C-20/88

2. The action now before the Court is based on the second paragraph of Article 215 of the EEC Treaty. Its object is 4. Therefore, not being permitted to challenge the overcharging of monetary * Original language: French compensatory amounts prior to 15 October 1 — Commission Regulation No 652/76 changing the monetary 1980, Roquette seeks from this Court the compensatory amounts following changes in exchange rates for the French franc. OJ L 79, 25.3.1976, p. 4 2 — Case 145/79 Roquette [1980] ECR 2917 3 — Case 145/79, supra, paragraph 53

OPINION OF MR DARMON —CASE 20/88

award of compensation for the damage fait accompli and it is appropriate simply to which it claims to have suffered as a result. accept its consequences.

ROQUETTE FRÈRES v COMMISSION

'The period of limitation which applies to brought by Roquette is time-barred. The proceedings in matters arising from the Court may indeed have said that non-contractual liability of the Community ... cannot begin before all the requirements governing the obligation to provide compensation for damage are 'the periods prescribed for instituting satisfied and in particular before the damage proceedings are mandatory and are not to be made good has materialized'. 8 subject to the discretion of the parties or of the Court'. 9

8 — Judgment of 27 January 1982 in Case 51/81 De Franceschi 9 — Judgment of 12 December 1967 in Case 4/67 Muller née [1982] ECR 117, paragraph 10 Collignon [1967] ECR 365

OPINION OF MR DARMON — CASE 20/88

12. Admittedly, the circumstances are a Greek law provides, without restriction, that little unusual in the present case, since the the issue of a time-bar may be raised by the applicant took the initiative, in its court of its own motion. In Germany, the application, to affirm that it had been judge's right or obligation to draw a lodged within the period prescribed by debtor's attention to the possibility of Article 43 ." It does not seem to me, objecting that an action is time- however, that the Court can deduce from barred — which has in fact provoked that precaution taken by Roquette that an discussion regarding the duty of impar objection based on time-limits has been tiality— appears to be seen as a manifes

Therefore, arguments expounded in the application having regard to the second paragraph of concerning the limitation period, the Article 215 of the EEC Treaty, according to Commission, which had notice of the which 'in the case of non-contractual content of the application, made no obser liability, the Community shall, in vation whatsoever on the matter in its accordance with the general principles defence or rejoinder. Finally, it must be common to the laws of the Member States, borne in mind that, in response to the very make good any damage', I consider that in precise questions put to him at the hearing, the absence of any common general the Commission's agent did not at any time principle to that effect the Court cannot of say that the defendant considered the its own motion raise the question of the application time-barred, but rather expiry of the period for bringing expressed his doubts as to the point at proceedings. which time started running, mentioning the possibility that it began to run when the remedy of an action for reimbursement was regarded by the French courts as having been exhausted.

ROQUETTE FRÈRES v COMMISSION

15. I must clarify the point I am raising. I limit the effects of the finding of invalidity. am not suggesting that an objection as to the availability of a parallel remedy might be made against Roquette's claim on the ground that the repayment of sums 16. The undisputable fact nevertheless improperly charged by the national auth remains that, by its action to establish orities in respect of monetary compensatory liability, Roquette seeks, in part, to obtain amounts is a matter reserved exclusively to the payment of sums equal to the excess the national courts. No one can be unaware charge in respect of monetary compensatory of the fact that such inadmissibility, the amounts, whereas the Court's judgment of basis of which was clearly set out in the 15 October 1980 laid down that the Court's judgment of 27 January 1976 in charging of monetary compensatory

That important reservation, 17. However, it does not seem easy to 1 determine to what extent that authority emphasized by academic legal writers, 3was expressed with particular clarity in the would prevent Roquette from bringing an Court's judgments of 12 April 1984 in action to establish non-contractual liability. Unifiex 14 and of 26 February 1986 in The Court's order of 5 March 1986 in the 15 16 Krohn. Accordingly, it seems to me to be Wünsche Case applied the principle of res difficult to envisage the possibility of judicata to relations between the Court of Roquette's application being held inad Justice and a national court, which had missible by virtue of an objection as to the submitted questions to and received answers availability of a parallel remedy, since the from this Court, in most unusual circum Court's judgment of 15 October 1980 stated stances. It will be recalled that the Verwal specifically that the finding of invalidity tungsgericht (Administrative Court), Frankfurt am Main, which had been 12 — Case 46/75 [1976] ECR 65 provided with a preliminary ruling by

