Court of Justice of the European Communities (including Court of First Instance Decisions)

1 . APPLICATION FOR ANNULMENT - NATURAL OR LEGAL PERSONS - MEASURE OF DIRECT AND INDIVIDUAL CONCERN TO THEM - DECISION IN THE FORM OF A REGULATION - ADMISSIBILITY
( EEC TREATY , SECOND PARAGRAPH OF ARTICLE 173 )
2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - SUGAR - EXPORT LICENCES - ADVANCE FIXING OF REFUND - ALTERATION OF RATES OF EXCHANGE - CONSEQUENCES FOR PERSONS CONCERNED - OPTION TO CANCEL LICENCES - RIGHT TO COMPENSATION FOR THE DISADVANTAGE SUFFERED
( COUNCIL REGULATION NO 878/77 , ARTICLE 4 ( 2 ); COMMISSION REGULATIONS NO 937/77 , ARTICLE 2 , AND NO 1583/77 )
3 . APPLICATION FOR ANNULMENT - SUBMISSIONS - FRUSTRATION OF LEGITIMATE EXPECTATION - ADMISSIBILITY
( EEC TREATY , ARTICLE 173 )

1 . AN APPLICATION BY NATURAL OR LEGAL PERSONS AGAINST A PROVISION WHICH , ALTHOUGH CONTAINED IN A REGULATION , AMOUNTS IN SUBSTANCE TO A DECISION BECAUSE IT IS OF JUST THE SAME DIRECT AND INDIVIDUAL CONCERN TO THEM AS IF IT HAD BEEN ADDRESSED TO THEM IS ADMISSIBLE .

2 . WITHIN THE FRAMEWORK OF THE RULES RELATING TO THE CONSEQUENCES OF ALTERATIONS IN THE RATES OF EXCHANGE TO BE APPLIED IN THE AGRICULTURAL SECTOR , AS REGARDS EXPORT LICENCES INVOLVING ADVANCE FIXING OF AMOUNTS TO BE PAID OR REFUNDED THE SYSTEM FOR THE PAYMENT OF COMPENSATION IS NOT BY ITSELF LESS FAVOURABLE TO THE PARTIES CONCERNED THAN THAT OF THE RIGHT TO CANCEL LICENCES ; ALTHOUGH IN SOME SPECIFIC CASES ONE OF THE TWO SYSTEMS MAY PROVE TO BE MORE FAVOURABLE TO THE PARTY CONCERNED , IN GENERAL THEY EACH OFFER ADVANTAGES AND DISADVANTAGES WHICH ARE OF EQUAL VALUE TO THE TRADER .

3 . THE SUBMISSION THAT THERE HAS BEEN A BREACH OF THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION IS ADMISSIBLE IN THE CONTEXT OF PROCEEDINGS INSTITUTED UNDER ARTICLE 173 OF THE TREATY , SINCE THE PRINCIPLE IN QUESTION FORMS PART OF THE COMMUNITY LEGAL ORDER WITH THE RESULT THAT ANY FAILURE TO COMPLY WITH IT IS AN ' ' INFRINGEMENT OF THIS TREATY OR OF ANY RULE OF LAW RELATING TO ITS APPLICATION ' ' WITHIN THE MEANING OF THAT ARTICLE .

IN CASE 112/77
AUGUST TOPFER & CO . GMBH , HAMBURG , REPRESENTED BY KURT MITTELSTEIN , HANS PAETOW AND WOLFGANG BICHMANN , RECHTSANWALTE , HAMBURG , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , 34B , RUE PHILIPPE II ,
APPLICANT ,
V
COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , PETER GILSDORF , ASSISTED BY JACQUES DELMOLY , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,
DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF COMMISSION REGULATION ( EEC ) NO 1583/77 OF 14 JULY 1977 ( OFFICIAL JOURNAL 1977 , NO L 175 , P . 17 ) OR ALTERNATIVELY FOR COMPENSATION

1BY AN APPLICATION LODGED AT THE COURT ON 15 SEPTEMBER 1977 THE APPLICANT REQUESTED THE COURT TO ANNUL COMMISSION REGULATION ( EEC ) NO 1583/77 OF 14 JULY 1977 AMENDING REGULATION ( EEC ) NO 937/77 AS REGARDS SUGAR EXPORTED UNDER CERTAIN TENDERING ARRANGEMENTS ( OFFICIAL JOURNAL 1977 , NO 175 , P . 17 ) AND , ALTERNATIVELY , TO DECLARE THAT THE COMMISSION IS LIABLE FOR THE DAMAGE WHICH THE APPLICANT ALLEGES IT HAS SUFFERED AS A RESULT OF THAT REGULATION .

