C-264/81

composed of: O. Due, President of Chamber, C. Kakouris, U. Everling, Y. Galmot and R. Joliét, Judges,

Advocate General: C. O. Lenz Registrar: H . A. Rühi, Principal Adminstrator

gives the following

SAVMA v COMMISSION

JUDGMENT

Facts and Issues

By Regulation No 71/81 of 12 January The Commission agreed to suspend the 1981 (Official Journal L 11, p. 5) the sale until such time as the necessary Commission decided that the Italian verifications had been carried out. The intervention agency, Azienda di Stato lots were not drawn until 1 June 1981, per gli Interventi sul Mercato Agricolo when the five applicants in Case 232/81 (hereinafter referred to as "AIMA"), and the applicant this case were each should put up for sale some 33 000 allocated one lot. tonnes of virgin olive oil from intervention purchases made during the 1977/78 olive marketing year. On 3 August 1981, the Commission adopted Regulation No 2238/81 (Official Journal L 218, p. 27) which The oil had been put up for sale by repealed Regulation No 71/81 with tender as extra virgin olive oil on several effect from 13 January 1981. In the occasions but had not been sold. The preamble to Regulation No 2238/81 the Commission was of the opinion that the Commission declared that as a result of market situation on 12 January 1981 the delay in carrying out the sale caused appeared to be suitable for offering the by consideration of the above-mentioned oil for sale again. complaints, conditions on the olive oil market had altered so that to make the sale on the conditions originally laid The oil was put up for sale in six lots of down would result in serious disturbance about 5 500 tonnes each (Article 2) and on the market. The Commission the selling price was fixed at LIT 210 000 considered accordingly that it was per 100 kg (Article 4). necessary to cancel the sale in the overriding general interest.

At the request of the applicants in Case . 232/81 the President of the Court made The applicants commented on the infor- an order on 21 August 1981 partially mation supplied by the Commission in suspending the application of Article 10 a letter received by the Court on 19 of Regulation No 2239/81. The October 1982. applicants who submitted tenders in the new sale were required to pay only the amount which they would have had to The Chamber then requested the Italian pay under the terms of the sale pursuant Central Statistics Institute for infor- to Regulation No 71/81. Payment of the mation pursuant to Article 21 of the remainder was suspended until the Court Protocol on the Statute of the Court of had given judgment in the main Justice, and sent a second series of proceedings. questions to the Commission.

The applicant brought the present On 19 May 1983 the Third Chamber proceedings by an application lodged at heard evidence from Mario Guida, the Court Registry on 2 October 1981. Secretary-General of Fedoliva (Euopean Upon hearing the report of the Judge- Federation of Olive Oil Industries) and Rapporteur and the views of the Director-General of Assitol (Italian Advocate General, The Court initially Association of Olive Oil Industries). decided to open the oral procedure without any preparatory inquiry. However, it invited the parties to reply After closure of the preparatory inquiry, to certain questions and to furnish some and after hearing the report of the information. Judge-Rapporteur and the views of the Advocate General, the Court decided to The Commission replied to those assign the case for judgment to the Fifth questions and furnished the information Chamber.