[ 1984 15 — Case 175 /84 [1986 175/ 1986]] ECR 753 753,, paragraph 27 ECR 1995

18. Thus, the case-law of the Court describes with sufficient clarity the authority of a preliminary ruling given by the Court The Court then stated: as regards the court to which the judgment is addressed: that court is bound, as regards the decision to be given in the main proceedings, by the answer given to the question which it submitted. The circum­ 'the authority of a preliminary ruling does stances of the present case do not allow the not preclude the national court to which it authority thus defined to be transposed is addressed from properly taking the view outright. In this case a party to the main that it is necessary to make a further proceedings which gave rise to the Court's reference to the Court of Justice before judgment of 15 October 1980 is now giving judgment in the main proceedings'. proceeding against a different defendant, on a clearly distinct legal basis and before the Court of Justice, which this time is the competent court for the main proceedings. Then, clarifying the circumstances in which May or must it be considered in those a further reference for a preliminary ruling circumstances that the authority of the may be made, the Court stated, referring to Court's judgment of 15 October 1980, established case-law, that: relating to proceedings in which Roquette was suing the French customs adminis­ tration before the tribunal d'instance, Lille, for recovery of sums overpaid, prevents that company from instituting proceedings 'such a procedure may be justified when the before this Court to establish national court encounters difficulties in non-contractual liability on the part of the understanding or applying the judgment, Commission of the European Communities? when it refers a fresh question of law to the I believe that if the Court said that it did, Court, or again when it submits new the effect would be to approve a singularly considerations which might lead the Court far-reaching definition of the binding to give a different answer to the question authority of preliminary rulings — a devel­ submitted earlier'. opment which I view as inconceivable.

precondition for the success of an action for reimbursement is that the provision on which the charge was based is invalid. Provided that such invalidity is estab­ lished — and its effects are not limited to an exceptional extent — the right to full reim­ The manifest character of the invalidity of a bursement of the undue payment is itself piece of legislation having been established, established. The position is different in an compensation for a trader equivalent to the action to establish non-contractual liability undue charges will not be automatically before this Court, the success thereof being available since the Court has stated, conditional upon much more stringent regarding the requirement of gravity, that requirements, even where the alleged damage derives from the invalidity of the same piece of legislation. A trader who, purporting to bring an action to establish liability, seeks by that means to recover an undue payment will have to fulfil the 'individuals may be required, in the sectors requirements laid down in law relating to coming within the economic policy of the liability and not the less restrictive Community, to accept within reasonable requirements applied to actions for payment limits certain harmful effects on their economic interests as a result of a legislative or recovery. In particular he will have to measure without being able to obtain establish much more than the mere inva­ compensation from public funds even if that lidity of the legislation on which the charge 20 measure has been declared null and void', was based. According to the case-law of this Court, liability cannot be incurred through the adoption of a legislative measure involving a choice of economic policy

20. Therefore, it seems to me that an the action inadmissible if it agrees with the analysis which identifies, in an action to analysis which I have expounded. establish liability intended in part to obtain compensation for damage equal in amount to that of sums unduly paid in respect of monetary compensatory amounts, a disguised action for reimbursement 23. I shall now consider the substance of disregards the real situation of the trader the application, as regards only the principle bringing the action. The trader, whatever he of liability. The foregoing considerations thinks, is, I may say, genuinely bringing a concerning the authority of the Court's different action. His situation perfectly illus­ judgments have already provided an oppor­ trates the autonomy of the action to tunity for referring to the substantive establish liability, as it emerges from the conditions laid down in the decisions of the case-law of this Court. By so doing, the Court under which the legislative activity of trader in question is not challenging the the Community in the economic sphere, in authority of the judgment by which the particular in relation to the common agri­ Court held that he was not permitted to cultural policy, may give rise to bring an action for reimbursement. non-contractual liability on its part.