2THE DISPUTE RELATES TO THE APPLICATION OF THE COMMUNITY RULES GOVERNING THE CONSEQUENCES OF THE ALTERATIONS IN THE VALUE OF THE UNIT OF ACCOUNT USED FOR THE COMMON AGRICULTURAL POLICY AS FAR AS CONCERNS EXPORT LICENCES INVOLVING THE ADVANCE FIXING OF AMOUNTS TO BE PAID OR REFUNDED .

3ARTICLE 4 ( 1 ) OF REGULATION ( EEC ) NO 1134/68 OF THE COUNCIL OF 30 JULY 1968 LAYING DOWN RULES FOR THE IMPLEMENTATION OF REGULATION ( EEC ) NO 653/68 ON CONDITIONS FOR ALTERATIONS TO THE VALUE OF THE UNIT OF ACCOUNT USED FOR THE COMMON AGRICULTURAL POLICY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 396 ) PROVIDES THAT IN THE CASE OF AN ALTERATION OF THE RELATIONSHIP BETWEEN THE PARITY OF THE CURRENCY OF A MEMBER STATE AND THE VALUE OF THE UNIT OF ACCOUNT , THE AMOUNTS WHICH HAVE BEEN FIXED IN ADVANCE FOR A TRANSACTION OR PART OF A TRANSACTION STILL TO BE CARRIED OUT AFTER THAT ALTERATION SHALL BE ADJUSTED BY USING THE NEW PARITY RELATIONSHIP .

NEVERTHELESS THE SECOND SUBPARAGRAPH OF THE SAID PARAGRAPH PROVIDES : ' ' HOWEVER , ANY PERSON WHO HAS OBTAINED ADVANCE FIXING OF SUCH AMOUNTS FOR A SPECIFIC TRANSACTION MAY , BY WRITTEN APPLICATION WHICH MUST REACH THE COMPETENT AUTHORITY WITHIN THIRTY DAYS OF THE ENTRY INTO FORCE OF THE MEASURES FIXING THE ALTERED AMOUNTS , OBTAIN CANCELLATION OF THE ADVANCE FIXING AND OF THE RELEVANT DOCUMENT OR CERTIFICATE . ' '
4COUNCIL REGULATION ( EEC ) NO 557/76 OF 15 MARCH 1976 ON THE EXCHANGE RATES TO BE APPLIED IN AGRICULTURE AND REPEALING REGULATION ( EEC ) NO 475/75 ( OFFICIAL JOURNAL 1976 , NO L 67 , P . 1 ) DECLARES THAT THE PROVISIONS OF REGULATION NO 1134/68 ARE APPLICABLE , BUT ARTICLE 5 ( 2 ) OF REGULATION ( EEC ) NO 557/76 MAKES THE RESERVATION : ' ' HOWEVER ARTICLE 4 ( 1 ), SECOND SUBPARAGRAPH OF REGULATION ( EEC ) NO 1134/68 SHALL APPLY ONLY IF THE APPLICATION OF THE NEW REPRESENTATIVE RATES IS DISADVANTAGEOUS FOR THE PARTY CONCERNED . ' '
COUNCIL REGULATION ( EEC ) NO 1451/76 OF 22 JUNE 1976 AMENDING REGULATION ( EEC ) NO 557/76 ON THE EXCHANGE RATES TO BE APPLIED IN AGRICULTURE ( OFFICIAL JOURNAL 1976 , NO L 163 , P . 5 ) STATES IN THE LAST RECITAL IN THE PREAMBLE THERETO THAT IF THE AFORESAID RIGHT OF CANCELLATION WERE WIDELY EXERCISED ' ' IT COULD IN CERTAIN CASES SERIOUSLY HINDER GOOD COMMUNITY ADMINISTRATION OF A GIVEN AGRICULTURAL MARKET ' ' , AND ' ' PROVISION SHOULD THEREFORE BE MADE FOR IT TO BE REPLACED BY THE RIGHT TO COMPENSATION FOR THE DISADVANTAGE SUFFERED ' ' , ADDED A NEW SUBPARAGRAPH TO ARTICLE 5 ( 2 ) OF REGULATION ( EEC ) NO 557/76 WHICH READS : ' ' PROVISION MAY BE MADE FOR THIS DISADVANTAGE TO BE COMPENSATED FOR BY A SUITABLE MEASURE . IN SUCH A CASE THE PROVISIONS REFERRED TO IN THE FIRST SUBPARAGRAPH SHALL NOT APPLY ' ' .