(i) With regard to the action brought by the applicant for a declaration Ill — Submissions and argu- that Commission Regulations Nos m e n t s of the p a r t i e s 2238 and 2239/81 of 4 August 1981 (Official Journal, 4. 8. 1981) are A — Admissibility void: Declare the same to be admissible The Commission expresses serious doubts and well founded; as to the admissibility of the application. Regulation No 2238/81 repealed Regu- Consequently, annul those regu- lation No 71/81, which was a regulation lations and order the Commission to in the proper sense of the term. Regu- pay the costs; lation No 2238/81 is a management (ii) With regard to the action for measure relating to the olive oil market compensation brought by the which takes no special account of the applicant supplementing the action relatively few traders who might consider for annulment: themselves directly concerned. More- over, the applicants have not acquired Declare the same to be admissible individual rights. and well founded; Consequently, order the Com- Since the Commission is convinced that mission to pay the applicant the sum its action is well founded from the of LIT 268 420 000, subject to the economic and legal points of view, it right to amend the claim, together does not wish to insist on this aspect of with interest thereon at a rate to be the case which is a procedural matter fixed by the Court, and order the and which the Commission submits for Commission to pay the costs; the Court's consideration. (iii) With regard to the action for The applicant states that the under- compensation brought by the ap- takings to which lots were allocated plicant in the alternative, in the under the procedure laid down in Regu- event of dismissal of its action for lation No 71/81 are directly and annulment: individually concerned by the measure Declare the same to be admissible the purpose of which is to repeal that and well founded; regulation, even if Regulation No 71/81 was of a general nature at the time of its Consequently, order the Com- adoption. mission to pay the applicant the sum of LIT 1 342 100 000, subject to the The Commission itself has recognized right to amend the claim, together that by restricting the new sale by tender with interest thereon to be fixed to those traders. by the Court, and order the Commission to pay the costs. The Commission maintains that the content of the contested regulations is of The Commission contends that the Court a general and abstract nature. Their should: effects are in no way limited to the applicants but directly affect all other Dismiss the application for annulment as traders in the olive oil sector, who play possibly inadmissible and in any event in active role in the market in an agri- unfounded; cultural product subject to a common

The applicant points out that regulations The Commission points out that in- and decisions must be necessary in order tervention has the double purpose of to carry out the task assigned to the supporting the market price by institution adopting the measure, and withdrawing surplus quantities and of must satisfy the conditions laid down in putting the product back on the market the Treaty. when that appears to be appropriate, great care being taken to avoid disturbing the market. The purchases and sales carried out by the intervention The contested measures were not agency do not mereley constitute adopted in order to carry our the successive transfers of ownership. They Commission's tasks, nor were they must be regarded as "public law adopted in accordance with conditions relationships" which permit the public laid down in the Treaty. The authorities to withdraw from contractual Commission announced that it had obligations if the situation changes in cancelled the sale in the overriding such a way that the public interest can general interest because it would, if only be served if the contract is carried out, have caused serious rescinded or amended. disturbance on the market. However, the Commission's role as defined by Article 155 of the Treaty and by Regulation No 136/66 certainly does not include At Community level, the Commission protection of the overriding interest to considers that it has an obligation to the detriment of the individual rights of ensure that the common organizations undertakings and private persons. of the market continue to function correctly, and to that end to adopt any measures which may be necessary to avoid disturbances. Regulation N o 136/66 does not em- power the Commission to cancel the sale of olive oil because of subsequent changes in the market price. Neither the The Commission considered it essential Treaty nor the regulations implementing to cancel the sale of the olive oil because it permit the Commission to take a the procedure had taken longer than decision the purpose of which is to annul could have been foreseen and this led to a transfer of property. the sale taking place at a time when

market conditions were radically dif- in Regulation No 71/81 consisted of ferent from what they had been initially, several phases, followed by the allocation with the result that the sale would have of the goods by means of a registered seriously disturbed the olive oil market. letter signed by the Director-General of The Commission exercised the discretion AIMA. That letter of allocation closes which the Court has held it to have in the procedure and declares the person to regard to the management of difficult whom the lot has been allocated owner and complex economic matters. of it. It is also from the date of receipt of that letter that the person to whom the lot has been allocated becomes bound by the obligations arising from that At the time of the sale at LIT 210 000 allocation, that is, he must provide a per 100 kg, the intervention price guarantee and be present when the (December 1980) was about LIT containers are sealed. 200 000. The market price for refined oil was approximately LIT 220 000, which would have permitted a substantial profit to be made. Only then is the contractual relationship complete, since the public authorities have decided definitively that the After the delays in the tendering operation, which constitutes an act of procedure, conditions on the market had management of the olive oil market and radically changed. On the one hand, the not simply a sale which has no other 1980-81 harvest was much smaller than purpose, is appropriate. expected, and on the other, prices had increased to an unforeseeable degree, because of the lower production, the limited quantities of lampante grade olive It must be recognized that the oil available on the world market and, Commission has the power and the duty partly, because of the devaluation of the (confirmed by Article 12 (2) of Regu- green lira. lation No 136/66) to ensure, in the exercise of its discretion in economic matters, that agricultural management measures are appropriate, particulary The conditions of sale, which were when, as in this case, the applicant had already favourable, thus became un- no right of ownership. reasonably so, and that situation would have permitted a limited number of traders not only to make enormous profits at the expense of the European The applicant replies that the effect of taxpayer, but also to dominate the olive Article 42 of the Treaty is to exempt oil market in Italy by excluding from production of and trade in agricultural that market all other traders, who could products from the provisions governing obtain that type of oil only on much less competition except in so far as the favourable terms. Council has decided otherwise.