21. The foregoing observations thus lead me to conclude that the authority of the Court's ruling of 15 October 1980 is not 24. It will be remembered that the Court called in question by Roquette's action and has laid down the requirement that, in the that the latter cannot be considered in any first place, the alleged damage must result way inadmissible on that count. from

ROQUETTE FRÈRES v COMMISSION

26. The Court was called upon to assess the 'to maintain the system of single prices validity of certain provisions of a within the common organization of the Commission regulation which, by means of agricultural markets, since that system of the request for a preliminary ruling, were single prices, having regard to the objectives challenged as regards the method of calcu­ of such organizations, that is to maintain lating the monetary compensatory amounts the standard of living of agricultural to be applied. In making that assessment, producers and to stabilize the markets, the Court had to define the scope of the constitutes the foundation of the free technical rules which the Commission was movement of agricultural products within required to observe. It took care to view the Community'. those rules within the system of monetary compensatory amounts and against the background of the philosophy underlying that system, in relation to the common agri­ cultural policy. It stated, on the other hand, that the objective of their introduction

27. Thus, the Court stated that it was apparent from Regulation No 974/71 of the 'is not and cannot be to provide additional Council of 12 May 1971 25 that: protection for the markets in respect of the level of agricultural prices of one particular State in relation to the others, which would be incompatible with the uniformity 26 sought'.

'in relation both to basic products and to dependent products, the introduction of monetary compensatory amounts is intended to correct the effects of unstable variations in the rates of exchange which, 28. I think it is important to place particular within a system of organization of the emphasis here on the close link described by markets in agricultural products based on the Court between monetary compensatory common prices, are capable of causing amounts on the one hand and, on the other, disturbances in trade and in particular of the free movement of agricultural products, jeopardizing the system of intervention laid the essential function of the former being to down in respect of such products'. preserve the latter by means of the system of single prices.

'the effect on the price of the dependent 30. On the basis of those considerations, product of the monetary compensatory the Court concludes in the Roquette 27 judgment, that Commission Regulation No amounts applied to the basic product'. 652/76 is invalid as regards the system of calculating monetary compensatory amounts for products derived from a single basic product such as maize or wheat, referring, The Court concedes that the calculation of for the reasons for that view, to the Court's the incidence on the prices of dependent judgments in Providence agricole de la products of the monetary compensatory Champagne 30 and Maïseries de Beauce31of amount fixed for a basic product causes the same date. Looking at those judgments, 'difficult technical and economic 28 we see that they set a clear limit to the problems' with regard to a large number Commission's discretionary power regarding of products and that therefore the the incidence of the monetary compensatory Commission must be acknowledged to have 28 amount applicable to the basic product on a 'wide margin of discretion'. In those the prices of derived products. That limit is circumstances, the fact that the monetary compensatory amount fixed for a processed product is not appropriate for a particular undertaking or group of undertakings does not constitute a basis for challenging it. 'the ceiling which prevents the sum of the However, the Court observes that monetary compensatory amounts on the products derived from a certain quantity of basic product from exceeding the monetary compensatory amount on the quantity of 'if the result of the method of calculation the basic product from which they are 32 employed is persistently to apply to obtained'. processed products compensatory amounts the burden or, as the case may be, the benefit of which continually exceeds the amount necessary to take account of the incidence of the compensatory amount It was therefore that 'ceiling' which applicable to the basic product, the objective prompted the Court to conclude in Roquette of the provisions establishing those amounts may no longer be deemed to be the neutral­ ization of the effects of the currency fluctu­ 29 ations between the Member States'. 'that, by adopting for the calculation of monetary compensatory amounts ... a system which results in establishing for the

various products obtained by processing a products could be discerned even by a given quantity of maize or wheat in a non-specialist. It is patent, manifest. My specific manufacturing process monetary view is in line with that expressed by Mr compensatory amounts the sum of which Advocate General Mayras when, in his amounts to a figure clearly in excess of that Opinion in the Providence agricole, Matseries of the monetary compensatory amounts de Beauce and Roquette cases, he said: fixed for a given quantity of maize or wheat, the Commission has infringed Regu­ lation No 974/71 and Article 43(3) of the Treaty'. 33 'Simple arithmetic shows that as soon as the sum of the amounts applied to all the products obtained from the processing of a single basic product exceeds that of the amounts applicable to that product there is a 31. You may have found my analysis of the manifest error, not to say an arbitrary calcu­ Court's reasoning too detailed but I thought lation, at variance with certain minimum 3 it important to make it clear that, according requirements'. 4 to the judgments of the Court, the technical provisions relating to the fixing of monetary compensatory amounts are closely linked with the principles on which the common 33. It is impossible not to compare the agricultural policy is based. Indeed, since, in adjectives used by the Advocate General the Court's view, a technical provision of with those used by the Court in describing, that kind relating to calculation of the monetary compensatory amounts can be interpreted only by strict reference to the principles which I have just mentioned, it becomes foreseeable that an infringement of 'in the context of Community provisions in that provision will be of more than slight which one of the chief features was the importance having regard to those prin­ exercise of a wide discretion essential for ciples. the implementation of the common agri­ 35 cultural policy',

