C-281/82

Community measure in dispute to 3. The establishment of compensatory the Court of Justice. However, the amounts was intended to maintain the existence of such a means of redress single-price system, the basis of the will be capable of ensuring the present organization of the markets, effective protection of the individuals thus avoiding a disorganization of the concerned only if it may result in system of intervention prices and making good the alleged damage. maintaining normal patterns of trade in agricultural products both between Consequently, an action for damages the Member States and with non- brought against the Community insti- member countries. The compensatory tutions may not be declared amounts can be applied therefore only inadmissible on the ground that the in so far as the monetary measures applicant has not made use of the referred to involve disturbances in legal remedies available in national trade in agricultural products. law when it is not disputed that these remedies were not capable of 4. A trader cannot legitimately expect guaranteeing him effective protection. that the monetary compensatory amounts will be modified while 2. Although Article 3 of Regulation N o negotiations within the Council, of 974/71 requires the Commission to which traders are necessarily aware modify the monetary compensatory and the very purpose of which is to amounts when the monetary differ- avoid an increase in those amounts by ence serving as a basis for their calcu- means of an adjustment of the repres- lation changes by at least one point entative rates, are still in progress. from the percentage taken as a basis for the preceding determination, that 5. The prohibition of discrimination provision does, however, leave it a contained in the second subparagraph certain discretion in choosing the time of Article 40 (3) of the Treaty is at which to implement the alterations. merely a specific enunciation of the The alteration of the monetary general principle of equality which is compensatory amounts need not be one of the fundamental principles of immediate, since the Commission has Community law. That principle means a reasonable period allowing it to take that like situations should not be its decisions on the basis of the most treated differently unless such differ- reliable information. ent treatment is objectively justified.

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,

T H E C O U R T (Fifth Chamber)

composed of: Lord Mackenzie Stuart, President, Y. Galmot (President of Chamber), O. Due, U. Everling and C. Kakouris, Judges,

Advocate General: G. F. Mancini Registrar: H. A. Rühl, Principal Administrator

2. Regulation No 974/71 of the referred to in (a), as recorded over a Council of 12 May 1971 on certain period to be determined." measures of conjunctural policy to be taken in agriculture following the temporary widening of the margins of Article 3 of the same regulation provides fluctuation for the currencies of certain as follows: Member States (Official Journal, English Special Edition, 1971 (I), p. 257), as "If the difference referred to in Article 2 amended by Regulation No 1112/73 of (1) changes by at least 1 point from the the Council of 30 April 1973 (Official percentage taken as a basis for the Journal, L 114, p. 4), provides in Article preceding determination, the com- 2(1): pensatory amount shall be altered by the Commission in line with the change in the difference." "The compensatory amounts for the products covered by intervention ar- However, Article 6 provides that the rangements shall be equal to the amounts detailed rules for the application of the obtained by applying to the prices: regulation are to be adopted in ac- cordance with the so-called "manage- ment committee" procedure and that, subject to the provisions of Article 3, the (a) in respect of those Member States detailed rules for application are to cover the currencies of which are main- in particular the fixing of the tained among themselves within a compensatory amounts. spread at any given moment of 2.25%, the percentage difference The creation of the European Monetary between : System has not fundamentally changed The conversion rate used under the the system of monetary compensatory common agricultural policy, and amounts. However, Council Regulation The conversion rates resulting from No 652/79 of 29 March 1979 on the the central rate; impact of the European Monetary System on the common agricultural policy (Official Journal, L 84, p. 1) replaced the unit of account by the (b) in respect of Member States other European currency unit (ECU) for the than those referred to in (a), the calculation, among other things, of the average of the percentage differences monetary compensatory amounts. That between: regulation also carried over a system of The relationship between the con- franchises which, in various forms, had version rate used under the common been applied since 1974 and which agricultural policy for the currency consisted of a certain reduction in the of the Member State concerned and percentage difference used to calculate the official parity, or, where this such amounts. parity is not observed, the central rate of each of the currencies of the Under the terms of the abovementioned Member States referred to in (a), system, in respect of those Member and States the currencies of which are main- The spot market rate for the tained among themselves within a spread currency of the Member State in of any given moment of 2.25%, the question in relation to each of the monetary compensatory amounts are as currencies of the Member States a rule invariable, that is to say they are

