C-152/88
ECLI:EU:C:1989:590
- Súd
- Súdny dvor Európskej únie
- IČS
- 61988CC0152
- Zdroj
- eur-lex.europa.eu ↗
OPINION OF MR TESAURO —CASE C-152/88
O P I N I O N OF M R ADVOCATE GENERAL TESAURO delivered o n 22 N o v e m b e r 1 9 8 9 *
Mr President, By Regulation No 984/88, the Commission Members of the Court, amended Article 1 of Regulation No 962/88. The suspension was prolonged so as to apply from 18 to 29 April; moreover, no further provision was made — Article 1 (2) being repealed — regarding the rejection of applications affected by the suspension.
1. The applicant company, a French importer of fresh fruit, seeks the annulment of Commission Regulations (EEC) Nos 962/88, 984/88 and 1040/88 of 12, 14 and Finally, on 20 April 1988 the Commission 20 April 1988 respectively. 1 Those regu- issued Regulation No 1040/88, the purpose lations were adopted as part of the system of which is twofold. First (see Article 2), it of surveillance of imports of dessert apples amends Article 1 of Regulation N o 962/88, from third countries introduced by the deferring the end of the suspension of the Commission by Regulation (EEC) No issue of import licences for Chilean apples 346/88 of 3 February 1988. 2 Under that from 29 April 1988 to 31 August 1988 and, system, imports are subject to the presen- secondly (Article 1), lays down maximum tation of a licence, which is to be applied quantities — to apply until the end of for from the national authorities and issued, the 1988 marketing year — for imports of pursuant to Article 3(3) of Regulation No dessert apples originating in a number of 346/88, on the fifth working day following non-member countries (in particular, South the day on which the application is lodged Africa, New Zealand, Australia, Argentina 'unless measures are taken within that time'. and Chile).
A — Admissibility
By way of protective measure, the Com- mission adopted Regulation No 962/88 which suspended the issue of import licences for dessert apples from Chile from 15 to 22 2. The applicant challenges those regu- April and also provided that applications lations on the ground that, despite the form pending on 18 April for import licences attributed to them, they are to be regarded were to be rejected (see Article 1(1) and rather as a series of decisions which are of (2))· direct and individual concern to the under- takings affected by the suspension. The * Original language: Italian. Commission has not expressed a view on 1 — Commission Regulation (EEC) No 962/88 of 12 April this aspect, but in the event of the Court 1988; Commission Regulation (EEC) No 984/88 of 14 April 1988; Commission Regulation (EEC) No 1040/88 of considering that in this case the conditions 20 April 1988. 2 — Commission Regulation (EEC) No 346/88 of 3 February laid down in the second paragraph of 1988. Article 173 of the Treaty are not satisfied, it
I - 2492
SOFRIMPORT v COMMISSION
could, of its own motion, declare the to be inadmissible and making (paragraph application inadmissible pursuant to Article 12) the following observation: 'It must be 92(2) of the Rules of Procedure. 3 pointed out that a regulation which suspends advance fixing concerns both applications pending at the time of suspension and those which are lodged 3. I should point out straight away that the during the period of suspension'. Court has already had occasion to consider the admissibility of an action brought by private persons against a suspending regulation, and declared it inadmis- Since I do not consider that there are any sible— judgment of 25 March 1982 in substantial differences as far as admissibility Case 45/81 Moksel [1982] ECR 1129. It is is concerned, between those previous cases true that in that case the Commission and the present case, I refer in general terms suspended the issue not of import licences to my Opinion in UCDV and to the cases but of advance-fixing certificates for export which I cited on that occasion (in particular refunds; however, I consider that fact to be the judgments in International Fruit and of no significance. On the other hand, the CAM*). essential features of the case appear to me to be entirely comparable, and must be considered for the purpose of deciding whether or not the measure in question constitutes a regulation. In Moksel too the At this stage, I shall confine myself to a measures at issue prevented the issue of a number of observations on matters of detail document and, under the basic legislation, which should be read against the back- were adopted within the period — the ground of the reasoning already expounded so-called reflection period — between in my Opinion in UCDV. lodgment of the application and the day on which it should have been issued, that period being specifically provided for in order to allow the Commission to check 4. In the first place, it should be noted that whether, in the meantime any imbalance had Regulation N o 962/88 is not addressed to a emerged on the market which might, in the specific and identified group, a requirement light of the basic provisions, justify recourse that appears essential in the light of the to its power of suspension. International Fruit, CAM and UCDV cases. T h e suspension decided upon by the Commission on 12 April 1988 and effected by Regulation No 962/88 related in fact The problem again came to the fore both to the applications already submitted recently in Case C-244/88 UCDV, in which by that date and to any applications which I delivered my Opinion on 26 September of had not yet been lodged but might well have this year (judgment of 21 November 1989, been lodged subsequently. Under the regu- [1989] ECR 3811, at page 3819), proposing lation, the suspension was to remain in force that the application should be declared until 22 April; if account is taken of the inadmissible. I should point out that it was period of five days between lodgment of the as recently as yesterday that the Court gave application and the issue of the certificate, judgment in that case, declaring the action the suspension therefore also affected any
3 — Sec however judgment of 8 March 1988 in Joined Cases 4 — Judgments of 13 May 1971 in Joined Cases 41/70 to 44/70 62/87 and 72/87 Exécutif regional wallon ana Claverbel v International Fruit [1971] ECR 411 and of 18 November Commitiion [1988] ECR 1573, in particular paragraph 8. 1975 in Case 100/74 CAM [1975] ECR 1393.
I - 2493
OPINION OF MR TESAURO —CASE C-152/88
applications which might have been I therefore consider that the suspension at submitted in the days immediately following issue here derives from the exercise of a 12 April. legislative power intended to regulate and maintain the equilibrium of the market. Whilst it is true that the measure in question applies to a number of persons it is also true Moreover, it must be remembered that the that, to use an expression from a previous suspending regulation, which, as I have said, decision, that comes about 'by virtue of an was adopted on 12 April, was published on objective legal or factual situation defined the following day. Therefore, it was only on by the measure in relation to its purpose'. 5 13 April that the traders concerned became aware of the suspension. It is therefore probable that the suspension covered applications (like that of the applicant, for example) lodged with the national authority on 12 April, of which the Commission, when adopting the regulation, could not 6. N o r can it be considered that the actually have been aware. measure is of individual concern only to the importers whose goods were in transit at the time of the suspension. They too are affected by the regulation because they It seems to me therefore that the measure in are importers and lodged applications question related not to a specific and ident- for a licence — before or after the ifiable group, a numerus clausus, but t o a suspension — as required in general terms category of traders who were not and could by Regulation No 346/88; furthermore, as not be identified individually when the will become clearer shortly, no specific measure was adopted. provision was adopted in relation to those traders, which confirms that they are viewed in the same way and in relation to the same objective circumstances as all the other 5. It should also be borne in mind that the persons affected. status of the measure as a regulation is also confirmed by another factor. The suspension was not decided upon exclusively in relation to the applications submitted by traders. Those applications constitute one of the matters to be taken into account in assessing the need for a measure of that kind. The purpose of suspension, as is 7. My observations so far also apply to apparent from the basic legislation, is essen- Regulation No 984/88 and Article 2 of tially to remedy or prevent serious Regulation No 1040/88 which merely disturbance of the market in question as a amend Anicie 1 of Regulation N o 962/88, result of imports. T h e Commission therefore extending the period of the suspension. It acts in such cases on the basis of a compre- does not seem to me that those straight- hensive appraisal of the relevant economic forward amendments can be regarded as factors and not by reference to the having the effect of changing the nature of applications lodged by individual traders, the measure to which they are made, who, moreover, are not individually known converting it from a regulation into a set of to the Commission but merely account for individual decisions. p a n of the total volumes notified to it by the national authorities. 5 — Sec most recently the judgment of 29 June 1989 in Joined Cases 250/86 and 11/87 RAR [1989] ECR 2045.