5PURSUANT TO ARTICLE 5 OF REGULATION NO 557/76 AS THUS AMENDED THE COMMISSION PROVIDED IN REGULATION NO 1579/76 OF 30 JUNE 1976 LAYING DOWN SPECIAL DETAILED RULES OF APPLICATION FOR SUGAR ( OFFICIAL JOURNAL 1976 , NO L 172 , P . 59 ) THAT THE COMPENSATION REFERRED TO IN THAT ARTICLE WAS TO BE GRANTED FOR THOSE QUANTITIES OF WHITE SUGAR FOR WHICH CUSTOMS EXPORT FORMALITIES WERE COMPLETED ON OR AFTER 1 JULY 1976 AND FOR WHICH AN EXPORT LICENCE WAS ISSUED BEFORE 15 MARCH 1976 ; AT THE SAME TIME THE COMMISSION FIXED THE AMOUNT OF THE COMPENSATION FOR THE DIFFERENT MEMBER STATES IN AN ANNEX THERETO .

6THE ABOVE-MENTIONED PROVISIONS OF COUNCIL REGULATIONS ( EEC ) NOS 557/76 AND 1451/76 HAVE BEEN REPLACED BY ARTICLE 4 OF COUNCIL REGULATION ( EEC ) NO 878/77 OF 26 APRIL 1977 ON THE EXCHANGE RATES TO BE APPLIED IN AGRICULTURE ( OFFICIAL JOURNAL 1977 , NO L 106 , P . 27 ) WHICH READS AS FOLLOWS :
' ' ( 1 ) THE PROVISIONS OF REGULATION ( EEC ) NO 1134/68 IN RESPECT OF AN ALTERATION OF THE RELATIONSHIP BETWEEN THE PARITY OF THE CURRENCY OF A MEMBER STATE AND THE VALUE OF THE UNIT OF ACCOUNT SHALL APPLY .

( 2 ) HOWEVER , THE SECOND SUBPARAGRAPH OF ARTICLE 4 ( 1 ) OF REGULATION ( EEC ) NO 1134/68 SHALL APPLY ONLY IF THE APPLICATION OF THE NEW REPRESENTATIVE RATES IS DISADVANTAGEOUS TO THE PARTY CONCERNED .

BEFORE THE DATE OF APPLICATION OF THE NEW RATE IT MAY BE DECIDED TO OFFSET THIS DISADVANTAGE BY AN APPROPRIATE MEASURE . IN THIS CASE , ADVANCE FIXING AND THE CERTIFICATE OR DOCUMENT ATTESTING THERETO MAY NOT BE CANCELLED . ' '
IN PURSUANCE OF THAT PROVISION ARTICLE 2 OF COMMISSION REGULATION ( EEC ) NO 937/77 OF 29 APRIL 1977 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF COUNCIL REGULATION ( EEC ) NO 878/77 ( OFFICIAL JOURNAL 1977 , NO L 110 , P . 1 ) AS AMENDED BY COMMISSION REGULATION ( EEC ) NO 1372/77 OF 24 JUNE 1977 ( OFFICIAL JOURNAL 1977 , NO L 156 , P . 33 ) PROVIDED THAT :
' ' ( 1 ) THE COMPENSATION REFERRED TO IN THE SECOND SUBPARAGRAPH OF ARTICLE 4 ( 2 ) OF REGULATION ( EEC ) NO 878/77 SHALL BE GRANTED FOR WHITE SUGAR IN RESPECT OF WHICH THE CUSTOMS EXPORT FORMALITIES ARE COMPLETED ON OR AFTER 1 JULY 1977 ON THE BASIS OF EXPORT LICENCES ISSUED IN CONNEXION WITH AWARDS MADE BEFORE 26 APRIL 1977 UNDER PARTIAL INVITATIONS TO TENDER PURSUANT TO REGULATIONS ( EEC ) NO 210/75 AND ( EEC ) NO 2732/76 .
THIS COMPENSATION SHALL BE FIXED FOR THE MEMBER STATE CONCERNED AS SHOWN IN ANNEX I HERETO .