modified only if there is a change in the "Unless contrary decisions arc taken in central rate (devaluation or revaluation) consequence of possible decisions by the or in the representative rate (green rate). Council, the monetary compensatory On the other hand, in respect of amounts and differential amounts Member States whose currencies are not applicable for the week 30 March to maintained within the spread of 2.25%, 5 April 1981 shall be identical to those such as the Italian lira, the amounts are applicable on 23 March 1981." modified in accordance with the changes in the daily rates on the foreign currency markets. In the preamble to the said regulation, the Commission stated that the ad- justments to the central rates should Article 2 of Commission Regulation No bring about an alteration in the monetary 1380/75 of the Commission of 29 May compensatory amounts, but that the 1975, laying down detailed rules for the "freeze" was justified, as a precautionary application of monetary compensatory measure, by the imminence of a Council amounts (Official Journal, L 139, p. 37) decision to alter the representative rates: determines, for the latter currencies, the reference period over which the fluc- tuations of those currencies against ". . . in view of these provisions and of currencies maintained within the 2.25% the adjustments to the central rates made spread are to be recorded. It provides: within the European Monetary System, the monetary compensatory amounts and the differential amounts should be "The period referred to in . . . the second altered ; indent of Article 2 (1) (b) . . . of Regu- lation (EEC) No 974/71 shall run from a Wednesday to the following Tuesday." . . . however, pending an imminent Council decision to alter the rep- On 22 March 1981, the Ministers and resentative rates in order to avoid in- the Governors of the Central Banks of creasing or introducing monetary the Member States decided to carry out compensatory amounts, the monetary an adjustment of the central rates within compensatory amounts and differential the European Monetary System. That amounts should, as a precautionary adjustment resulted, with effect from measure, be maintained at their 23 23 March 1981, in a 6% devaluation of March 1981 level." the Italian lira as against all the other currencies within the system, the bilateral central rates between the other Council Regulation No 850/81 of 1 currencies remaining unchanged. April 1981, amending Regulation (EEC) No 878/77 on the exchange rates to be applied in agriculture (Official Journal, By means of Regulation No 801/81 of L 90, p. 1), which came into force on 27 March 1981, concerning monetary 6 April 1981, in fact altered the rep- compensatory amounts and differential resentative rates by bringing into line the amounts (Official Journal, L 82, p. 17), green rates and the central rates for the which came into force on 30 March 1981 currencies of the Benelux countries, the Commission "froze" the monetary France, Denmark and Ireland and by compensatory amounts applicable for the partly bringing the green rate into line week of 30 March to 5 April 1981. with the central rate for the Italian lira. Article 1 of that regulation provides as On the basis of those new representative follows: rates, the Commission, by Regulation

No 902/81 of 3 April 1981 (Official Dismiss the application as unfounded; Journal, L 94, p. 3), which also came into force on 6 April 1981, fixed the Order the applicant to pay the costs. monetary compensatory amounts on the basis of the exchange rates during the reference period from 25 to 31 March The Council contends that the Court 1981. For the Italian lira, the amounts should: were fixed at - 1 , after deduction of the franchise. Dismiss the application as inadmissible, in so far as it is directed against the Council; 3. Considering that the fixing, without any equitable compensation, of the Order the applicant to pay the costs. monetary compensatory amounts appli- cable during the week of 30 March to 5 April 1981 at the level applicable on 23 March 1981 had been carried out in Ill — Submissions and argu- breach of superior rules of law for the m e n t s of t h e p a r t i e s protection of the individual and had caused it to suffer loss, the applicant, by an application lodged at the Court 1. Admissibility Registry on 21 October 1982, brought the present claim for damages, under Article 178 and the second paragraph of (a) Unifrex states that according to Article 215 of the EEC Treaty. an established body of case-law, the application for damages is an inde- pendent remedy which may be claimed Upon hearing the report of the Judge- independently of all other remedies Rapporteur and the views of the based on national or Community law. Advocate General, the Court, by order of 21 September 1983, decided to assign this case to the Fifth Chamber, pursuant The Court has affirmed the inde- to Article 95 of the Rules of Procedure, pendence of the action for damages, in and to open the oral procedure without relation to both proceedings for failure any preparatory inquiry. to act and proceedings for a declaration of nullity, in its judgment of 28 April 1971 (Case 4/69 Lütticke [1971] ECR 325) and of 2 December 1971 (Case 5/71 Schöppenstedt[1971] ECR 975). II — C o n c l u s i o n s of t h e p a r t i e s The independence of the action for damages in relation to the means of The applicant claims that the Court redress available in national law has should: been recognized in the judgment of 24 October 1973 (Case 43/72 Merkur Grant it damages in the amount of FF [1973] ECR 1055). The effect of that 2 957 276.77 or such greater or lesser judgment is that the admissibility of an sum as the Court may think fit. action for damages cannot be made subject to the exhaustion of national remedies. In the present case, Unifrex The Commission contends that the Court has no national remedy likely to give it should: satisfaction, in view of the fact that the

