OPINION OF MR ADVOCATE-GENERAL TRABUCCHI

DELIVERED ON 21 MAY 1976 (*1)

Mr President,

Members of the Court,

By interlocutory judgment of 14 May 1975 the Court, after finding that failure to adopt transitional measures in connexion with the abolition of the system of monetary compensatory amounts was capable of rendering the Commission liable, declared that the Commission must compensate the Comptoir national technique agricole for the loss suffered, by reason of Regulation No 189/72 of 26 January 1972, which repealed the said compensatory amounts, in carrying out the export of 8000 metric tons of colza seed to Algeria for which the refunds had been fixed by the certificates of 6 January 1972.

In the absence of an agreement between the parties as regards the fixing of the actual amount of compensation, the Court is now called upon to settle that point as well. The damage to be made good under that judgment is limited to the loss actually incurred through any realization of the exchange risk; the applicant does not seem to have been fully aware of this since the beginning of this second stage of the proceedings.

The applicant does not appear to be taking account of the limits within which the Court's interlocutory judgment recognized the Commission's liability. Because of this, the applicant continues to claim, as damages, a sum equivalent to the compensatory amounts to which it would have been entitled if the regulation abolishing them, No 189/72 of the Commission, had not supervened. If the determination of the damage to be compensated had been so simple and obvious a matter, it would certainly not have been necessary for the Court to deliver an interlocutory judgment which confined its decision to the question of principle concerning the existence of liability and instead postponed until a later date the determination of the damage which in fact occurred.

The trader's legitimate expectation which, in its judgment in this case of 14 May 1975, the Court rebuked the Commission for not having taken sufficiently into account is that relating to protection against exchange risks which, at least in practical terms and in terms of traders' normal expectation, was in fact conferred upon them by the compensatory amounts. It is clear from the Court's judgment that, in so far as it can be established, the damage which is, in the Court's view, to be compensated is limited to the loss suffered as the result of realization of this currency risk. In view of this, if the Algerian purchaser had opted for payment in dollars, consideration would have had to be given to the extent to which the Commission should be ordered to pay the applicant the difference between the amount produced by conversion into French francs of the dollars received in payment and the amount which it would have received instead if payment had been made straight away in French francs, since it is precisely this difference, which is producted by fluctuations of the exchange rate of the dollar compared with its official parity, that the system of compensatory amounts was intended to compensate.

As the Court is aware, the contract of sale of 15 June 1971, on the basis of which the export transactions concerned were carried out, provided for payment in dollars or in Franch francs, at the discretion of the buyer. It is, however, clear from the information supplied by the applicant during the second stage of the proceedings that the Algerian purchaser made all the payments relating to the 8000 metric tons of colza seed concerned in French francs. As far as the amount obtained in payment is concerned, therefore, the exchange risk did not materialize.

It should also be noted that, at the time when the applicant was due to deliver the 8000 tons of colza seed covered by the export refund certificates procured on 6 January 1972, its warehouses in Bordeaux were full and that, consequently, the deliveries presented no problem but, on the other hand, if that quantity had not been sold in Algeria it would have had to be sold elsewhere or at least to be delivered to an intervention agency. The fact that the applicant is a group organization which has storage concerns and oil-seed producers amongst its members explains its anxiety so far as possible to export oil seeds of Community origin. When account is taken of the export refunds which this company received for the Community colza seed concerned, it does not follow that, if it had decided to use non-Community products in fulfilling its obligation to deliver 8000 tons of colza seed to Algeria, it would have made more profit. This consideration, too, leads to the conclusion that there is no justification for the applicant's claim to receive as compensation a sum equivalent to the compensatory amount.

Nevertheless the applicant claims to have had to agree to onerous conditions in order to obtain payment in French francs. In particular, it agreed, in advance, not to claim the interest or penalties for any delay in payment. As, subsequently, the delay actually materialized, the applicant claims in fact to have suffered damage which, in view of the circumstances, came thereby to be connected with the exchange risk which had been created by abolition of the compensatory amounts.

