C-138/95

C A M P O EBRO INDUSTRIAL A N D O T H E R S v C O U N C I L

OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 21 November 1996

I — Introduction 1 January 1993 with a view to achieving the single European market. Accordingly the Regulation brought to an end the transitional scheme applicable to that sector in conse- quence of the temporary derogation granted by Article 70(3)(a) of the Act concerning the 1. The appellants have appealed against the Conditions of Accession of the Kingdom of judgment delivered by the Court of First Spain and the Portuguese Republic to the Instance of the European Communities on European Economic Community, 3 signed 21 February 1995 in Case T-472/93. * Their on 12 June 1985 ('the Act of Accession'), and appeal is however limited to the part of the which had been established on account of judgment in which the Court of First the higher prices prevailing in the sector in Instance rejected the appellants' claim to be question in Spain at the time of accession. entitled to compensation for damage arising from the non-contractual liability which in their view was incurred by the Community as a result of the Council's adoption of Regulation N o 3814/92.

II — Facts

4. I refer to the account given in the judg- ment of the Court of First Instance of 21 February 1995 for a fuller description of the In my opinion, the reasoning of the Court of relevant provisions, the facts which gave rise First Instance on this issue was correct and to the proceedings before that court and the exhaustive. That court found that, on the pleas in law put forward by the appellants in basis of the actual wording of Article support of their action. 70(3)(b) of the Act of Accession, it fell within the Council's discretion to legislate on that matter precisely in order to bring about the alignment of prices in the sector in point. It therefore considered that the Act of Accession could not have given rise to Ill — Grounds of appeal expectations such as those claimed by the appellants.

5. The appellants have challenged that judg- ment of the Court of First Instance solely as I concur with that reasoning of the Court of regards the matter of compensation for dam- First Instance. In my opinion, it contains no age, in respect of which they have put for- defects of logic or erroneous interpretations ward the grounds of appeal examined below. of law and must therefore be upheld. Conse- quently, the first ground of appeal must be rejected.

6. First, the appellants claim that the Court of First Instance infringed Article 70(3)(b) of the Act of Accession, and at the same time 7. Under the second and fourth grounds of the principle of protection of legitimate appeal, which should be considered together expectations and Article 190 of the EC since the arguments are substantially the Treaty, in finding that the appellants could same, the appellants claim that the Court of not derive any legitimate expectation from First Instance infringed both the principle of the Act of Accession. Specifically, the appel- the protection of legitimate expectations and

Article 28 of the Single European Act is in my opinion irrelevant for the purposes of this case. Article 28 merely states that the provisions of the Single European Act are To my mind, the reasoning of the Court of •without prejudice to the provisions of the First Instance on that point cannot be Act of Accession: consequently, the Single faulted. That court rightly pointed out that European Act neither takes anything away Regulation N o 1716/91 did not specify the from nor adds anything to what is laid down methods of price alignment for the second in Article 70(3)(b), or in Regulation N o stage, that is to say the period following 1 1716/91, which was in its turn adopted on January 1993. Regulation N o 1716/91 pro- the basis of the abovementioned provision of vided for prices to be aligned with effect the Act of Accession. from 1 January 1993 and deferred the provi- sion of measures, if any, for the future to other legislation which would have to be adopted subsequently. In this case too, then, the margin of discretion, as thus determined, available to the Community legislature Accordingly, I do not consider it necessary remained sufficiently broad. For that reason for me to examine the findings of the Court I consider that the second and fourth of First Instance regarding the question grounds of appeal put forward by the appel- whether the realignment of prices in the lants must be rejected. Spanish sugar sector should have been fore- seeable by an averagely prudent and well- informed trader. Those findings relate to matters of pure fact concerning develop- ments on the Spanish sugar market and, in my view, fall outside the scope of this Court's power of review under Article 51 of 8. Under the third ground of appeal the its EC Statute. appellants contend that the Court of First Instance incorrectly applied Article 28 of the Single European Act and, in conjunction with this, infringed the principle of protec-

12. Consequently, the appeal must be dis- missed in its entirety. The rationale of the appellants' case is that the factual circumstances on the two markets are similar and must therefore be treated similarly by the Community legislature. The appellants' objection is, essentially, that sugar IV — Costs producers and isoglucose producers are not treated equally. The Court of First Instance, on the other hand, draws a distinction between the two sectors on the basis of the specific particulars of the respective produc- Under Article 69(2) and (4) of the Rules of tion processes and of the need to maintain Procedure, the unsuccessful party is to be vast stocks of the finished product, which ordered to pay the costs, with the exception exists, according to it, only in the case of of those incurred by institutions which have sugar production and not in the case of iso- intervened. glucose.

The appellants must therefore be ordered to Here again, however, we are concerned with pay the costs of the proceedings, with the factual reconstructions of the market and of exception of those incurred by the Commis- the related technical processes for producing sion, which must be borne by that institu- sugar and isoglucose, which cannot be sub- tion.

I - 2032

CAMPO EBRO INDUSTRIAL AND OTHERS v COUNCIL

V — Conclusion

13. In the light of the foregoing considerations I propose that the Court should: