Opinion of the Advocate-General
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My Lords,
In this action three German sugar-refining undertakings, Zuckerfabrik Bedburg AG (" Bedburg "), Lehrter Zucker AG (" Lehrter ") and Lippe-Weser Zucker AG (" Lippe "), claim by way of damages under Article 215 of the EEC Treaty against the European Economic Community, represented by the Council and the Commission, compensation for the losses which they have suffered as a result of Council Regulation No 855/84 of 31 March 1984 on the calculation and the dismantlement of the monetary compensatory amounts applying to certain agricultural products ( Official Journal 1984, L*90, p.*1 ) and Commission Regulation No 2677/84 of 20 September 1984 on transitional measures in readiness for the revaluation of the representative rate for the German mark on 1 January 1985 ( Official Journal 1984, L*253, p.*31 ).
Those regulations are also in issue in Case 278/84 the Federal Republic of Germany v Commission . In my Opinion in that case I have summarized their effect . I merely add here that the aid provided by Regulation No 855/84, as subsequently amended by Decision 84/361 ( Official Journal 1984, L*185, p.*41 ), for German agricultural producers is not available to the present applicants who process into sugar the beet which they buy but who are not "agricultural producers ".
The applicants' case essentially is this . Because of the structure of the common organization of the market in sugar, they have to carry certain stocks of sugar throughout the sugar marketing year ( 1 July to 30 June ). Council Regulation No 855/84 arranged, inter alia, for the dismantling of positive monetary compensatory amounts by an alteration of the representative rates, which took effect from 1 January 1985, i.e . in the middle of the sugar marketing year ( and not on 1 July 1984, the beginning of the sugar marketing year, as originally proposed by the Commission but opposed by the Council ). The change in the representative rate for sugar was from 1 ECU = DM*2.51457 to 1 ECU = DM*2.38516 . The applicants say that they had to pay the producers of sugarbeet for deliveries from the 1984 crop the higher price resulting from the old conversion rate, whereas they received for the sugar which they manufactured as from 1 January 1985 only the lower price resulting from the new conversion rate . The intervention price for white sugar for the 1984/85 marketing year was fixed at 53.47 ECU per 100 kg, which corresponded at the old green rate to DM*134.45 per 100 kg, but at the new green rate applicable from 1 January 1985 corresponded only to DM* 127.53 per 100 kg . Thus, they say, the stock which they were carrying at the time suffered a depreciation of DM*6.92 per 100 kg .
However, the applicants acknowledge that, purportedly to mitigate these effects of the change, the Commission adopted Regulation No 2677/84, which contains two relevant provisions . Article 2 provides : "As regards offers of sugar accepted by the German intervention agency as from the day on which this regulation enters into force (( i.e . 21 September 1984 )), the buying-in prices for white sugar and raw sugar shall be converted into national currency on the basis of the representative rate valid with effect from 1 January 1985 ". The applicants say that the purpose of this measure was to prevent sugar-producing undertakings from selling their 1984 production into intervention at the old, higher price . The second provision is Article 3 ( 1 ), whereby : "As regards the minimum prices for A and B sugarbeet referred to in Article 3 of Regulation ( EEC ) No 1106/84 ( Official Journal 1984, L*113, p.*14 ) to be paid in the Federal Republic of Germany by sugar manufacturers to sugarbeet producers for the entire 1984/85 marketing year, these shall be converted into national currency at the following rate : 1 ECU = DM*2.41751 ". This rate falls midway between the old, higher rate and the new, lower rate, and the applicants say that the purpose of this measure was to prevent the burden of the lower prices as from 1 January 1985 from falling on the sugar-manufacturing undertakings alone . At the old green rate, the basic price for sugarbeet, 40.89 ECU per tonne, worked out at DM*102.82 per tonne, whereas at the transitional green rate laid down in Regulation No 2677/84 it works out at DM*98.85 per tonne . Expressed in terms of sugar equivalent, on the assumption that one tonne of beet gives 130 kg of sugar, the basic price works out at DM*76.03 per 100 kg of sugar under Regulation No 2677/84 as against DM*79.08 per 100 kg of sugar under the pre-existing rules .