The defendant contests the existence, or at least the evidence, of a causal link between the said waiver on the part of the applicant and payment in Franch francs and, accordingly, between the associated obligation and the abolition of the monetary compensatory amounts.

It is clear from the examination of the applicant that, in exchange for its offer to waive in advance any interest chargeable for the delay which usually affected payments from Algeria, the Algerian party to the contract did not give a specific undertaking to make the payment in French francs but merely expressed every intention of using its best endeavours to do so. The Algerian party's right of option concerning the currency in which payment to be made ceased, therefore, only at the time when the amount due to the applicant was remitted. After all the payments had been concluded the applicant, in an exchange of letters with the Algerian party, agreed to cancel all its debit notes, among them that concerning the interest arising from the delays in payment. There is however, no reference in this exchange of letters to the fact that the waiver concerned the payment in French francs which had already been made. There is, therefore, no evidence capable of establishing with certainty the alleged direct and exclusive link between the action of the Commission and any disadvantage suffered by the applicant as a result of his waiver of the claim for interest on overdue payment.

The applicant undertaking maintains that the very fact that it was invited by the Court to send a representative to explain the real effect of the relationship with the Algerian importer must imply that the Court gave credence in advance to its statements, in particular that concerning the connexion between its waiver of interest on late payment and the choice of the French franc for payments on the part of the Algerian customer. It further invokes the principle, generally recognized in the case of commercial matters, that evidence is subject to no restriction.

But, in seeking information, the Court certainly did not abandon its duty to evaluate, in the light of law and experience, what emerged from the evidence, and I cannot accept that the discretion which the Court is allowed with regard to evidence in commercial matters can override the importance of the normal principle that statements made in support of his own case by only one party in the proceedings, no matter how worthy, are insufficient

It is, of course, reasonable to assume that the applicant waived his own right in anticipation of a quid pro quo and it is also conceivable that the choice of payment in French francs by the Algerian firm was also motivated by expectation of corresponding concession from the other party.

But, in view of the habitual nature of these delays (not, incidentally, because of the conduct of the purchaser but of the Algerian bank through which payments had necessarily to be made), the serious difficulties which the applicant could not have failed, in practice, to experience in enforcing his right to interest on overdue payments, as appeared from the statements made by its technical director during the examination, and, finally, the applicant's own interest in maintaining good relations with an important Algerian customer, the said waiver can be easily explained without need to consider it solely or mainly as a direct quid pro quo for the choice of the French franc for payments received from Algeria.

In its interlocutory judgment, the Court expressly laid down that the protection which the applicant may claim by reason of its legitimate expectation is merely that of not having to suffer loss by reason of the withdrawal of the compensatory amounts. And these losses must be proved on the basis of an unmistakable causal relationship. On the other hand, what actually happens in business is not always capable of being interpreted, by analysing the various elements of self-interest which exercise an influence in terms of current or of anticipated future business, as motives which, in the absence of express declarations or of exact conditions, cannot be separately identified. And this must be even more true in a case, such as the present one, in which an attempt is made to make a stranger to the contract responsible for the consequence of this or that course of conduct within a complicated commercial relationship.

In the present case, however, there can be no question of the applicant's having proved that it suffered the damage attributable to failure to collect interest on overdue payment as a special obligation which was incurred as consideration for payment in French francs rather than in dollars. And this is also confirmed by the fact that there is no evidence that the applicant ever received any appropriate compensation for the previous repeated delays which had occurred which, on its own admission, were an almost routine occurrence and were thenceforward discounted in advance because of the way in which the Algerian bank, which was alone empowered to make payments abroad, always managed its affairs.

For these reasons, my recommendation is that the Court should dismiss the application for damages submitted by the applicant as unfounded.

In view of the fact that the Commission acted in a manner which, as the Court found in its previous judgment in this case, was capable of rendering it liable, I suggest that, notwithstanding rejection of the applicant's present claim, the costs of the proceedings should be equally shared between the parties.

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(*1) Translated from the Italian.