37. The provisions of Regulation No 'these were not errors of such gravity that it 974/71 are essentially technical. In may be said that the conduct of the particular, Articles 1 and 2, mentioned in defendant institutions in this respect was the judgment of 15 October 1980, dealt verging on the arbitrary and was thus of with the charging or grant of monetary such a kind as to involve the Community in 36 compensatory amounts, the types of product non-contractual liability'. to which they apply, and the method of evaluating the amounts in relation to the basic products and the derived products. Strictly speaking there is thus no question of 'superior rules of law' as defined in the In a way, those two judgments define what case-law of the Court. The latter appears to must be understood, in relation to the adopt as such the principle of respect for Community activity in question, by 'serious 37 vested rights, the principle of the breach'. 38 protection of legitimate expectations, the 39 principle of proportionality and the 40 principle of non-discrimination. Breach of the abovementioned provisions of Regu­ lation No 974/71 cannot, on the basis of 34. Even if account is taken — and account their appearance alone, be compared with was taken by the Court — of the margin of breach of one of those principles. discretion which the Commission must be recognized as enjoying, the illegal act done by it appears no less manifest. That description of it seems to be called for by the reasoning of the Court, and by the 38. But in fact it does not seem possible, observations of the Advocate General which having regard to the Court's analysis in the clarify it. Thus, I consider that the invalidity Roquette judgment, to consider invalidity determined by the Court consisted in a merely by reference to the particular serious unlawful act, a manifestly incorrect appearance of the infringed provisions. assessment on the part of the Commission. Account being taken of the context of the introduction of the monetary compensatory amounts and the arrangements for fixing them, the illegality of the method of calcu­ lating them had direct repercussions on the foundations of the system. In other words, 35. May it be considered that that illegality the objective of maintaining single prices is verging on the arbitrary, the conclusion was directly affected by the invalidity of the which seems to be demanded by the Court's judgment in Amylum? I think that, now that the Community rules actually infringed have 37 — Judgment of 10 December 1975 in Joined Cases 95 to 98/74, 15 and 100/75 Union nationale des coopératives been identified, that question may be agricoles de céréales and Others [1975] ECR 1615. answered in the affirmative. 38 — Judgment of 8 June 1977 in Case 97/76 Merkur [19771 ECR 1063. 39 — Judgment of 13 November 1973 in Joined Cases 63 to 36 — Judgment of 5 December 1979 in Joined Cases 116 and 69/72 Werhahn Hansamüble [1973] ECR 1229. 124/77 [1979] ECR 3497, paragraph 19. 40 — Joined Cases 83 and 94/76, 4, 15 and 40/77 HNL, supra.

technical provisions of the regulation and Treaty is, moreover, expressly mentioned in the same applied to the principle of which it Roquette as having been infringed in that is one of the foundations, that of the free case. movement of agricultural products in the Community. It would seem relevant in that regard to cite a passage from the Providence agricole and Matseries de Beauce judgments, under the heading of 'General consider­ 39. I therefore consider that the invalidity ations', in which the Court stated: determined by the Court's judgment consisted in a serious breach not only of the technical provisions relating to the fixing of monetary compensatory amounts applicable to derived products but also, through them, 'Monetary compensatory amounts fixed at a of the principle of the free movement of level which clearly overcompensates for the agricultural products in the Community. margin between the prices expressed in national currency and those expressed in units of account by the application of representative rates of exchange (green rates of national currencies) would be contrary to 40. That principle is, of course, of funda­ the nature of monetary compensatory mental importance in Community law. But amounts as a temporary expedient and the does that mean that it can be included requirement that their introduction should among the 'superior rules of law', the only be strictly necessary, which is a condition of rules whose infringement can give rise to their lawfulness. Instead of constituting a liability on the part of the Community? means of maintaining so far as possible the Further hesitation is permissible if it is borne system of single prices and thus the free in mind that the superior rules in question circulation of agricultural products, they must, according to the case-law of this become obstacles to such free circulation Court, protect individuals. The specific which may be compared to charges having function of protecting individuals inherent an effect equivalent to customs duties and in the principle of the free movement of which are incompatible with the objective agricultural products can hardly be which Article 43(3)(b) assigns to the compared to that same function as common organization of the markets, embodied in principles such as those namely that of ensuring conditions for trade requiring respect for vested rights or within the Community similar to those protection of legitimate expectations or the 41 existing in a national market'. principle of proportionality.