In the original application the applicants calculated their loss by multiplying the total stocks carried by them at 31 December 1984 by what they claim to be the reduction in price expressed in DM per tonne ( DM*6.92 per 100 kg ) and then offsetting the saving on the price of sugarbeet resulting from Article 3 ( 1 ) of Regulation No 2677/84 . It was said that the exact figures could not be given until after 1 January 1985, but on this basis they estimated their losses at DM*1* 134*220 for Bedburg, DM*3*970*412 for Lehrter and DM*1*587*946 for Lippe .
The applicants allege that Regulation No 855/84 is in breach of : ( a ) the provisions on prices contained in the basic regulation governing the common organization of the market in sugar, Regulation No 1785/81 ( Official Journal 1981, L*177, p.*4 ), inasmuch as Regulation No 855/84 fixes a date in the middle of the sugar marketing year as the date on which the new representative conversion rate for the German mark takes effect, without taking into account that this leads to a fall in prices which diminishes the profit margin of sugar manufacturers by 13.64%; ( b ) the fundamental right to property, inasmuch as the regulation interferes with the very essence of the business established and carried on by the applicants and diminishes the value of the sugar stocks held on 1 January 1985 by 5.15%; as a result of the obligation to purchase quantities of sugarbeet at prices fixed in advance as from the autumn of 1984, the applicants could not avoid the losses resulting from the fall in prices; ( c ) the principle of non-discrimination laid down in the second subparagraph of Article 40 ( 3 ) of the EEC Treaty; ( d ) the general principle of equality inasmuch as it imposes an unnecessary burden on German sugar refineries in order to achieve the goal of adjusting the conversion rate for agricultural products; and ( e ) the principle of proportionality, inasmuch as the fall in the price of sugar could have been avoided if the new conversion rate had taken effect at the beginning of a marketing year . In the applicants' submission, by adopting the rules in question the Council has manifestly and substantially exceeded its powers, inasmuch as the rules infringed and the principles contravened by the Council are particularly important, the number of undertakings concerned is small and those undertakings have been seriously affected .
In their reply, the applicants admit that Commission Regulation No 2677/84 reduces the loss of at least DM*6.92 per 100 kg in the price of sugar caused by Regulation No 855/84 to DM*2.85 per 100 kg provided that Article 3 of that regulation, which they do not challenge, is valid . They do, however, say that Article 2 of Commission Regulation No 2677/84, which they allege prevented them from selling into intervention at the higher price, is a cause of loss jointly with Regulation No 855/84 . Taking the transitional arrangements into account, Bedburg claims to have lost DM*1*785*000, Lippe DM*2*330*000 and Lehrter DM*5*178*000 .
In answer to questions by the Court, the applicants recalculated their losses, taking into account the transitional measures laid down by Regulation No 2667/84, as being DM*1*423*406 for Bedburg, DM*1*919*928 for Lippe and DM*5*059*367 for Lehrter . At the Court' s request, they also estimated what the losses would have been if the alteration of the green rate of the German mark had taken place on 1 July 1984 ( respectively DM*2*993*124, DM*3*680*428 and DM*8*102*505 ) and on 1 July 1985 ( respectively DM*808*566, DM*1*098*022 and DM*892*531 ).
The Council and the Commission challenge all the grounds relied on . In addition they contend that the applicants have not suffered damage as alleged or as a result of the two regulations . The Commission in its rejoinder argues that only Bedburg suffered a loss as a result of the new arrangements ( of DM*179*552 ) whereas Lippe and Lehrter were better off to the extent respectively of DM*567*168 and DM*1*646*111 . Bedburg' s loss is due to the fact that it sold less sugar than expected at the end of 1984 and is in any event well within normal commercial fluctuations .
As a preliminary matter, however, two pleas of inadmissibility are raised against the present application . First, it is said that it is inadmissible because the applicants should first have exhausted their remedies before the national courts . I do not accept that submission, principally because none of the sugar at issue in the present case was sold into intervention, and thus there does not appear to be any substantial basis on which the applicants could bring an action against the national intervention agency before the national courts . The damage is alleged to arise from a Commission and a Council regulation without the intermediary of any national agency, and it is therefore appropriate for that claim to be able to be brought before this Court by way of an action for damages, which is an independent remedy within the Community legal system : Case 59/83 Biovilac v EEC (( 1984 )) ECR 4057 at p.*4074 ( paragraphs 6 and 7 ).