( 2 ) THE RIGHT OF CANCELLATION PROVIDED FOR IN THE LAST SUBPARAGRAPH OF ARTICLE 4 ( 1 ) OF REGULATION ( EEC ) NO 1134/68 SHALL NOT APPLY IN RESPECT OF THE EXPORT LICENCES REFERRED TO IN PARAGRAPH ( 1 ) ' ' .

THE ANNEX I REFERRED TO IN THE ARTICLE QUOTED FIXED THE COMPENSATION TO BE GRANTED PER 100 KILOGRAMS OF WHITE SUGAR AT DM 2.33 FOR THE FEDERAL REPUBLIC OF GERMANY .

7THOSE RULES HAVE BEEN AMENDED BY REGULATION NO 1583/77 , THE MEASURE CHALLENGED BY THIS ACTION , WHICH STATED IN A RECITAL IN ITS PREAMBLE THAT ' ' WITH EFFECT FROM 1 JULY 1977 , THE COMPENSATORY AMOUNTS IN THE SUGAR SECTOR HAVE BEEN CALCULATED ON THE BASIS OF THE INTERVENTION PRICE PLUS THE AMOUNT OF THE LEVY CHARGED ON SUGAR OF COMMUNITY ORIGIN UNDER THE SYSTEM FOR COMPENSATING STORAGE COSTS ' ' AND ' ' AS A RESULT OF THIS NEW METHOD OF CALCULATION , IT IS NECESSARY TO ADJUST THE AMOUNT OF THE COMPENSATION FIXED BY ARTICLE 2 OF REGULATION ( EEC ) NO 937/77 ' ' AND PROCEEDED IN ARTICLE 1 TO REPLACE THE AMOUNT OF DM 2.33 IN RESPECT OF COMPENSATION BY DM 1.87 .
8AT THE RELEVANT TIME THE APPLICANT HAD IN ITS POSSESSION A LARGE NUMBER OF EXPORT LICENCES WHICH GAVE IT THE RIGHT IF IT PROCEEDED TO EXPORT TO THE COMPENSATION IN QUESTION .

SINCE IT RECEIVED FOR THE EXPORTS WHICH IT EFFECTED AFTER 15 JULY 1977 , THE DATE OF THE ENTRY INTO FORCE OF THE REGULATION AT ISSUE , COMPENSATION CALCULATED AT THE RATE OF DM 1.87 ONLY AND NOT OF DM 2.33 PER 100 KILOGRAMS OF SUGAR , IT CONSIDERS THAT THE AMENDMENT WHICH HAS BEEN ADOPTED OF THE REGULATION AT ISSUE IS OF DIRECT AND INDIVIDUAL CONCERN TO IT .

IN ITS VIEW THAT REGULATION IS IN BREACH OF THE PRINCIPLES CONTAINED IN REGULATION ( EEC ) NO 653/68 OF THE COUNCIL OF 30 MAY 1968 ON CONDITIONS FOR ALTERATIONS TO THE VALUE OF THE UNIT OF ACCOUNT USED FOR THE COMMON AGRICULTURAL POLICY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( I ), P . 121 ) AND ALSO IN REGULATION ( EEC ) NO 1134/68 .
IN THE SECOND PLACE THE AMENDMENT EFFECTED BY THE REGULATION AT ISSUE IS A BREACH OF THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION AND IS FOR THIS REASON UNLAWFUL .