I - 2494
SOFIUMPORT v COMMISSION
8. It is thus clear, without the need for any (b) for purposes (review of the overall comment, that Regulation No 1040/88 is a situation prevailing on the apple market) genuine regulation as regards that part of it other than those provided for in the which determines the maximum permitted basic regulations; quantities for imports of dessert apples from a number of non-member countries until the end of August 1988. (c) without account being taken of the position of products in transit as required by Article 3(3) of Regulation 9. I therefore consider that the present (EEC) N o 2707/72. 7 application must be declared inadmissible in its entirety. Moreover, Regulation No 1040/88 is also, it is maintained, entirely unlawful in so far However, inter alia because of the as it introduces a de facto quota regime for importance of the present proceedings and imports, and by virtue of Article 113 of the in the event of the Court's considering that Treaty only the Council is empowered to the contested suspending regulation (and adopt such measures. the subsequent amending measures) is not of general scope, I think that it is appro- priate to consider the substantive aspects of 11. Let me say immediately that it does not the case as well. seem absolutely necessary to consider the merits of the latter criticism. I think in fact that the general scope and, therefore, the status of Regulation N o 1040/88 as a B — Substance genuine regulation are entirely clear and incontestable, in so far as it provides for the introduction of general quotas for imports 10. The applicant claims that, in adopting of dessert apples from a number of the suspension measure in question, the non-member countries until the end of the Commission exceeded its powers under the 1988 marketing year. basic regulations.
As regards the remaining criticisms I have In particular, Regulations Nos 962/88, no hesitation in saying that submissions (a) 984/88 and Article 2 of Regulation No and (c) appear to me to be well founded. 1040/88 are alleged to be unlawful since the My analysis will therefore focus primarily suspension of the issue of import licences on the points raised by them. for apples from Chile was decided upon by the Commission: Submission (a)
(a) In the absence of any serious disturbance within the meaning of the 12. As regards submission (a), it must first first subparagraph of Article 29(1) of be pointed out that by virtue of the first Regulation (EEC) No 1035/72; 6 7 — Regulation (EEC) No 2707/72 of the Council of 19 6 — Regulation (EEC) N o 1035/72 of the Council of 18 May December 1972 (OJ, English Special Edition 1972 (28 to 1972 (OJ, English Special Edition 1972 (II), p. 437). 30 December) p. 3).
I-2495
OPINION OF MR TESAURO —CASE C-152/88
subparagraph of Article 29(1) of Regulation certain qualities by comparison with the N o 1035/72, protective measures of the previous period. type at issue may be adopted where two conditions are satisfied:
14. That error does not merely affect a point of detail in the statement of the (i) the Community market is experiencing reasons on which the measure was based. or is threatened with 'serious distur- Price levels constitute an essential indicator bances' which may endanger the for determining, as required by the regu- objectives of the common agricultural lation, whether or not the market is experi- policy; encing serious disturbances. That situation, as envisaged in the regulation, takes only one form, namely a serious imbalance due to the market's inability to continue (ii) those disturbances are caused by absorbing excess products from imports. non-member countries. However, an imbalance — what is more, a serious imbalance — caused by surplus supply could not conceivably be regarded as existing in a Secondly, it must be emphasized that, whilst situation like that with which the present the existence of those conditions is a matter case is concerned (when Community to be assessed on a discretionary basis, production was stable) without giving rise to Article 29 must nevertheless be interpreted a clearly discernible downward pressure on and applied restrictively, since it is clearly a prices. The particular importance of price provision derogating from the general levels for the purpose of assessing the prohibition of charges and measures having market situation is also accounted for, of equivalent effect in relation to imports from course, by the fact that they constitute an non-member countries contained in Article indicator which reflects the combined effect 22 of the same regulation. of the various conditions and forces which influence the market and therefore provides the most reliable barometer for detecting the emergence of an unfavourable economic 13. Having regard to those preliminary situation. considerations, I shall now consider the criticism levelled by the applicant. In the first place it must be noted that, in adopting Regulation N o 962/88, the Commission 15. Moreover, the fact that price levels are committed a serious and manifest error an essential indicator for the purpose of regarding price levels. As is apparent from adopting a measure like the one at issue the fourth recital in the preamble to that here is expressly confirmed by the basic regulation, the Commission considered that legislation, specificially Article 1 of Council 'prices considerably lower than those in the Regulation No 2707/72. That provision in previous marketing year' prevailed on the fact requires that, in order to determine market in question; on the contrary, whether the situation referred to in the first however, it has been established — and was subparagraph of Article 29(1) of Regulation expressly conceded by the Commission at No 1035/72 has arisen, specific account the hearing — that that statement is wholly must be taken in particular of 'the prices incorrect, since prices during the 1987/88 of domestic products recorded on the marketing year remained stable and in fact Community market, or the probable trend there was a slight increase in the price of of those prices, and in particular their
I - 2496
SOFÎUMPORT » COMMISSION
tendency to fall or rise excessively in reached levels, both in absolute terms and relation to basic prices or, with regard to by reference to Community production products which do not have basic prices, in (which, moreover, tended to be subie) relation to the prices of preceding years'. that indeed greatly exceeded those of the 1987/88 markeung year, and the Commission did not consider it necessary to adopt protective measures in that case.