The other objection to admissibility is that the application is made in respect of future damage which has not yet been caused and the likelihood of which is not sufficiently established . Although on the basis of Regulation No 855/84 it may have looked as if the introduction of a new representative rate for the German mark in the middle of the sugar marketing year would cause the applicants losses, the effect of the transitional measures in Commission Regulation No 2677/84 was still uncertain when the application was lodged . Moreover, the estimated losses were based on the intervention price, whereas none of the sugar at issue in the case was sold or was likely to be sold into intervention . The Commission has stated without being contradicted that from 1976/77 no sugar had been sold into intervention in the Federal Republic of Germany except for a quantity of 43*000 tonnes in September 1984 and a further quantity of 40*000 tonnes in December 1984, both apparently for speculative reasons and not representing normal market trends . Therefore it was not a reasonable assumption to base an estimate of losses directly on the intervention price .
In Joined Cases 56-60/74 Kampffmeyer v Commission and Council (( 1976 )) ECR 711, confirmed in subsequent cases, the Court held that an action may be brought under Article 215 with respect to imminent damage foreseeable with sufficient certainty even if that damage cannot yet be precisely assessed . As already indicated, the applicants have put in three different sets of figures for their losses . They explain this by saying that when they lodged the application they were advancing notional prices, in the reply they used the provisional figures for the first half of the year and in answer to the questions of the Court they had the final figures . In view of the fact that the question whether any actionable damage has been suffered is a major issue in the case it seems to me preferable to consider this objection to admissibility with that question .
The non-contractual liability of the Community depends on the fulfilment of three conditions as regards ( 1 ) the unlawfulness of the act alleged against the institutions, ( 2 ) the fact of damage and ( 3 ) the existence of a direct link in the chain of causation between the wrongful act and the damage complained of : inter alia Case 49/79 Pool v Council (( 1980 )) ECR 569 at p.*580 . Where the act complained of is of a legislative nature and constitutes a measure taken in the sphere of economic policy, a finding that the measure is unlawful is not sufficient in itself to give rise to liability on the part of the Community . When such a measure implies choices of economic policy it is further necessary that it be vitiated by a sufficiently serious breach of a superior rule of law for the protection of the individual : inter alia Case 238/78 Ireks-Arkady v Council and Commission (( 1979 )) ECR 2955 at p.*2972 and Joined Cases 197-200, 243, 245 and 247/80 Ludwigshafener Walzmuehle v Council and Commission (( 1981 )) ECR 3211 at p.*3246 . In the application of the economic policy of the Community ( as in the present case ) it follows that individuals may have to accept, within reasonable limits, economic loss or prejudice as a result of a legislative measure without being able to obtain compensation from public funds even if that measure has been declared null and void : Joined Cases 83 and 94/76, 4, 15 and 40/77 Bayerischer HNL v Council and Commission (( 1978 )) ECR 1209 at p.*1224 .
In Case 97/76 Merkur v Commission (( 1977 )) ECR 1063 at p.*1078, the Court accepted that if a regulation is made under delegated powers "in the area of economic policy in the higher interest of the proper functioning of such market organizations" then "in those circumstances, although the possibility of protecting the legitimate interests of the trader cannot be excluded, nevertheless the Community could only be rendered liable for the damage suffered by such traders as a result of the adoption of legislative measures governing (( that )) system if in the absence of any overriding public interest the Commission were to abolish or modify the compensatory amounts applicable in a specific sector with immediate effect and without warning and in the absence of any appropriate transitional measures and if such abolition or modification was not foreseeable by a prudent trader ".
In the instant case the change in the system of monetary compensatory amounts (" MCAs ") was not made with immediate effect or without warning : Regulation No 855/84 was adopted on 31 March 1984 whereas the revaluation of the German mark for which it provided did not come into effect until 1 January 1985 . The change was adopted in the higher interest of the proper functioning of the market organizations and in particular, as stated in the eighth recital to the regulation, in order to bring the representative rates "closer to the level of the common prices", i.e . back into contact with economic reality . The aim was that of putting an end to arrangements which allowed Member States with strong currencies to enjoy the advantages of a strong currency whilst at the same time being insulated from competition from cheaper exports from Member States with weaker currencies, which seems to me clearly to fall within the area of economic policy which the Community can adopt or modify . It seems to me that producers, processors and traders in this sector may only have a claim in damages if they can show that no appropriate transitional measures were taken, i.e . if no or no adequate measures were taken to alleviate a change so sudden and drastic as to upset normal trading patterns beyond the risks which they as individual traders could reasonably be expected to bear .
On this point, Article 7 of Council Regulation No 855/84 empowered the Commission to adopt transitional measures, and the Commission adopted transitional measures pursuant thereto in its Regulation No 2677/84 .
The relevant transitional measure is that laid down in Article 3 ( 1 ) of Commission Regulation No 2677/84 quoted earlier in this Opinion and explained in the fourth and fifth recitals to that regulation . Those two recitals are in the following terms : "Whereas, under the terms of Article 6 of Council Regulation 1785/81 .... sugar manufacturers are obliged to pay beet producers the minimum prices for A and B sugarbeet; whereas, owing to the modification of the representative rate for the German mark on 1 January 1985, these minimum prices expressed in national currency would, in the ordinary course of events, have to change in the Federal Republic of Germany on that date; whereas, however, the sugarbeet harvesting and processing season begins in the said Member State in early October and continues until the end of December while the sugar obtained is marketed continuously until the next harvest; whereas, in order to avoid obliging the sugar manufacturers to bear the entire burden resulting from a fall in prices expressed in national currency as from 1 January 1985, the conversion rate used in the calculation of the minimum prices should be adapted for the entire marketing year; whereas, in order to ensure fair treatment for sugar manufacturers and sugarbeet producers, an average conversion rate should be used for these minimum prices, which should be obtained by weighting, on the one hand, the old representative rate for a period of three months, during which, with the exception of buying-in operations, the mechanisms of the common organization of the market would remain unchanged and, on the other, the new representative rate for a period of nine months" ( emphasis added ).
Thus the transitional measures were directed at the very mischief complained of in these proceedings . The words in italics make it clear that the aim of the transitional measures is to avoid making the sugar manufacturers bear the entire burden resulting from the revaluation of the green German mark in the middle of the marketing year . Thus the Commission directed itself properly to alleviate the mischief . The weighting of the average conversion rate in the ratio of 3:9 largely shifts the burden on to sugarbeet producers . The applicants do not complain of that since it is beneficial to them; nor could the sugarbeet producers since they were compensated, indeed, in my view, overcompensated ( for the reasons given in my Opinion in Case 253/84 GAEC ); and the fact that the provisions were retroactive has been shown to be justified consistent with the case-law of the Court .
Article 3 ( 1 ) of Regulation No 2677/84 is in my opinion a proper and valid transitional measure, and in particular is not vitiated either by excess of power or by retroactivity .
The applicants' complaint is that Article 2, whereby the Commission brought forward the application of the revalued green rate for the German mark to 21 September 1984 for intervention purchases of sugar in the Federal Republic of Germany prevented them from selling sugar into intervention . In relation to that it seems clear that none of the sugar was in fact sold into intervention so that no losses were realized as a result of that process and therefore none can be claimed . All the sugar sold by the applicants between 21 September 1984 and 31 December 1984 was sold at market prices higher than the intervention price in German marks calculated at the old, higher conversion rate . Therefore that submission, in my view, fails . In any event it has not, in my view, been shown that Article 2 was itself invalid for the reasons advocated by the applicants .
I turn to the question of damage . The application of Article 3 ( 1 ) meant that throughout the 1984/85 marketing year the applicants could buy their sugarbeet at German mark prices calculated at an exchange rate of 1 ECU = DM*2.41751, resulting in lower prices than the old rate of 1 ECU = DM*2.51457, which would otherwise have been in force during the harvesting months of October to December 1984 . On the other hand, during the months of October to December 1984 the market price for sugar in the Federal Republic of Germany held up at high levels corresponding to the old green rate . The market price figures submitted both by the applicants and by the German Government show that, even though they declined very slightly in the last three months of 1984, market prices for sugar remained at a level above the intervention price in German marks calculated at the old green rate during the months up to 1 January 1985 . The Commission contends that the conversion rate laid down in Article 3 ( 1 ) of Regulation No 2677/84 was based on an assumption that the old green rate would cover sales over a period of three months and the new green rate would cover sales over a period of nine months . In fact the Commission states that the applicants - at least Lippe and Lehrter - sold not 25% but some 40% of their sugar resulting from the 1984/85 harvest at prices corresponding to the old, higher green rate . In other words, they more than mitigated the damage resulting for them from the revaluation of the green German mark on 1 January 1985 .