ADMISSIBILITY
9THE COMMISSION DOES NOT CHALLENGE THE ADMISSIBILITY OF THE APPLICATION . INDEED ARTICLE 2 ( AS AMENDED ) OF REGULATION NO 937/77 WAS ALREADY A MEASURE OPEN TO CHALLENGE WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 BECAUSE IT WAS OF DIRECT AND INDIVIDUAL CONCERN TO HOLDERS OF EXPORT LICENCES ISSUED IN CONNEXION WITH AWARDS MADE BEFORE 26 APRIL 1977 UNDER PARTIAL INVITATIONS TO TENDER .

SINCE THE LATTER DATE WAS PRIOR TO THAT OF REGULATION NO 937/77 THE NATURAL OR LEGAL PERSONS TO WHOM THE PROVISION REFERRED WERE IDENTIFIABLE ON THE BASIS OF THE MEASURES IMPLEMENTING THE RULES GOVERNING THE EXPORT OF WHITE SUGAR .

CONSEQUENTLY , ALTHOUGH THIS PROVISION WAS IN A REGULATION , IT AMOUNTED IN SUBSTANCE TO A DECISION OF JUST THE SAME DIRECT AND INDIVIDUAL CONCERNS TO HOLDERS OF EXPORT LICENCES , SUCH AS THE APPLICANT , AS IF IT HAD BEEN ADDRESSED TO THEM .

THESE CONSIDERATIONS APPLY ALL THE MORE TO THE REGULATION AT ISSUE IN SO FAR AS IT HAS AMENDED REGULATION NO 937/77 .
10THE APPLICATION IS THEREFORE ADMISSIBLE .

THE BREACH OF THE BASIC AGRICULTURAL RULES
11IT IS TRUE THAT THE GENERAL SYSTEM GOVERNING THE CONSEQUENCES OF CHANGES IN THE EXCHANGE RATES , AS INTRODUCED BY THE BASIC REGULATIONS , NAMELY REGULATION ( EEC ) NO 653/68 OF THE COUNCIL OF 30 MAY 1968 ON CONDITIONS FOR ALTERATIONS TO THE VALUE OF THE UNIT OF ACCOUNT USED FOR THE COMMON AGRICULTURAL POLICY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION , 1968 ( I ), P . 121 ) AND REGULATION ( EEC ) NO 1134/68 OF THE COUNCIL LAYING DOWN RULES FOR ITS IMPLEMENTATION , PROVIDES IN GENERAL THAT IN THE CASE OF AN ALTERATION OF THE PARITIES OF NATIONAL CURRENCIES AS AGAINST THE UNIT OF ACCOUNT THE HOLDERS OF IMPORT OR EXPORT LICENCES AND SIMILAR DOCUMENTS IN RESPECT OF WHICH THERE HAS BEEN ADVANCE FIXING MAY APPLY FOR THEIR CANCELLATION .

REGULATIONS NOS 557/76 AND 878/77 HAVE RESTRICTED THIS RIGHT BY LIMITING IT TO CASES WHERE ' ' THE APPLICATION OF THE NEW REPRESENTATIVE RATES IS DISADVANTAGEOUS TO THE PARTY CONCERNED ' ' THEREBY ELIMINATING TRANSACTIONS OF A PURELY SPECULATIVE NATURE WHICH MIGHT ADVERSELY AFFECT THE GOOD ADMINISTRATION OF THE COMMON AGRICULTURAL POLICY .

NEVERTHELESS THE SYSTEM THUS DEFINED LEAVES TRADERS FREE TO DECIDE INDIVIDUALLY WHETHER IT IS IN THEIR INTEREST TO KEEP IN FORCE THE ARRANGEMENTS WHICH LED TO ADVANCE FIXING OR ON THE OTHER HAND TO HAVE THEM CANCELLED .

12THE APPLICANT ' S ARGUMENTS AMOUNT TO THE PROPOSITION THAT , AS FAR AS CONCERNS WHITE SUGAR , THE OPPORTUNITY AFFORDED BY REGULATION NO 1451/76 TO REPLACE THE OPTION FOR TRADERS TO HAVE THEIR LICENCES CANCELLED BY THE OPTION FOR THE COMMUNITY TO INDEMNIFY THE PARTIES CONCERNED FOR THE DISADVANTAGE BY PAYING APPROPRIATE COMPENSATION WAS ITSELF A DISADVANTAGE FOR THE TRADERS AFFECTED .