court with jurisdiction regards any ultra to the French administrative courts for vires acts would be empowered solely an order annulling the decision of ONIC to declare void the decision of the by which the latter had applied to it the competent French body (ONIC) monetary compensatory amounts in awarding the monetary compensatory dispute. amounts but not to substitute itself for the administration and order O N I C to pay the amounts at a different rate. (c) The Council, without raising a formal objection within the meaning of Article 91 of the Rules of Procedure, Thus, the present action is available raises the inadmissibility of the without its being necessary to seek first a application. In this respect it relies on declaration that the measure is illegal or Article 38 (1) of the Rules of Procedure, that the Community institution has failed which requires the application to state to act. with a sufficient degree of clarity "the subject-matter of the dispute and the grounds on which the application is (b) The Commission, without formally based". The applicant must "set out the putting forward an objection of precise facts relied on in support of his inadmissibility, none the less expresses claim and must present his conclusions in doubts about the admissibility of the an unequivocal manner" (judgment of 14 action because the national means of September 1962 in Joined Cases 46 and redress have not been exhausted. 47/59 Meroni [1962] ECR 411).

It was held in [1979] ECR 3497; of 12 December 1979 that case that defects in the originating in Case 12/79 Wagner [1979] ECR application could not make the 3657; and of 10 June 1982 in Case application inadmissible unless they were 217/81 Interagia [1982] ECR 2233). such as to prevent the other party from effectively defending its interests or That principle received support in hinder the Court in the exercise of its particular in the judgment of 17 De- judicial review.

Substance of the Merkur case, but rejected the objection because, in those cases, such a The liability of the Community means of redress was not available. On the other hand Unifrex, the Commission (a) Unifrex observes that an established claims, had the opportunity of applying body of case-law, in particular the afore-

As a result, the risk normally carried by In the first place, Unifrex claims that traders is that of the spread of fluc- Regulation No 801/81 is illegal because tuation of currencies within the the Commission should have immediately European Monetary System. On the adapted the monetary compensatory other hand, legitimate expectation would amounts to the monetary situation be frustrated and traders ought to be resulting from the devaluation on compensated, if the risk goes beyond 23 March 1981 of the central rate for that spread without any compensatory the Italian lira. By intervening only on measure being adopted. 27 March 1981 and by fixing the compensatory amounts applicable for the week of 30 March to 5 April 1981 at the level applicable on 23 March 1981, the In the third place, there is a breach of Commission has infringed the basic the principle of non-discrimination laid Regulation No 974/71. down in the second subparagraph of Article 40 (3) of the Treaty in so far as the applicant can avail itself of neither the "equity clause", nor the advance fixing of the compensatory amounts. The applicant admits in this context that Community rules do not lay down at what moment the compensatory amounts, which the Commission must The "equity clause" was instituted by introduce or adapt by virtue of Article 3 Commission Regulation No 926/80 of of Regulation No 974/71, must come 15 April 1980 on exemption from the into force. It considers however that the application of monetary compensatory Commission must introduce or alter the amounts in certain cases (Official amounts immediately when the monetary Journal, L 99, p. 15). Under the terms of difference envisaged by that provision that regulation, a Member State the results not from the floating of a value of whose currency has been altered currency but from its devaluation. is allowed, on the application of an interested party, not to collect the monetary compensatory amounts or that part of them corresponding to the In the second place, it would appear, in increase, on imports or exports covered the light of the aforementioned CNTA by contracts firmly concluded before the case, that the principle of the protection adoption of the monetary measure. The of legitimate expectation is breached. discrimination is that Community rules