Clearly therefore, it seems to me, the Commission made an error of appraisal which, in so far as it affects a matter which is decisive in justifying the adoption of protective measures, is of itself likely to 18. But even if it were admitted that, in the detract from the logical cohesion of the absence of any pressure on prices, the levels statement of the reasons on which the of intervention were such that the measure is based and, therefore, to Commission had reason to consider that undermine its validity. the market was experiencing a serious disturbance, it could always be pointed out that in Regulation No 962/88 no proof is given of the fulfilment of the second condition laid down in Article 29: in other words, there are no grounds for concluding 16. It is true that the Commission that the alleged disturbance of the market, contended that it also considered other characterized by an increase in intervention, factors, in particular the need to defend the was caused by imports. Community market from a foreseeable increase in imports from non-member countries at a time when recourse to inter- vention was increasing considerably. It is also true that the findings of fact relating to the pattern of imports and of sales into On that specific point, it seems to me that intervention, mentioned in the third and the applicant has sufficiently proved that the fourth recitals to the preamble to Regu- increase in intervention recorded in the lation No 962/88, are correct. 1987/88 marketing year, which, moreover, was not exceptional having regard to the previous pattern, was more properly attrib- utable to internal causes and is a structural phenomenon occurring within the organ- 17. It seems to me, however, in the first ization of the market in question. In fact, place that where there is price stability (a the intervention was concerned primarily fact which is in itself indicative of a with apples of inferior quality, grown in balanced market) an increase in inter- well-defined regions of the Community, vention, although relevant, is not sufficient whose prices were considerably lower (up to to show, as required by Article 29, the five or six times) than those of apples of existence of a serious disturbance. Increased superior quality, which is doubtless the intervention, although a negative devel- category to which the imported apples opment, is not necessarily incompatible with belong. Even though it might be going too an economic situation which is generally far to say that those lower-quality apples stable. Moreover, in the marketing years have practically no commercial outlets and prior to 1987/88, intervention was erratic are therefore to a considerable extent and in some years (1982/83 and 1984/85) produced exclusively in order to benefit
I - 2497
OPINION OF MR TESAURO —CASE C-1S2/88
from the Community intervention system, which the basic regulations made the the incontrovertible fact nevertheless adoption of exceptional protective measures remains that the price difference between subject. If that error had not been made, the those apples and the imported products of Commission would probably have arrived at superior quality (the first varying between a conclusion different from that which it in E C U 11.91 and 15.12 per 100 kg and the fact drew. second between E C U 49.74 and 65.20) and the stability of the average price level confirm that the market was substantially divided into two barely interdependent tiers. Finally, it must be remembered that, pre- cisely because of the exceptional nature of such measures, if in fact the Commission was unable to form a definite view on the 19. Admittedly, the possibility cannot be basis of its assessment of the information ruled out that the restriction on imports obtained, it should have refrained from decided upon by the Commission in some adopting the disputed suspension measure. measure alleviated the difficulties relating to intervention. It cannot be excluded that there is a limited possibility of substitution between the apples in each of the two tiers It seems to me therefore that in adopting of the market to which I just referred. Regulation N o 962/88 the Commission But the possibility of such competition by went beyond the limits imposed by the basic substitution, on which the Commission legislation. The regulation should therefore placed particular emphasis, does not seem to be annulled, together with Regulation No me to be sufficient to justify the disputed 984/88 and Article 2 of Regulation No measures. 1040/88 which are based on the same premisses as Regulation No 962/88, merely extending the duration of the suspension.