42. In so far as this Court's judgments of 15 45. It seems indeed that, in Roquette's October 1980 stated, with greater or lesser view, by stating that the claims for reimbur­ emphasis, that the incorrect fixing of sement following the declaration of inva­ monetary compensatory amounts resulted in lidity would be liable to cause further their being excessive, the consequence of distortion of competition, the judgment which was, in practical terms, that the implied that the overvalued monetary system of single prices was jeopardized and compensatory amounts, in themselves, had veritable charges having equivalent effect already caused such distortion. were introduced, undermining the free movement of agricultural products, the emergence of distortion of trade between the Member States and differences of treatment as between traders is not fortuitous but inevitable, through the simple operation of the most elementary laws of economics. 46. That reference apart, the Roquette judgment does not, it is true, deal really explicitly with the distortions of competition as between traders in 'countries with depre­ ciated currencies' and those in 'countries 43. The applicant company has pointed out with hard currencies' resulting from the that the Court expressly noted, in paragraph unlawful setting of the monetary 52 of the Roquette judgment, the compensatory amounts at too high a level. considerable distortion as between the But it is also true that such distortions are, various traders in the Community caused by as I have said, overshadowed by the 'the Commission's erring ways'. 'technical' illegalities noted by the Court. It may also be observed that Mr Advocate General Mayras was more explicit on that point than the Court was in its judgment. 44. In the paragraph in question, which is Thus he stated that precisely the one in which the Court sets out the reasons for limiting in time the effects of the declaration of invalidity, the most that is to be found is a reference to distortion of competition, which Roquette regards as infringing the principle of non-discrimination. The Court states: 'The choice of the coefficient adopted for calculating the monetary compensatory amounts applicable to processed products is not neutral from the point of view of trade. The method adopted in the contested regu­ 'the invalidity of the regulation in this case lations necessarily entailed distortion in might give rise to the recovery of sums paid trade between Member States and thus but not owed by the undertakings constituted discrimination between producers concerned in countries with depreciated contrary to Article 43(3) of the Treaty. A currencies and by the national authorities in system which "overcompensates" for the question in countries with hard currencies effects of currency depreciation favours which, in view of the lack of uniformity of traders in countries with hard currencies at the relevant national legislation, would be the expense of those in countries with soft capable of causing considerable differences currencies'. 43 in treatment, thereby causing further distortion in competition'. 43 — Case 4/79, supra: paragraph II — 5, p. 2863.

'resulted in increasing artificially exports of maize groats and meal from countries with 'on being questioned by the Judge- hard currencies . . . although the system was Rapporteurs, the Commission recognized in fact intended to prevent artificial that it exercises its powers ... in order to distortion in trade arising from currency increase the protection provided by the levy fluctuations and not to cause or aggravate for producers in countries with hard such distortion'. 45 currencies against non-member countries, with the result that this increased protection was accompanied by distortion in intra- Community trade at the expense of 46 countries with depreciated currencies'. 47. Thus, although the Court's judgment did not refer expressly to any breach of the principle of non-discrimination resulting from the illegalities specifically noted, the reality of such a breach seems to me to be It seems to me that the Roquette judgment hard to deny, and moreover is not contested made indirect reference to that 'misuse' of by the Commission in the present the monetary compensatory amounts system proceedings. when the Court stated that

48. Having regard to the rather narrow 'its objective is not and cannot be to provide purpose of the introduction of monetary additional protection for markets in respect compensatory amounts, by comparison with of the level of agricultural prices of one maintenance of the system of single prices particular State in relation to the others, and the free movement of agricultural which would be incompatible with the products in the Community, the uniformity sought'. 47