What is more, the Court has accepted, within certain limits, the "freezing" of The same reasoning holds good for the the amounts by the Commission in its advance fixing of compensatory amounts judgment of 13 June 1978 (Case 146/77 which, contrary to the principle of British Beef Company [1978] ECR 1347) Community preference, is allowed only and of 14 December 1978 (Case 35/78 in the case trade with non-member Schouten [1978] ECR 2543). In the latter countries, pursuant to Regulation No case, it upheld a regulation under which 243/78 of 1 February 1978 (Official the Commission had frozen the com- Journal, L 37, p. 5), but is not allowed in pensatory amounts in spite of a drop in trade between the Member States. the rate of the British and Irish pounds, recognizing that Article 3 of Regulation No 974/71 "may be interpreted as meaning that the exchange rates taken into account in order to establish the (b) The Commission replies in the first difference referred to is to be assessed place that Regulation No 801/80 is on the basis of economically justified valid, since Community rules do not lay criteria, and that consequently it was down when the compensatoiy amounts open to the Commission to leave out of which the Commission must introduce account rates which it considered to be or alter pursuant to Article 3 of Regu- unrepresentative" (paragraph 36). lation No 974/71 must come into force. In practice, the Commission most frequently fixes the amounts with effect from the Monday of the week following The Court has thus accepted a fairly the one in which the difference has been wide interpretation of the provisions observed, whatever the reason for the relating to the fixing of the com- alteration. This deferment is justified pensatory amounts where the reason for because it allows the Commission, with the contested measure was to respect as the help of the Management Committee, far as possible the real objectives of the to have the most reliable information at rules and to avoid applying amounts its disposal. which were economically unjustified.

they should be applied only in cases alignment of the green rates on the where such incidence would lead to central rates and to the widening of the difficulties. In the present case, however, franchises so as to diminish the monetary it is doubtful whether a temporary differences. monetary difference, corrected several days later, causes difficulties of such a nature as to justify an increase in the amounts for only a few days. That In the second place, the Commission increase, far from maintaining the flow points out that the applicant has of trade, would on the contrary have established neither the existence of a been likely to stimulate disturbances arti- "sufficiently serious breach" of the ficially. principles of the protection of legitimate expectation and non-discrimination, nor a "manifest and grave" disregard of the limits on the exercise of the powers of The Commission indicates that the level the Community (judgment of 25. 5. 1978 of Italian compensatory amounts on in Joined Cases 83 and 94/76, 4, 15 and imports went from -1.7, the level 40/77, Bayerische HNL [1978] ECR applicable on 23 March, to -7.2 as from 1209; judgment of 5. 12. 1979, Amylum, 30 March, which represents an increase cited above). of 324%. On 6 April, following the partial alignment of the Italian green rate on the central rate, the amounts would have been fixed at - 1 , which represents a As regards the protection of legitimate drop of 86%. expectation, the Commission claims that the applicant had no right to an immediate adaptation of the compensa- tory amounts and that, what is more, the In those conditions, the "mechanical" disputed measure was not unforeseeable, effect of Article 3 of Regulation N o in view of the established practice of the 974/71 would have caused, within a Commission where there is to be period of two weeks, two successive imminent alteration of the representative adjustments in opposite directions. This rates. The Court has recognized, in the would have created, on the one hand, CNTA case, cited above, that the system a risk of speculative practices and of compensatory amounts does not give deflections of trade and, on the other traders a guarantee of the continuous hand, an insecurity in commercial operation of the system, nor does it relations more damaging to traders and constitute an exchange shortfall guaran- to the smooth functioning of the tee. Furthermore, compelling reasons of common organizations than would have public interest, namely the smooth been the maintenance of the com- functioning of the machinery of the pensatory amounts at their previous rate. common organizations of the market, would in this case have opposed the taking into consideration of possible legitimate rights or expectations. It should also be noted that the freeze took place in the context of the policy of progressive dismantling or at very least, of strict limitation of the monetary There is also no breach of the principle compensatory amounts. That policy is of non-discrimination. The so-called closely linked to the creation of the "equity" regulation, No 926/80, affects European Monetary System, to the only traders for whom the monetary