T h e Community legislation at issue does not in fact allow the Community, and in particular the Commission, to have recourse Submission (c) to restrictions on trade with non-member countries for the purpose of obviating, or rather alleviating, difficulties whose origin is internal. The basic legislation allows 21. In the applicant's opinion, Regulation recourse to exceptional remedies of that No 962/88 and the later amending kind only when it is shown that the provisions are unlawful since the Com- imbalance of the market was brought about mission failed to take account of the by extra-Community trade. situation of goods in transit, as required by Article 3(3) of Regulation No 2707/72.
20. From what I have said so far it seems to me that in the present case the Commission 22. It that connection, it should be has absolutely failed to provide the required remembered that Regulation N o 346/88 proof. On the contrary, it committed a introduced a system of surveillance on the factual error of essential importance basis of which intending importers of regarding the appraisal of the conditions to dessert apples from non-member countries
I - 2498
SOFRIMPORT v COMMISSION
were required to apply for an import licence 23. In order to determine whether the from the national authorities. In accordance Commission thereby infringed Article 3 of with a procedure well known in Community Regulation No 2707/72, it is necessary to spheres, the licence is issued only after a define the real scope of the obligation 'reflection period' (in this case, five working imposed by that provision. days as from the lodgment of the application) 'unless measures are taken within that time' (see Article 3(3) of Regu lation N o 346/88). Moreover, during that Three different interpretations have been period the applicant trader has no en put forward. titlement whatsoever to the issue of a licence — the Commission may decide to suspend the issue of licences, provided of course that it complies with the conditions for the exercise of its power to do so. 24. The first, advocated by the applicant, is Conversely, once a licence has been ob that goods in transit must in any event be tained, the trader has an indefeasible right allowed into the Community. The provision to carry out the operation to which the thus allows a legal exception which imposes licence relates. an absolute limit on the material extent to which suspension measures can be applied, as in the case of any other measure restricting trade with non-member countries : such measures can never be applied to That is the background to Article 3(3) of goods in transit. Regulation N o 2707/72. That provision affords specific protection for a specific category of traders, namely those whose products are in transit when the suspension That reading perhaps has the merit of measure is adopted. There is no doubt that conforming with Article XIII, (3), (b) of the the Commission is required to comply with General Agreement on Tariffs and Trade, Article 3 when it adopts suspension which, it will be remembered, does not have measures of the kind at issue here. direct effect but is nevertheless binding on the Community. However, the clear and absolutely unequivocal wording of the Community provision militates against it. The latter merely requires account to be In the sixth recital in the preamble to Regu taken of the special situation of products in lation N o 962/88, the Commission stated: transit to the Community, and that expression certainly does not amount to an obligation to guarantee access for the products in question to the Community in all cases and at all times. 'since the period of validity of import licences has been fixed so as to cover amply the dispatch of dessert apples to the Community and to permit the operators to obtain import licences before the ships That conclusion also appears to be depart, no account should be taken of consistent with the need mentioned by the goods being transponed to the Community Court in its judgment of 5 Mav 1981 in other than those for which import licences Case 112/80 Dürbeck [1981] ECŔ 1095 not have been issued'. to interpret that provision widely since the
I - 2499
OPINION OF MR TESAURO —CASE C-152/88
efficacy of the protective measures adopted licence has been issued suspension would must not be put at risk. That finding was be inconceivable; at most there might be repeated in the order given on 10 June 1988 the possibility of cancellation of the in the present case in response to an licence — but that is a wholly different and application for interim relief, where it is also absolutely exceptional case. stated that, in principle, at least in certain particularly critical circumstances, it cannot be excluded that the Commission may be able to comply with Article 3 even if it does not exempt goods in transit to the On the other hand, the specific guarantee Community from the application of the provided for in Article 3 is intended to take protective measures (paragraph 22). effect earlier, at a different stage: during the 'reflection period' which I mentioned earlier, between the lodgment of the application and the issue of the licence. It is at that stage that a trader whose goods are in transit benefits from the guarantee contained in Article 3, a provision which, 25. The second interpretation, put forward moreover, is intended to lay down a by the Commission, in conformity with the condition for the exercise of the power to recital in the preamble to Regulation No adopt suspension measures. The Com- 962/88 referred to earlier, is that traders mission's argument that a trader is protected whose goods are in transit are adequately by the possibility of obtaining a licence protected by the simple fact that they were before shipping the goods is tantamount to in a position to obtain an import licence stating that Article 3 is inoperative in the before the goods were loaded aboard the phase during which the restrictive measure vessel. In the present case, that possibility is issued, that is to say specifically in the derives from the fact that the duration of phase in which that guarantee — as is the licence, whose validity was extended moreover apparent from the wording of the from 30 to 40 days, was sufficient (this provision in question — is intended to come question of fact has, however, been into play. vigorously disputed) to cover the journey from Chile to Europe.
