not involve, according to the applicant, any choice of economic poliev When the Commission chose both to since such choice was, in this case, in the grant to "cash" traders an adiustment of hands of the Council and found the levy which had been fixed in advance expression in the regulations adopted by and to withhold those benefits from the latter in 1978. The applicant takes "Exim" traders, it did so in exercise of the view m regard to this point that the its economic discretion.

Furthermore, if the Commission had breach" of the general principle of been bound to exercise its powers the equality of treatment and of non-dis- applicant would have had to seek the crimination. alleged illegality in a measure adopted by the Council, whereas the applicant brings no charge of illegality against the Turning to the Commission's argument Council's regulations. which seeks to show that the two situations described are not comparable, the applicant admits that differences do (b) In the alternative, the applicant exist, but that they are not such as to maintains that, even allowing that the justify the inequality of treatment which Commission can become liable only on it denounces. By applying a distinction the basis of the more restrictive which confers a greater general conditions mentioned above, it must be advantage upon the trader operating conceded that such conditions are met in under the "Exim" system, the

offset by the "advantage derived from the converse operation, namely import- ation. 1. The principle of equality of treatment and non-discrimination Thus, the only objective difference between the two situations arises from a The applicant considers that in Regu- differentiated amendment of the prices lation No 884/79 the Commission has respectively within and outside the confined itself to providing for an appro- Community, so that the "Exim" trader priate reduction in the levies applicable incurs a moderate risk offset by an to quantities of olive oil imported on and equally moderate chance of profit, after 1 April 1979 on the strength of according to whether the gap between certificates for * which application had the two prices widens or narrows. been made before that date, thereby

Unless there the applicant's submission, objectively were transitional measures in his favour, comparable, the introduction of such a the "Exim" trader would have to resign differentiation in treatment constitutes a himself to not setting off the loss on "manifest disregard" and "a senous exponation against the anticipated

advantage upon importation, and his the levy. To that extent the "cash" only choice would then lie between trader's commitment holds good for a incurring a loss at the outset or a loss as given legal situation and, when that a result of reselling imponed quantities situation changes fundamentally as a at a price lower than expected. Such a result of an amendment to Community loss would be out of proportion to the rules, it is proper that it should be taken margin of risk normally accepted by the into account, since otherwise the trader "Exim" trader. Thus, although it is true would suffer a pecuniary loss equivalent that the latter is free to choose this to the amount by which the levy has system, he does so by reference to a been changed. margin of risk or profit which has nothing in common with the certain loss arising from a serious decline in the Community price, as occurred in the On the other hand, the situation of the applicant's case. "Exim" trader is, according to the Commission, totally different. In the case of an importation and an exportation carried out before 1 April 1979, the Finally, as far as the arguments on trader would — upon exportation — Communiry price trends are concerned, have purchased on the Community the applicant considers that the point at market at the Community price (about which the discriminatory character of the 145 u.a.), but would have forgone the regulation at issue should be judged is refund (24 u.a.); upon importation he the date of its adoption: subsequent would have purchased at the world price trends in the Community price are, in (about 95 u.a.) whilst enjoying an themselves, irrelevant to this analysis. exemption from the levy (52 u.a.), in order to resell at the Community price (about 145 u.a.). Thus the choice made by the "Exim" trader is usually such as to give him a general advantage over the The Commission contends that the "cash" trader. difference in its treatment of the "cash" trader on the one hand and the "Exim" trader on the other is based on the finding that the two situations are not comparable. Admittedly, that advantage was reduced in cases where the "Exim" trader, having exported prior to 1 April 1979, chose not to impon until after that date, since the Where a "cash" trader, after carrying Community price at the time of import- out an export attracting a cash refund ation stood at no more than about 120 (24 u.a.). decides io impon an equivalent u.a.. even though, in the Commission's quantity of oiivc oil under the system opinion, that is not certain in view of the whereby the levy is determined in rise in prices which in fact took place in advance, he has to pay this lew at a level the Communis after 1 April 1979. which has to remain constant throughout the duration of the validity of the cer- tificate, since that trader wishes to tane precautions against an economic risk, Whilst conceding that the lew was namely a fluctuation in the prices reduced from 52 to 32 u.a., the recorded on the market, such risk Commission stresses, however, that the involving an appropriate amendment of amount of the exemption granted to the