oil under conditions such that the market the future and it should have provided at the production stage is not disturbed. in the conditions of sale for possible corrective measures (at the risk of making the sale as unattractive as the The Commission's task is thus limited to earlier attempts). protecting the market, and therefore to protecting competition at the production- stage. It is sufficient to read the contested With regard to the situation in June and regulations to see that the Commission July 1981, the applicant does not accept did not take account of competition at the Commission's claims regarding the production stage, but only of the "radical" changes in the situation.

It would were the main considerations underlying have relied on the argument that risks the adoption of Regulation N o 71/81, are inherent in all economic activities. If are not relevant. the fact that the uncertainties of the economy turned out to be favourable to the successful tenderers was sufficient to The fact that the successful tenderers call any operation into question, the were obliged to refine the oil is also not element of legal certainty would dis- relevant because, on the one hand, the appear. oil could have been sold without being refined outside the Greek or Italian markets and, on the other, because that The parties exchanged observations re- obligation was not altered by Regulation garding the applicant's participation in No 2239/81. the application for the adoption of interim measures. With regard to the defendant's as- sessment of the situation, which was The applicant contests the Commission's made between December 1980 and argument that there is a new category of January 1981, the applicant considers individual rights not provided for in the that the Commission judged the Treaty and subject to a right of development of the market incorrectly. intervention on the part of the auth- Either the factors on which the orities. There are constitutional and Commission based its assessment at that legislative rules which provide expressly time appeared to it to be certain and it for ways in which the public authorities cannot oblige others to suffer the may encroach upon the rights of the consequences of its errors of judgment, individual. Unless utter arbitrariness is to or it was aware of the uncertainties for rule, the public authorities cannot be

There is nothing in the basic legislative In its rejoinder, the Commission observes provisions which permits the defendant that the rules on competition referred to to call purchases or sales into question. in Article 42 of the Treaty are those Once it has determined the conditions of contained in Article 85 and the following sale in the exercise of its discretion, the articles, applied to agriculture almost in Commission cannot evade the rules their entirety by Regulation No 17/62 of governing the intervention machinery the Council. Any lacunae were filled as and cause persons who are entirely the common organizations of the market blameless to suffer the consequences of were established, by ad hoc provisions an error of judgment. such as the one contained in Article 33 of Regulation No 136/66. The rules on competition laid down in the Treaty are thus applicable, but have no connection with Article 12 (2) of Regulation No With regard to the right of ownership 136/66. acquired by it, the applicant points to the use of the words "sell" and "sale" in Regulations Nos 136/66 and 2238/81. Even if the successful tenderers did not acquire ownership, they acquired a The distinction which the applicant seeks certain and irrevocable right to obtain to make between competition at the the oil allocated to them. The fact that production stage and competition at the the second sale was restricted to the six marketing stage is meaningless. A market tenderers who had taken part in the first is a unit the various stages of which sale constitutes the clearest possible influence one another. It is consequently proof that those rights were certain in necessaiy for the competent authorities the defendant's eyes. to have a wide discretion in the economic sphere to adopt essential measures. Article 12 (2) of Regulation No 136/66 is only one example of the power and duty of the Commission to The concept of "public law re- manage the market in the general lationship", which is peculiar to Italian interest. law, cannot override the principle clearly laid down by the Court that measures must not be retroactive, and that acquired rights and legitimate expec- tations must be respected. As to the accuracy of its economic assessment, the Commission denies that there was an error of judgment on its part. It has been shown that the market situation had altered in an entirely The Court has decided that a limited unforeseeable way. It is tendentious to retroactive effect is legitimate in certain say that the green lira was devalued by circumstances in the case of a general the Community authorities themselves.