event means an increased import or in the case of a legislative measure export charge, and thus is not aimed at declared invalid, the individual may be the case of a simple loss of profit required to accept certain harmful resulting from the frustration of the hope effects, in so far as the institution that a compensatory amount would be concerned has not manifestly and gravely increased. On the other hand, the system disregarded the limits on the exercise of of advance fixing of the compensatory its powers. amounts applicable in trade with non- member countries (Regulation No 243/78) cannot be extended to intra- Community trade, since if it were, traders might abuse the system of The damage advance fixing for purely monetary reasons. (a) Unifiex alleges that the contested behaviour of the Community authorities has caused it damage amounting in all to (c) The Council points out that the FF 2 957 276.77. This figure consists of incomplete nature of the application does losses incurred on contracts concluded not allow it to make submissions as to before the devaluation of the lira and the substance. It limits itself therefore to carried out during the two months a few additional remarks on that subject. following that devaluation (23 March to the end of May 1981). It is equal to the difference, less the exchange risk, between the theoretical compensatory amounts which would have had to be As regards the complaint in the granted if the freeze had not been application that the Council did not decided upon and if an equity clause had adopt any equitable compensatory been established, and the amounts which measure, it is for the Commission to were in fact granted. The exchange risk adopt ad hoc transitional measures for results from the fact the amounts are the application of Regulation No modified only when the monetary 974/71. Furthermore, the applicant does difference referred to in Article 3 of not say on what basis the Council had a Regulation No 974/71 changes by at duty towards it to adopt a general least one point from the percentage used measure. Finally, no consideration either to fix the rate for the preceding week. of law or of logic requires the Council to make an instant alteration in the rep- resentative rates applicable in the field of agriculture there and then, as soon as The claim for damages has been limited a modification of the central rates takes to two months, regard being had to the place in the context of the European Commission's practice of not taking Monetary System. account of a period longer than two months for the application of the "equity clause".

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 N o 850/81 of 1 April 1981 amending Regulation N o 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

UNIFREX / COMMISSION AND COUNCIL

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 compensatoiy amounts unchanged for the said period. By Regulation No 801/81 of 27 March 1981 concerning monetary compensatoiy 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.

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.

1 1 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 auth- orities, 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

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

JUDGMENT OF 12. 4. 1984 — CASE 281/82

with the change in the monetary difference serving as a basis for the calcu- lation of the compensatory amounts, if that difference changes by at least one point from the percentage taken as a basis for the preceding determi- nation.

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.

UNIFREX / COMMISSION AND COUNCIL

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 Regu- lation 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.

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 auth- orized 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 N o 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

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,

T H E C O U R T (Fifth Chamber)

hereby:

1. Dismisses the application;

OPINION OF M R ADVOCATE GENERAL MANCINI D E L I V E R E D O N 14 M A R C H 1984 1

Mr President, within what limits the Commission may Members of the Court, freeze the compensatory amounts when the exchange rates are subjected to variations which, normally, involve a more or less immediate adjustment. 1. The Court is called upon to adjudicate on a claim for damages brought against the Council and the Commission by a French undertaking operating in the international cereals Unifrex, a limited liability company, market. The origin of the dispute is a whose registered office is in France, Commission regulation temporarily freez- exports agricultural products and in ing the monetary compensatory amounts particular cereals to Italy. In the in spite of the fact that the lira had been contracts concluded with Italian traders, devalued. According to the applicant, the prices of those goods are agreed in that freeze caused it financial lbss lire. The compensatory amounts are paid because no proportional increase in the direct to Unifrex by O N I C , the copensatory amounts accompanied the competent French body. It is in fact reduction in prices brought about by the provided (Article 2a of Regulation No devaluation. The question before the 974/71 of 12. 5. 1971, as amended by Court therefore is to decide whether, or Regulation No 1112/73 of 30. 4. 1973)

1 — Translated from the Italian.