N. G. J. Schouten BV v Hoofdproduktschap voor Akkerbouwprodukten (35/78)

B —Observations submitted by the Commission

Regulation No 1356/76 derogates from the normal method of calculating monetary compensatory amounts, in particular with respect to the reference period during which the spot market rates are recorded. The second indent of Article 2 (1) (b) of Regulation No 974/71 specifies neither the periodicity concerned nor the method according to which the rates must be recorded. Therefore there is no derogation from that provision. As for Regulation No 1380/75, it lays down rules for the recording of those rates. Since Regulation No 1356/76 maintains in force the monetary compensatory amounts of the preceding week — which in their turn were calculated on the basis of an earlier reference period — it does constitute a derogation from Regulation No 1380/75. However the Commission must be regarded as being entitled to derogate from Regulation No 1380/75 as regards both substance and form. As to form, since it is empowered to fix the detailed rules for the application of Regulation No 974/71, it is also authorized to depart from such rules fixed by itself earlier and according to the same procedure. As to substance, it has the power and even the duty to derogate from that regulation in order as far as possible to achieve the objectives of Regulation No 974/71, that is to say to ensure that situations of monetary instability in which the real exchange rate differs from the official parity should not result in upsetting the intervention system and should not lead to disturbances in trade. Regulation No 1356/76 should precisely be regarded as a necessary derogation of this kind. Application of the exchange rates recored on the Irish and English foreign exchange markets during the period from 7 to 14 June 1976 would have put the monetary compensatory amounts at a level bearing no relation to the real value of the Irish pound and the pound sterling, and by that very fact would have influenced the level of prices by departing from the level of the intervention prices. Moreover, in the subsequent period — until August 1976 — the spot market rates for the pound consistently maintained a fairly high level, so that the fall which occurred in the week of 2 to 8 June must be considered as an entirely exceptional event.Therefore the Commission considers that there are no grounds for concluding that Regulation No 1356/76 is invalid, either for incompatibility with the measures mentioned or for incompatibility with any other binding provision of Community law.As regards violation of the principle of the protection of legitimate expectations, the Commission considers that this principle can undoubtedly play a pan in an action based on Articles 178 and 215 of the Treaty claiming compensation for damage suffered as a result of an unlawful act by the Community, but that it cannot be taken into consideration where it is a question of establishing whether a particular Community measure is void or invalid. The Commission adopts the point of view expressed on this matter by Mr Advocate General Trabucchi in his opinion in Case 47/75 (Germany v Commission [1976] ECR 569, at p. 589)‘… it is doubtful whether the disappointment of mere expectations is capable, in itself, of resulting in an annulment or in a declaration that a measure is invalid’.The fact that Regulation No 1356/76 deals exclusively with the Irish pound and the pound sterling in no way constitutes an argument which allows it to be inferred that there is a violation of the principle of equality before the law. Regulation No 1356/76 dealt only with those two currencies because they were the only ones subject to speculation. If identical treatment had been applied to currencies other than the Irish pound and the pound sterling, which were in a different objective situation, that would have resulted in discrimination.The Commission in no way acted arbitrarily in adopting Regulation No 1356/76. On the contrary that Community measure bears witness to a scrupulous, circumspect policy on the part of a legislature which reacts attentively to unusual situations and in such cases is capable of temporarily suspending a part of the body of general rules implementing that policy. Therefore the Community legislature reacted adequately and precisely to a special situation.If the Management Committee has not decided on a measure by the required majority of 41 votes, it must be concluded that no opinion has been delivered. Consequently, it cannot be said that the Committee has delivered an opinion adverse to the measure adopted by the Commission, and therefore in such a case there is no obligation to communicate the measure to the Council. Accordingly, since there was no adverse opinion by the Management Committee, the fact that Regulation No 1356/76 was not submitted to the Council cannot provide grounds for concluding that it is invalid.The Commission proposes that the answer to the questions raised by the College van Beroep should be that consideration of them has disclosed no factor of such a kind as to affect the validity of Regulation No 1356/76.Schouten B.V., represented by H. H. Kronenberg, Advocate of the Rotterdam Bar, and the Commission of the European Communities, represented by its Legal Adviser, P. Gilsdorf, acting as Agent, presented oral argument at the hearing on 12 October 1978.The Advocate General delivered his opinion at the hearing on 14 November 1978.