53. On the question of the number of undertakings affected by the excessive monetary compensatory amounts arrived at 51. In so far as the applicant has been by the method found by the Court to be content, in support of its claim for damages illegal, the Commission has not contested before this Court, to rely only on the the applicant's claim that it is very small. finding of invalidity relating to the fact that What is involved, it must be remembered, is the monetary compensatory amounts a miscalculation of monetary compensatory applicable to products derived from a single amounts charged in respect of French basic product exceeded the monetary exports and the parties agree that, in the compensatory amounts applicable to that 49 event, five or six undertakings exporting product, I need not consider the other cereals from France were affected, of which findings of invalidity specific to maize two, Providence agricole de Champagne starch, wheat starch and potato starch. and Maïseries de Beauce, secured reimbur­ sement of the amounts overcharged. The Court is aware of the circumstances in which the French administrative courts took the view that they need not observe the limitation of the effects of the finding of invalidity. By way of comparison it may be observed that, in the cases regarding discriminatory abolition of the compulsory 52. In order to answer the question whether refunds in respect of maize groats and meal, the preconditions for establishing this Court took the view that seven French non-contractual liability on the part of the undertakings and seven German under­ Community may be regarded as fulfilled, it takings, which accounted for all the is still necessary to consider certain infor­ producers of maize gritz in the Community, mation relating to the impact of the illegal were a 'limited and clearly defined group of measure. It must be remembered that, commercial operators' 51 and were therefore according to the case-law of the Court, in a position to enforce the non-contractual Community liability in respect of economic liability of the Commission with respect to measures presupposes that the institution them. concerned overstepped the limits of its powers in a manner which was not only manifest but was also serious. Seriousness 23 — Order of 1 April 1987 in Joined Cases 159 and 267/84, 12 and 264/85 Ainsworth and Others v Commission [1987] ECR 1579, paragraphs 3 and 4.

58. However, a number of clarifications, albeit of a somewhat summary nature, given in response to questions asked at the 56. It seems clear that the Court must reach hearing, together with a rather brief passage its decision on the basis of the alleged in the application, enable a better impression damage to the extent to which it appears at to be obtained of what the 'real damage' least conceivable, not having, at this stage, comprises. It derives from that fact that been proved. Any other attitude would Roquette, whose cash flow was cut, to an merely amount to confirming in advance the extent greater than is permissible under statements made by the plaintiffs in the Community law, by the monetary actions to establish liability. compensatory amounts, had to bring its prices into line with those of its competitors in Member States with hard currencies whose cash flow, swollen to an extent greater than is permissible under 57. In that respect, the general description Community law by the monetary given by Roquette of the damage suffered compensatory amounts, allowed them to set by it seems to raise a number of problems. I their prices abnormally low. Abnormally refer here not to the damage arising from here means that the prices fixed by those the excessive monetary compensatory traders had been influenced by their amounts, in the strict sense, but to what comfortable financial situation resulting Roquette describes as 'préjudice réel' in its from the excessive level of the monetary application. That expression is, moreover, a compensatory amounts. Roquette considers little surprising in so far as it might give the that its alignment with the prices thus fixed impression that the excessive monetary resulted in its losing profit.

59. Quite apart from the fact that in therefore no certainty that it would have led support of the few specific arguments which to increased earnings. it devoted to this subject Roquette produced no document whatsoever substantiating its loss of profit, even in general terms, whereas numerous tables are attached to its application to prove some of the instances of overcharging, it is impossible not to 61. Accordingly, I consider that the very entertain some doubts as to the plausibility foundation on which Roquette bases the of a loss of profit of the kind just described. loss of profit which it describes is very A loss of profit is inconceivable unless it is uncertain. It seems to me that account presumed that the fixing of prices at a should be taken of that great uncertainty in higher level, in the absence of an deciding whether the damage alleged by abnormally favourable cash flow enjoyed by Roquette exceeds the 'risks inherent' in its competitors, leads almost certainly to business activity. greater profits for the traders concerned. However, the laws of economics provide no grounds for saying that the charging of higher prices, in a market open to compe tition, will secure higher profits.