The Commission adds that, whereas the intention of the "cash" trader is to take precautions against an economic risk, the The applicant, whilst recognizing it was "Exim" trader enters upon a speculative foreseeable that a new system would venture whereby he waives one supplant the former one, nevertheless advantage in exchange for another which maintains that the date on which the new he reckons will be superior. system was to enter into force had not been disclosed: as the Council itself had put back the date twice, the "Exim" traders were unable to establish or even to calculate the date of the amendment. That being so, the Commission takes the view thai no reduction in the levy is required for the benefit of a trader whose speculation proved to be less prof- itable than he might have hoped, Observing that the "Exim" system was especially when he was free io choose not suspended during ihis period of the time of importation uncertainty, the traders in question could legitimately expect that the adminis- tration would either adopt appropriate transitional measures or else suspend the system so as to prevent those traders Moreover, e^en if the Commission had from incurring heavy losses. wished io introduce a transitional measure in favour of "Exim" traders as well, it could not have adopted the meihod of calculation used in the case of "cash" exponers The onlv expedient in In reply to the Commission's arguments such a case would have been a fiction regarding the foreseeability of the entry

OLEIFICI MEDITERRANEI v EEC

The Commission contends that the The applicant maintains that, although applicant could not have been unaware Regulations Nos 15o2/78. 3088/78 and

JUDGMENT OF 29. 9. 1982 — CASE 24/81

liability without fault to embark upon a discussion of the principle, it has not, on the other hand, According to the applicant, the non- repudiated the principle itself, as clearly contractual liability of the Community set forth in the Compagnie d'Approvi- may arise where there is serious and sionnement judgment. exceptional damage amounung to a breach of the principle of the equality of The applicant maintains that in any all citizens in sharing public burdens. event, contrary to the Council's contentions, the general principles The principle rests, in the first place, common to the laws of the Member upon the fact thai the second paragraph States (referred to in the second of Article 215 of the EEC Treaty does paragraph of Article 215) make it not stipulate that the damage must have possible to confirm the existence of the been due to a fault on the part of the liability of public authorities in respe« of institutions or their servants. The term legislative measures and, in particular, of "fault" appeared in the first draft of statutes whenever a citizen suffers Article 215 and was deliberately deleted special, serious and exceptional damage. from the final draft, which serves to demonstrate that the authors of the In this regard, the applicant observes in Treaty did not wish to rule out the the first place that there is, in its view, a possibility of liability without fault. The qualitative difference between a national purpose of Article 215 was to entrust to statute and a Community regulation. the Court the task of formulating the Although the latter constitutes the principles applicable in this field. Community's "legislation" such legis- lation is not, unlike domestic law, the

OLEIFICI MEDITERRANEI v EEC

genera! legal principles which make it (a) The measure in question must be possible to confirm the existence of the unlawful; principle of liability without fault. Whilst it is true that not all Member States recognize the existence of such liability, (b) Such unlawfulness must amount to a the applicant considers, with regard to sufficiently serious breach of a non-contractual liability, that an analysis superior rule of law for the of national legal systems may not be protection of the individual; reduced to a quest for "the highest common denominator" whereby the only (c) The institution's conduct must "common" principles are those expressly disclose errors so serious that it may­ and without reservation enshrined in the be described as arbitrar)·. legislation or case-law of each of the Member States. Such an approach would amount to bringing Community law into Thus, in the Council's view, the principle line with the "most impoverished" of the of liability without fault for legislative national legal systems. Unanimity is measures does not exist in Community therefore unnecessary. The finding that law. Neither is it enjoined upon the liability without fault has been Community by the reference in Article recognized by some of the Member 215 to the laws of the Member States, States, though not by others, is sufficient the reason being that such a principle is for that principle to apply in Community not generally recognized in those laws as law. a whole.

JUDGMENT OF 29. 9. 1982 — CASE 26/81

liability. The Council also recalls that the the loss alleged in the present case does Court had always justified this narrow not appear to be so serious as to exceed view by holding that the legislative the reasonable limits to which the Court authority "cannot always be hindered in referred in the HNL case and that, at all making its decisions" (paragraph 5 of the events, the loss has not threatened the judgment in Bayerische HNL Vermehr- survival of the applicant's business. Thus,

tions of the Community. In this instance, act as an "informed and prudent trader". non-contractual liability on the part of The applicant's answer to the Council is the Community »hich is modelled to an the same as its answer to the excessive degree upon the particular Commission under the heading "The characteristics of a given national svstem principle of legitimate expectation", of la* might represent a solution which namely that, faced with the uncertainty uould be unacceptable to other, and as to the date of entry into force of the different, national laws What is more, it new system and with the Council's vacil- follows from the wording of Article 215 lations, suiuble transitional measures

were imperative in order to avoid the lations provide precisely the legal bases paralysis of the "Exim" system. needed to enable transitional measures to be introduced if necessary. The Council contends that only if the amendment is sudden and unforeseeable and if there is no overriding public D — Damage suffered and causal interest to the contrary can transitional connection measures be required for "old contracts". The applicant claims that it is the fall in the threshold price which constitutes the In the present case, however, it had been damage suffered, such damage having foreseeable from 7 July 1978 onwards being caused by the adoption of that the olive-oil prices were going to be the aforementioned regulations and adjusted in the near future following the amounting to 25.99 u.a. multiplied by introduction of the new consumption-aid 1 948.05, giving 50 629 u.a. if the