To illustrate its arguments and prove that effected an expropriation, the Com- its fears were well-founded, the mission is of the opinion that the Commission gives the following infor- applicant's rights were adequately taken mation. The market price for lampante into account in relation to the public grade olive oil was about LIT 235 000- interest. 236 000 and was rising (it had reached about LIT 240 000 in March 1982) It was offered compensation in a special because of the persistent shortage on the form based, on the one hand, on the market, whilst the intervention price had public interest which was protected by increased rapidly, reaching LIT 242 000 virtue of the higher selling price and, on in March 1982. On the other hand, the the other, the private interest of the market price for refined oil has fallen applicant, which was not to be paid regularly since the oil purchased by the enormous sums of money as com- applicants in this case and in Case pensation but rather to obtain con- 232/81 was placed on the market. siderable quantities of olive oil on favourable terms so as to carry on its For that reason, other traders are in own production. The Commisson could difficulties. Because they are obliged to have offered the oil for sale again to a obtain supplies on the market at. a higher larger number of traders, which would price, they have had to reduce the price have further reduced the opportunities of their refined products and thus reduce open to the applicant. their profit margins. The applicant received fair compensation Those difficulties would have been even in that it was given the first opportunity greater if the market price for lampante of acquiring the olive oil, at a price grade oil had been closer to the which was, to be sure, above earlier price intervention price instead of moving but which still left it a more than away from it, a phenomenon which is sufficient profit margin. If, for one totally unwarranted in a healthy market. reason or another, the applicant had not obtained one of the lots, the Commission would have granted it appropriate The Commission continues to maintain compensation in another form. that the contractual relationship is not complete until the "letter of allocation" has been sent and until the other formalities, namely payment of the 2. Infringement of Article 190; infringe- guarantee and sealing of the containers, ment of essential procedural re- has been completed. quirements

applicant is no doubt victim of a misap- has simply taken market management prehension, which it could have avoided measures. by a careful reading of Article 38 of Regulation No 136/66. The wording of the last recital in the preamble to Regu- The applicant replies that even if the lation No 2238/81 indicates that no transaction of sale carried out by majority either for or against the regu- intervention agencies were of a "public lation emerged from the consultation of law" character, this could not give rise to the Management Committee. a new type of private ownership, subject to a sort of tacit condition subsequent at The applicant observes that the Com- the discretion of the authorities. mission has produced no evidence to show that it sought the opinion of the Management Committee and it does not The Commission has no powers of indicate the period within which the expropriation. An attempt to terminate a Committee was invited to give its right of private property duly transferred opinion. That makes it impossible to see under the law of a Member State, even if whether the Committee was in fact able it is described as a market management to inform itself about the request for an measure, constitutes a direct and flagrant opinion and to deliberate on it. attack on the law of private property, which is within the exclusive jurisdiction of the Member States. 3. Infringement of Article 222 of the Treaty and of the principle that measures must not be retroactive In its rejoinder the Commission maintains its view that Article 222 of the Treaty is not relevant. The applicant is of the opinion that whilst the Commission has the right to organize sales of olive oil, their con- ditions of validity and their effects, parti- culary the transfer of ownership, are C — Application for compensation none the less governed by the relevant national legislation. The Commission cannot, without infringing Article 222 of 1. Application supplementing the ap- the Treaty, attempt to call into question plication for annulment rights of ownership which have been properly acquired or transferred in ac- cordance with Italian law. The applicant claims that it has suffered a substantial commercial loss because of Moreover, it can be seen from the the uncertainty over the final price to be case-law of the Court that the Com- paid for the olive oil. That loss has been mission was bound to respect the provisionally assessed at 20% of the loss prohibition against the adoption of retro- which would result from the main- active measures and the principle of tenance in force of the constested regu- legitimate expectation. lations, that is to say, LIT 268 420 000.