The Commission On the contrary, the probable result of an stated that in respect of exports of starch increase in prices is a fall in sales. from France to the United Kingdom and Ireland overvalued monetary compensatory amounts were paid to the exporters. According to the Commission, 'the very 52 considerable currency fluctuations' recorded in those Member States 'gave rise to monetary compensatory amounts in 52 respect of exports to those countries', an 60. It is appropriate to bear in mind that at example being the currency variations in the hearing Roquette's representative did 1976. Quite apart from Regulation No not deny that his company had achieved a 652/76, which the Court found to be invalid considerable volume of exports during the on 15 October 1980, it was the entire set of period in which the excessive level of the rules on monetary compensatory amounts, monetary compensatory amounts made itself applying the calculation methods at the felt, which he said was attributable to material time, which set them at an 'pricing sacrifices during that period' and excessive level. That high level then alignment with competitors' prices. He benefited Roquette, the largest French himself thus illustrated perfectly the link exporter of starch, when it exported to the between price levels and turnover, United Kingdom and Ireland, in so far as conceding that a relatively low level of the currencies of those Member States were prices led to an increase in sales. In the undergoing considerable fluctuations. same way, a price rise would probably not have left turnover unaffected, and there is 52 — Commission's rejoinder, p. 6.

'particularly small in comparison with the price increases resulting, during the period 64. Finally, the Court must take account, in of application of the regulation, from the assessing such gravity, of the economic variations in the world market prices of significance, in the strict sense, of the inor- feeding-stuffs containing protein, which dinacy of the monetary compensatory were three or four times higher than the amounts. The Commission's Agent increase resulting from the obligation to 50 explained at the hearing that the burden of purchase skimmed-milk powder'. the erroneous calculation, that is to say the difference between the correct figure and the incorrect figure, represented a little less than 10% of the monetary compensatory The Court thus concluded that: amount payable and that the maximum charge which could have been made at that time was 2.5% of the price of the raw material (maize), the monetary gap then being at its greatest. He added that when 'the effects of the regulation on the profit- that gap was smaller, as it was for most of earning capacity of the undertakings did not 1976, the unlawful charge borne by ultimately exceed the bounds of the Roquette represented 1.3% of the price of the raw material. Roquette has not 50 — Joined Cases 83 and 94/76, 4, 15 and 40/77 HNL, supra, contested those assessments. paragraph 7

OPINION OF MR DARMON — CASE 20/88

economic risks inherent in the activities of to have suffered a loss going beyond the the agricultural sectors concerned'. bounds of the economic risks inherent in its business, even if the group of traders affected by the over-high monetary compensatory amounts, namely the French starch exporters, is very small. On the basis 66. On the other hand, in the case of Ireks- of the information so far produced to the 53 Arkady the Court took the view that the Court, I do not think it is possible, alleged damage had exceeded the bounds of otherwise than by relying on mere those risks in so far as the abolition of the assertions, to conclude that the alleged refunds for meal had benefited starch by damage exceeded those bounds and between 6.3 and 8.6%. therefore to decide that the Community has incurred liability.

68. Admittedly, appraisal of the economic 70. It is undeniable that such a conclusion significance of the illegality determined in can do nothing to remove the economic the present case requires the percentage at disadvantage suffered by certain traders, issue here to be placed in the context of the including Roquette, as a result of the number of traders concerned. It is true that, Court's judgment of 15 October 1980. The since they are few, it cannot be asserted that fact nevertheless remains that the principles there was no damage going beyond the governing the Community's non-contractual bounds of the inherent economic risks. But I liability in relation to the common agri­ think that the assessment to be made must cultural policy, which have been expounded also take account of the considerable uncer­ clearly in the decisions of the Court and are tainty surrounding the very plausibility of perfectly well known, do not provide scope the loss of profit purportedly suffered by for the reparation of all damage suffered. Roquette and of the probability of profits To qualify for compensation, the damage also made by that company from the higher must be particularly serious; but that is not level of monetary compensatory amounts. If the case here and, it must be pointed out, it those factors are taken into account, it would not be the case even if there were seems to me that Roquette can hardly claim rules imposing liability without fault. This was properly emphasized in the Court's 54 50 — Joined Cases 83 and 94/76, 4, 15 and 40/77 HNL, supra, judgment of 6 December 1984 in Biovilac. paragraph 7. 53 — Judgment of 4 October 1979 in Case 238/78 [1979] ECR 2955. 54 — Case 59/83 [1984] ECR 4057, paragraphs 28 and 29.