In other words, the Commission's argument leads (as indeed clearly emerges from the wording of the recital mentioned earlier) no more and no less than to a failure to take I must say immediately that that view seems due account of the position of goods in transit when the suspension is decided upon. unacceptable in so far as it leads to a nihilistic interpretation of Article 3. It is clear that as soon as a trader has obtained an import licence he acquires a right to import the product into the Community. But 26. I think in fact that it is more appro- his right in those circumstances derives not priate to adopt a third interpretation on from Article 3 but from mere possession of which, if I am not mistaken, the Court's the licence. In other words, when he has order made on the application for interim obtained a licence he is no longer caught by relief was based. According to that the suspension measures. Such measures approach, the provision in question is suspend the issue of licences but once a intended essentially to protect the legitimate
I - 2500
SOFRIMPORT v COMMISSION
expectations of traders. Consequently, once such a licence before loading the goods if they are in transit, goods should in principle they wished to ensure that they would not enter the Community without the possibility be affected by restrictive measures. of running foul of any suspension measure. However, that guarantee — and here lies the difference from the first interpre- tation — protects traders only if, before The Commission also stated at the hearing, shipping the goods, they have not been departing from what it had said in its given a sufficiently clear indication that any written submissions, that it did not give any suspension measures might affect goods in indication to that effect through informal transit as well. Where such a warning has been given to traders, they are aware of the contacts with the trade associations. fact that goods which have been shipped, without the prior issue of a licence, are not immune from restrictive measures; there is no reason therefore to protect their 28. I therefore consider that, in adopting legitimate expectations. Regulation No 962/88 and the subsequent amendments thereto, the Commission did not comply with the first subparagraph of Article 3(3) of Regulation N o 2707/72. The applicant's submission in that regard should thus also be upheld. That interpretation also has the merit of being consistent if not with the letter then at least with the spirit of the GATT provision mentioned earlier. It is also confirmed, as My analysis so far is conducive to the pointed out by the Court in its order, by the application being upheld as far as its merits practically invariable and consistent practice are concerned, but of course that is subject of the Commission which, unless clear to what I stated earlier regarding its ad- warnings were given, has always (with the missibility. exception of one case only) not made the suspension measure applicable to goods in transit.
I shall therefore consider in less detail the remaining submission.
27. If this third interpretation is held to be correct, it must follow that in the present Submission (b) case the Commission clearly neglected its obligations under Article 3. It gave no clear signal to the traders concerned of the possi- bility of the suspension measure being applied also to goods in transit. No indi- 29. In the applicant's opinion, Article 29 of cation to that effect is to be gleaned from Regulation N o 1035/72 does not give Regulation No 346/88. That regulation authority for protective measures intended merely shows that importers could obtain an to allow an overall review of the market in import licence before shipping the goods. apples, the reason put forward in the But that does not mean that they were preamble to Regulations Nos 962/88 and aware of the fact that they had to obtain 984/88.