According t o the Commission, the same objections can be made to that head of 2. Application in the alternative the claim as were raised in relation to the application for annulment and it must therefore be dismissed. The conditions (a) If the Court dismisses the appli- for an application for compensation, cation for annulment on the ground that namely a sufficiently serious breach of the applicant is not entitled to bring such the law by the Commission and actual an action, the applicant contends that the damage, have not been met. contested regulations are not merely unlawful but also defective since their adoption constitutes a grave and (b) If the application for annulment is manifest breach of a superior rule of law found to be admissible but unfounded, for which the Commission is liable in the applicant maintains that it is still accordance with the second paragraph of entitled to demand compensation for the Article 215 of the Treaty. loss that it suffered even if no fault is implied in the contested measures.

The applicant assesses the loss by ref- erence to the difference between the That view is supported by the working price fixed for the earlier sale (LIT documents preceding the adoption of the 210 000 per 100 kg) and the price fixed Treaty and the reference made in the for the new sale (LIT 235 000 per 100 second paragraph of Article 215 of the kg), that is, LIT 25 000 per 100 kg, a Treaty to the general principles common total of LIT 1 342 100 000. to the laws of the Member States.

SAVMA v COMMISSION

In fact, the most advanced legal systems the word "fault" is not fortuitous. It was in the Member States recognize the the initial version and was deliberately liability of the State to pay compensation removed when the final version was for damage caused by a quasi-expro- drafted. The purpose of the Treaty was priation for reasons of public utility, a to allow the Court to determine, by concept of German law to which the reference to the principles common to Commission referred during the pro- the laws of the Member States, the ceedings for the adoption of interim conditions under which the public auth- measures. orities would be liable in the absence of fault.

The applicant considers that it does not necessarily follow from the case-law of the Court that the Community never With regard to the national laws of the incurs non-contractual liability where Member States, they are sufficiently there is no unlawful measure implying similar to support the view that the the existence of fault. public authorities are liable for measures, even those of a normative or legislative character, the adoption of which does not involve any fault, where there is The applicant considers that the Com- grave and exceptional special damage. In munity might incur non-contractual particular, that principle is recognized in liability if there was grave and ex- French, German, Belgian and Italian law. ceptional damage leading to inequality There is no need for the Member States before the law in regard to the burdens to be unanimous for the principle to be to be borne in the public interest. That accepted in Community law. principle finds support both in the wording of the second paragraph of Article 215 of the Treaty and in the The applicant is aware of the restrictive case-law of the Court, as well as in the national laws of the Member States. conditions under which the Court rec- ognizes the non-contractual liability of the Communities in connection with legislative measures, but emphasizes that account must be taken of all the circum- With regard to the second paragraph of stances of public or private interest. The Article 215 of the Treaty, the absence of existence of grave and exceptional dam-

JUDGMENT OF 27. 11. 1984 — CASE 264/81

In reply to a question put by the Court, the Commission stated that what it meant by "risk of disturbance" on the I V — E x a m i n a t i o n of a w i t n e s s olive oil market was the danger that the applicant would get control of a share of the market to which it was not entitled, When examined, the witness, Mr Guida, and thus exclude other traders from that stated that prices were the best baro- market. meters of the market. Between October 1980 and October 1981 the price of lampante grade oil increased by about The Advocate General delivered his 15%. That increase could be explained Opinion at the sitting on 25 September by various factors: first, the application 1984.

SAVMA v COMMISSION

Decision

1 By application lodged at the Court Registry on 2 October 1981, SpA Savma, of Milan, brought an action under the second paragraph of Article 173 of the EEC Treaty for a declaration that Commission Regulation No 2238/81 of 3 August 1981 repealing Regulation No 71/81 on the sale of olive oil held by the Italian intervention agency (Official Journal L 218, p. 27), and Commission Regulation N o 2239/81 of 3 August 1981 re-opening the sale by tender of olive oil held by the Italian intervention agency (Official Journal L 218, p. 28), are void. In addition, or in the alternative if the application for annulment is dismissed, it is seeking damages under Article 178 and the second paragraph of Article 215 of the Treaty in the amounts of LIT 268 420 000 and LIT 1 342 100 000 respectively.