IN ITS VIEW THIS LATTER DISADVANTAGE SHOULD BE OFFSET IN THE SAME WAY AS THE SPECIFIC DISADVANTAGE FLOWING FROM THE CHANGE IN THE EXCHANGE RATES .

FURTHERMORE IT IS ALLEGED THAT THIS WAS HOW THE COMMISSION UNDERSTOOD THE SITUATION DURING THE 1976/77 SUGAR YEAR , SINCE COMMISSION REGULATION NO 1579/76 FIXED AN AMOUNT OF COMPENSATION WHICH TOOK ACCOUNT NOT ONLY OF THE CONSEQUENCES OF THE CHANGE IN THE EXCHANGE RATE BUT ALSO OF THOSE CHANGES RESULTING FROM THE ALTERATIONS IN THE INTERVENTION PRICE FOR THE NEW SUGAR YEAR .

13THIS ARGUMENT CANNOT BE ACCEPTED AS THE SYSTEM FOR THE PAYMENT OF COMPENSATION IS NOT BY ITSELF LESS FAVOURABLE TO THE PARTIES CONCERNED THAN THAT OF THE RIGHT TO CANCEL .

ALTHOUGH IN SOME SPECIFIC CASES THE PARTY CONCERNED MAY FIND THAT ONE OF THE TWO SYSTEMS PROVES TO BE MORE FAVOURABLE , IN GENERAL THEY EACH OFFER THE TRADER ADVANTAGES AND DISADVANTAGES WHICH ARE OF EQUAL VALUE , THE ONE BY KEEPING IN FORCE COMMITMENTS WHICH HAVE BEEN ENTERED INTO BUT BY OFFSETTING THE DISADVANTAGES ARISING OUT OF THE CHANGE IN THE EXCHANGE RATE , THE OTHER BY LEAVING THE TRADER TO FACE THE RISKS FLOWING FROM THIS CHANGE BUT GIVING HIM THE RIGHT TO WITHDRAW FROM THE TRANSACTION CONTEMPLATED HAVING REGARD TO THESE RISKS .

IN THIS CONNEXION IT IS IMPORTANT TO STATE THAT ARTICLE 5 OF REGULATION NO 557/76 AND ARTICLE 4 OF REGULATION NO 878/77 ALLOW CANCELLATION ONLY IF THE TRANSACTION IN RESPECT OF WHICH THERE HAS BEEN ADVANCE FIXING RESULTS IN A DISADVANTAGE FOR THE PARTY CONCERNED BY REASON OF THE APPLICATION OF THE NEW REPRESENTATIVE RATES , BUT DO NOT ALLOW CANCELLATION IF THE TRANSACTION HAS BECOME DISADVANTAGEOUS FOR OTHER REASONS , BECAUSE FOR INSTANCE OF AN ALTERATION OF PRICES , ESPECIALLY OF THE INTERVENTION PRICE .

IT IS THEREFORE FITTING THAT ONLY THE DISADVANTAGE RESULTING FROM THE CHANGE IN THE EXCHANGE RATE BE OFFSET AND THAT THE FACT THAT THE COMMISSION IN ITS REGULATION NO 1579/76 FIXED MORE GENEROUS COMPENSATION CANNOT AFFECT THIS INTERPRETATION .

14THE COMPLAINT THAT REGULATIONS NO 653/68 AND NO 1134/68 HAVE BEEN INFRINGED CANNOT BE UPHELD .

15THE APPLICANT ALSO RELIES ON THE SECOND SUBPARAGRAPH OF ARTICLE 4 ( 2 ) OF COUNCIL REGULATION NO 878/77 WHICH PROVIDES THAT THE DECISION TO OFFSET THE DISADVANTAGE MUST BE TAKEN ' ' BEFORE THE DATE OF APPLICATION OF THE NEW RATE ' ' IN ORDER TO SHOW THAT THE REGULATION AT ISSUE , WHICH WAS ADOPTED AFTER THAT DATE , IS ILLEGAL .