I-2501
OPINION OF MR TESAURO —CASE C-152/88
30. It is true that protective measures are such circumstances of the limitation of justified where there is a serious disturbance liability for damage caused by legislative brought about by imports. But if it is measures, it must be noted that, in the admitted that such a situation has come present case, the restrictive conditions upon about, it is entirely consistent with the which, according to well-established purposes of the measure in question to decisions of this Court, 9 the existence of review the market situation. The measure is such liability is conditional, appear to be intended to remedy or prevent serious satisfied. disturbances on the market. It is therefore based on an assessment of such difficulties or risks. Consequently, it must be of a sufficient duration to enable the Commission to verify whether the market is becoming more stable or whether, on the other hand, the disturbance is persisting or 32. In the first place, by adopting excep- becoming worse to such an extent as to tional or protective measures in a factual justify an extension of the measures. The situation clearly different from that required time needed for reviewing the situation must by the basic regulations, and by wholly therefore be taken into account in deter- failing to take account of the special mining the period for which the protective position of goods in transit, as required by measures are to apply: and it was precisely the same regulations, the Commission in that context that 'the period necessary for 'manifestly and gravely disregarded the a review of the overall situation on the limits on the exercise of its powers'. 1 0 market' was taken into account by the Commission in adopting the contested regu- lations.
I consider therefore that this submission must in any case be rejected. Similarly, it must be concluded that there is a 'serious breach of a superior rule of law for the protection of the individual' ' ' in so C — Compensation for damage far as the finding of unlawfulness relates to the infringement of provisions which, pursuant to commitments entered into by 31. If the Court should consider that the the Community at international level, are contested regulations do not constitute intended to ensure freedom of trade measures of general scope and consequently with non-member countries, specifically declare the action admissible and then uphold it on the merits, it will have to give a 9 — See judgments of 2 December 1971 in Case 5/71 Zucker- decision on the claim for compensation for fabrik [1971] ECR 975, of 25 May 1978 in Joined Cases 83/76 and 94/76, 5/77, 15/77 and 40/77 HLN [1978] damage. ECR 1209, of 4 October 1979 in Case 238/78 lreks-Arkady [1979] ECR 2955, in Joined Cases 241/78, 242/78, and 245/78 to 250/78 DGK[1979] ECR 3017, in Joined Cases 261/78 and 262/78 Interquell Stärke-Chemie [1979] ECR In that regard, whatever doubts may arise as 3045, of 5 December 1979 in Joined Cases 116/77 and 124/77 Amylum [1979] ECR 3497, of 17 December 1981 in to the 'legislative' nature of a measure of Joined Cases 197/80 to 200/80, 243/80, 245/80 and individual concern 8 and the applicability in 247/80 Ludwigsha/ener Walzmühle [1981] ECR 3211, of 6 December 1984 in Case 59/83 Biovilac [1984] ECR 4057, of 19 September 1985 in Joined Cases 194/83 to 206/83 Astern [1985] ECR 2815 and of 30 May 1989 in Case 8 — The point was raised by Mr Advocate General VerLoren 20/88 Roquette Frères [1989] ECR 1553. van Themaat in his Opinion in Case 59/84 Tezi [1986] ECR 887, particularly at p. 914, but was not considered in 10 — See in particular HLN, paragraph 6. the judgment (of 5 March 1986). 11 — Ibid., paragraph 4.
I - 2502
SOFRIMPORT v COMMISSION
protecting the legitimate expectations of exceeds, 'the bounds of the economic risks traders and, more generally, guaranteeing inherent in the activities of the . . . sectors them the necessary certainty regarding the concerned'. n conditions on which the effective exercise of their rights may depend in certain circum- 33. That answers the question whether there stances. is liability. As regards the quantum of damages, I think it would be appropriate for Finally, it seems to me that the damage the Court to call on the parties to agree on complained of by the applicants in this case, the calculation thereof within a specified deriving from their being prevented from period, on the expiry of which, without any placing their products on the market of agreement being reached, it would be destination within the scheduled period, incumbent upon the Court to make an falls substantially outside, and indeed order.
34. In view of all the foregoing considerations, I suggest that the Court:
(i) declare the application inadmissible;
If, however, the application is declared admissible, the Court should:
(i) uphold the application for the annulment of Regulations Nos 962/88 and 984/88 and Article 2 of Regulation N o 1040/88;
(ii) declare that the Community is liable for the damage arising from those unlawful measures, leaving determination of the amount of compensation to be agreed by the parties or, if no agreement is reached, to be determined in a subsequent decision of the Court.
12 — Ibid, paragraph 7.
I-2503