2 Article 12 of Regulation No 136/66 on the establishment of a common organization of the market in oils and fats (Official Journal, English Special Edition 1965—1966, p. 221), as amended by Council Regulation No 1562/78 of 29 June 1978 (Official Journal L 185, p. 1), obliges the intervention agencies designated by the producer Member States, as a means of stabilizing the olive oil market, to buy in, under certain conditions and at the intervention price fixed for the marketing year involved, olive oil of Community origin which is offered to them by producers. According to the second paragraph of that article, the intervention agencies are to sell within the Community the olive oil bought in by them under conditions such that the market at the production stage is not disturbed.

4 By Regulation N o 71/81 of 12 January 1981 (Official Journal L 11, p. 5), the Commission decided that the Italian intervention agency (AIMA) should put up for sale some 33 000 tonnes of virgin olive oil from intervention purchases made during the 1977-78 olive marketing year, divided into six lots of about 5 500 tonnes each, at a fixed price of LIT 210 000 per 100 kg. It was stated in the preamble to the regulation that the olive oil purchased by the Italian intervention agency during the said marketing year had been put up for sale by tender on several occasions but it had only been possible to sell a small proportion of that oil. The preamble also stated that the existing market situation was suitable for putting the oil up for sale again and that production of olive oil in the 1980/81 marketing year was expected to be plentiful. However, so as not to interfere with the normal sale of'production from that marketing year, it was stated that the purchasers of the oil should be obliged to refine it or market it outside the Italian and Greek markets.

5 The regulation provided that sales were to commence on the tenth day following posting of the notice of sale and that lots were to be awarded in the order of submission of applications to purchase, until the lots puž up for sale had all been disposed of. If applications to purchase were submitted on the same day for the same lot, AIMA was to designate as purchaser the applicant who submitted applications to purchase several lots or, where that was impossible, AIMA was to determine the purchaser by drawing lots. Finally, the oil was to be withdrawn every 30 days from 15 March 1981, in quantities equal to at least 10% and at most 2 0 % of the purchased quantity. The purchaser was to pay the purchase price for each lot of oil withdrawn not later than the end of the fifth month following that in which the quantity concerned was withdrawn.

7 On 3 August 1981, the Commission adopted the first of the regulations which the applicant seeks to have declared void, namely Regulation N o 2238/81 repealing, with effect from 13 January 1981, the aforementioned Regulation No 71/81. In the preamble to Regulation No 2238/81 the Commission stated that the sale had been delayed as a result of the inquiry undertaken into the above-mentioned complaints, but that the consignments put up for sale had finally been allotted to tenderers in accordance with the provisions of Regulation No 71/81. The Commission went on to say: " . . . meanwhile, the conditions on the olive oil market have altered so that to make the sale on the conditions originally laid down would result in serious disturbance on the market; . . . in particular, quantities could be sold by these operators at prices which would shut other operators out of the market", and accordingly "it is necessary, in the overriding general interest, to cancel the sale in question". Finally, measures were to be taken in parallel in order to take account of the situation of the operators to whom lots had been allocated.

s Those measures were the subject of Regulation N o 2239/81 of the same date, which is the second of the regulations at issue, and by virtue of which the olive oil referred to in Regulation No 71/81 was to be put up for sale by tender in six lots, the sale being "reserved for tenderers designated pursuant to . . . Regulation (EEC) No 71/81". The oil was to be sold not later than 10 September 1981 and withdrawn in lots commencing on 15 September 1981. The purchaser was to pay the purchase price for each of those lots at the time of withdrawal.

n - In that connection, it should be emphasized that Regulation N o 71/81 fixes unconditionally not only the price and the quantities of oil put up for sale, but also all the other conditions of sale, leaving no place for additional con- tractual stipulations. The applications to purchase could not be withdrawn and the regulation provided that designation of the purchasers from among those who submitted applications was to be by the drawing of lots, without the effect of the latter being subject to any "letter of allocation" being sent. Thus from the time when lots were drawn, at the very latest, the situation as between the parties to the sale was determined. Regardless of when ownership was transferred, it follows that any intervention on the part of the Community institutions preventing AIMA from carrying out its obligations to the tenderers designated by the drawing of lots necessarily constitutes a measure of direct and individual concern to them. Consequently, the application is admissible.