16HOWEVER , THE DECISION ' ' TO OFFSET THIS DISADVANTAGE BY AN APPROPRIATE MEASURE ' ' WAS ADOPTED BY REGULATION NO 937/77 AND THE AMENDMENT BY THE REGULATION AT ISSUE DOES NOT RELATE TO THE APPLICATION OF THE SYSTEM OF COMPENSATION BUT MERELY TO THE AMOUNT OF COMPENSATION .

THE REGULATION AT ISSUE APPLIES ONLY TO THOSE QUANTITIES OF WHITE SUGAR FOR WHICH CUSTOMS EXPORT FORMALITIES ARE COMPLETED ON OR AFTER ITS ENTRY INTO FORCE AND DOES NOT THEREFORE CONSTITUTE AN AMENDMENT HAVING RETROACTIVE EFFECT .

17CONSEQUENTLY THIS SUBMISSION CANNOT SUCCEED .

BREACH OF THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION
18THE APPLICANT ALSO CLAIMS THAT THE REGULATION AT ISSUE CONSTITUTES A BREACH OF THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION .

19THE SUBMISSION THAT THERE HAS BEEN A BREACH OF THIS PRINCIPLE IS ADMISSIBLE IN THE CONTEXT OF PROCEEDINGS INSTITUTED UNDER ARTICLE 173 , SINCE THE PRINCIPLE IN QUESTION FORMS PART OF THE COMMUNITY LEGAL ORDER WITH THE RESULT THAT ANY FAILURE TO COMPLY WITH IT IS AN ' ' INFRINGEMENT OF THIS TREATY OR OF ANY RULE OF LAW RELATING TO ITS APPLICATION ' ' WITHIN THE MEANING OF THE ARTICLE QUOTED .

20NEVERTHELESS THE SUBMISSION HAS NOT BEEN SUBSTANTIATED , SINCE THE FACT THAT THE COMMISSION , AS FAR AS PREVIOUS EXPORTS COMPARABLE TO THOSE CONTEMPLATED BY THE APPLICANT ARE CONCERNED , HAD CALCULATED THE COMPENSATION ON BASES WHICH WERE ADMITTEDLY MORE FAVOURABLE BUT WENT BEYOND THE OBJECTIVE OF REGULATIONS NOS 557/76 AND 878/77 CANNOT GIVE THE APPLICANT THE RIGHT TO THE CONTINUANCE OF THESE INCORRECT CALCULATIONS .

ON THE OTHER HAND AS SOON AS THE INACCURACY OF THESE CALCULATIONS WAS DISCOVERED THE COMMISSION WAS UNDER A DUTY TO CORRECT IT IN THE FINANCIAL INTEREST OF THE COMMUNITY AND IN ORDER TO PREVENT PRIVILEGED POSITIONS FROM BECOMING ESTABLISHED .

THE CLAIM FOR COMPENSATION
21THE APPLICANT HAS REQUESTED THE COURT IN THE ALTERNATIVE TO DECLARE THAT THE COMMISSION IS LIABLE FOR THE DAMAGE WHICH THE APPLICANT HAS SUFFERED AS A RESULT OF THE APPLICATION OF REGULATION NO 1583/77 .
22IT IS CLEAR FROM THE FOREGOING THAT IN THIS CASE EVERYTHING WHICH THE COMMISSION DID WAS IN ACCORDANCE WITH THE RULES IN QUESTION AND THAT THE RULES MUST BE REGARDED AS VALID .

CONSEQUENTLY THERE IS NOTHING IN THE COMMISSION ' S ACTIONS WHICH COULD GIVE RISE TO ANY RIGHT TO COMPENSATION .

23THE CLAIM IS THEREFORE UNFOUNDED AND THE APPLICATION MUST BE DISMISSED IN ITS ENTIRETY .

COSTS
24UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

AS THE APPLICANT HAS FAILED IN ITS SUBMISSIONS IT MUST THEREFORE BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS
THE COURT
HEREBY :
1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE APPLICANT TO PAY THE COSTS .