The lations. That being so, the Council is of applicant is content to leave the matter the opinion that the damage of which the to the discretion of the Court. applicant complains could in any case have been avoided by a prudent trader The applicant adds that the damage it who had taken the necessary pre- has suffered is special inasmuch as the cautions. applicant was probably alone in having found itself in the situation which has It follows from these factors that the given rise to the present dispute. Furth-

Department. The damage suffered is therefore by no means commensurate Lastly, the Council maintains ihat the with the normal risks inherent in a applicant cannot validly maintain that the commercial activity. Council's regulations had, for lack or any transitional measures relating to it, As for the defendants' argument to the caused the applicant serious and effect that the applicant has failed to exceptional damage, since those regu- prove a causal connection, the applicant

repeats that the cause of the damage deliberately put itself in that situation incurred by it is attributable to the and in having speculated that a succession of regulations which were transitional measure would be introduced adopted by the Council and the by the Commission. Commission and in particular to the absence of any transitional measures in the Council's regulations, and to the On the subject of the extent and discrimination contained in the Com- quantum of the damage, the Commission mission's regulation. In the applicant's maintains that the applicant has view, the only counter-argument attempted to circumvent the duty adduced by the defendants in this incumbent upon it in an action based on context is afforded, in a somewhat Article 215, namely that of proving the oblique manner, by the assenion that the alleged damage.

Finally, in reply to the defendants' reflect the fall in the guaranteed price arguments regarding the assessment and which was due to the introduction of the quantum of the damage, the applicant reform. reiterates that the very principle of transitional measures benefiting "cash" traders implies necessarily that the latter Consequently, the applicant has been received compensation which was equal unable to establish any connection to a given tall in Community prices. between the alleged unlawfulness of a Hence the damage could be quantified in measure adopted by the Commission and the manner already suggested and could damage which it claims to have suffered. indeed be calculated in European units of account, since what is really in question is an assessment and not a The Council maintains that the applicant refund of a sum paid in error, the has not proved the damage incurred by it amount of »hich would be definitivelv except in abstact terms, whereas Article fixed 215 requires it to prove the existence and extent of that damage by reference to the level of the prices which it actually The Commtuton contends that, as the received. In fact, given the difficulties

According to the Council, it is necessary, for the purpose of proving speciiic damage, to argue in As regards the special nature of the terms of the difference between the real alieped damape. the Commission market price expressed in national observes that u is more correct to say currency and not in units of account, that me applicant is alone in having especially as the latter merely constitute

2 Since it is by reference to its regulations that the C o m m u n i t y ' 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.

JUDGMENT OF 29. 9. 1982 — CASE 26/8!

3 Regulation N o 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 svstem of trade with non-member countries was supplemented by Regu- lation 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:

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 stan 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 uniu 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 Regu- lation (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).

M The applicant admits that it was foreseeable by all the traders that the intro- duction 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 imponed 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.

c 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.

M 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 enabie the Commission to adopt measures fixing the ievv m compliance with the procedure set forth in Anicie 38, in consultation wuh the Management Commiuee tor 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 apains: an economic risk bv fixing his levy in advance, the "Exim" trader, on the contran, agrees to accept such a risk by embarking upon a speculative \eniure which entails foregoing one advantage in exchange for anomer, potential advantage which he expects to be greater. That difference ļustifies the tact that no transitional measure was adopted in favour of "Exirr." traders

JUDGMENT OF 29. 9. 1982 — CASE 24/81

is 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.

i6 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.

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 Regu- lation (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 regu- lations, must have known bv 27 January 1979, when it exponed 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 Communitv 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.

:> 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

T h e a c t i o n a g a i n s t the C o u n c i l

On those grounds,

THE COURT

hereby:

1. Dismisses the application;

2. Orders the applicant to pay the costs.

Menens de Wilmars Bosco Touffait Due Pescatore O'Keeffe Koopmans Everling Grévisse