SAVMA v COMMISSION

Substance

12 The applicant contends essentially that in adopting Regulations Nos 2238 and 2239/81 the Commission exceeded the powers conferred upon it by the Treaty and by the rules of secondary law relating to the organization of the market in question, which provide that the Commission may act to protect competition only at the production stage and not at the marketing stage. Moreover, the Commission has misused its power of discretion. On the one hand, the development of the market was not unforeseeable and on the other, there was no risk of disturbance. Furthermore, the contested regu- lations infringe Article 222 of the Treaty, the general principles of legal certainty and, in particular, the principle of legitimate expectation.

u Furthermore, the information which the Court has obtained in no way confirms the proposition that the changes relied upon were of as radical a nature as the Commission states. Thus, a witness whose competence was recognized by all the parties stated that it would be wrong to say that during the period in question there was a real shortage, and that he was not aware that the refineries had had any difficulty in obtaining supplies of lampante grade oil. As regards prices, the witness declared that there had been an increase of about 15% in the price of lampante grade oil between October 1980 and October 1981, and that that development should be regarded as normal having regard to seasonal fluctuations, the monthly increases in the intervention price, the devaluation of the green lira and the rate of inflation in Italy.

17 Moreover, the Commission has not explained how a market on which there is a shortage and on which prices are tending to rise could be disturbed solely by the arrival on that market, at regular intervals, of additional quantities of the product likely to be sold at moderate prices. The Commission admitted, in particular during the oral procedure, that the disturbance that it feared was of a more indirect nature in the sense that the profits to be made by the undertakings who had been successful in the drawing of lots would have allowed those undertakings to obtain control of a share of the market to which they were not entitled, thus excluding other traders from the same market.

is The mere fact that the conditions on which the Commission permitted the national agency to put the products up for sale proved to be favourable, and even extremely favourable, to the purchasers, does not entitle the Commission to prevent that agency from carrying out the contract which had been concluded in accordance with the said condition. With regard to the possibility of an abusive use of those profits, it should be pointed out that the quantity put up for sale was divided between six independent under- takings. The Commission has not even tried to show how and why one of those undertakings would have used the profits so as to exclude, or to have the effect of excluding, other traders from the market.

23 With regard to the supplementary application for compensation, to be considered in the event that the application for annulment is not sufficient to obtain compensation for all the loss which the applicant claims to have suffered, it should be stated that the declaration that Regulation No 2238/81 is void entails, in principle, completion of the sale in accordance with the conditions of sale laid down in Regulation No 71/81. If AIMA fails to abide by those conditions to the letter, the applicant has a claim in contract in accordance with national legislation and, if appropriate, may bring proceedings on that basis before the national courts. Only if the applicant can prove the existence of additional loss of a non-contractual nature, therefore, it may bring an application for compensation before this court.

JUDGMENT OF 27. 11. 1984 — CASE 264/81

24 The applicant does in fact claim to have suffered a substantial commercial loss because of the uncertainty regarding the final price to be paid for the olive oil, but it has entirely failed to prove that such a loss actually exists.

25 It follows that the supplementary application for compensation must be dismissed.

Costs

26 Article 69 (2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs. Since the Commission has failed in its principal submissions it must be ordered to pay the costs.

3. Dismisses the remainder of the application;

4. Orders the Commission to pay the costs.

Due Kakouris Erling Galmot Joliet

Delivered in open court in Luxembourg on 17 November 1984.

For the Registrar H. A. Rühi O. Due Principal Administrator President of the Fiftli Chamber

OPINION OF MR ADVOCATE GENERAL LENZ