In this connection the Commission has submitted a calculation, which it explained in answer to the Court' s question, showing that in the light of actual sales at market prices, the applicants made a gain over their processing margin of DM*74*448 for Bedburg, DM*894*605 for Lippe and DM*2*200*091 for Lehrter . As I understand it, this calculation does not purport to show actual profit figures over the year but the amount by which the applicants' gains as a result of the transitional measures exceeded the return which was the most which they could legitimately expect the Community to guarantee them, namely their "processing margin ".
The Council also contends that considerable quantities of the sugar processed by the applicants from beet purchased from the 1984/85 harvest were sold on the German market prior to 1 January 1985 at prices corresponding to the old green rate and that those sales represent a gain for the applicants . The Council has submitted calculations purporting to show the amount of the gain, but those calculations are based on the assumption that the applicants admit that the revaluation of the green German mark enacted by Regulation No 855/84 as from 1 January 1985 would have been lawful had it been applied with effect from 1 July 1984 . Although at one stage they seemed to be saying that, I understood their counsel at the end of the hearing to resile from that position . In any event the rules of the common organization of the market in sugar require certain stocks to be carried by sugar refiners from the end of one marketing year to the beginning of the next, so that even in the case of a change in the representative rate at the end of a marketing year certain stocks bought in at old prices would be affected, and the problem of their loss of value could still arise . Even, however, if the Council' s actual figures are not accepted its argument seems sound in so far as the applicants overall sold more than 25% of their production from the 1984/85 beet harvest before 1 January 1985 .
The applicants' assessment of the effect of the transitional measures is embodied in their overall evaluation of the losses which they claim to have suffered . Their final calculation of these alleged losses is contained in Annex 4 ( b ) to their answers to the questions put by the Court, and is as follows :
These calculations in my opinion contain several defects . I consider that the principal defect is in the method of calculation itself . In the calculations the applicants work out a sum representing the value of their entire 1984/85 production ( plus the stock carried forward at the beginning of that marketing year from the previous one ) at the price which, they say, it would have fetched at prices prevailing between July 1984 and 20 September 1984, and they deduct from that sum their actual sales from October 1984 to September 1985 ( plus an estimate of the value of their remaining stock at September 1985 ). The difference, they say, represents their loss before allowing for the effect of Article 3 ( 1 ) of Commission Regulation No 2677/84 . That approach, in my view, is not right . It is not open to the applicants to bring into account their entire 1984/85 production . According to the application, they are claiming for loss in value of the stock disposed of after 31 December 1984 . To claim for loss of quantities disposed of before that date is to widen the terms of the application, contrary to Article 42 ( 2 ) of the Rules of Procedure . Furthermore, the calculation is based on a wrong hypothesis in that the applicants cannot claim that the market price for sugar should remain at exactly the July to September 1984 level throughout the rest of the 1984/85 marketing year; normal market fluctuations must be accepted . That applies in particular to the modest fall in prices in October to December 1984, which was of the order of 1*DM, well within the 2*DM range of fluctuation which the applicants themselves accept as normal . The applicants are therefore not entitled to base their calculation on the assumption that for their entire production of sugar from the 1984/85 harvest they would, in the absence of the contested measures, have obtained the market price which they obtained from July to September 1984 .
Furthermore, the applicants are not in my opinion entitled to bring into account stocks brought forward from the 1983/84 marketing year . The beet purchased in that marketing year was purchased at prices fixed under earlier regulations which are not impugned in the present case . Neither are they entitled, in my view, to bring into account sales of sugar after the end of the 1984/85 marketing year, because those sales were made at market prices which correspond not to the intervention price fixed in the impugned legislation but to that fixed in later regulations which are also not at issue in the present proceedings . The same applies to their estimate of the value of their stock held at September 1985 .
Other defects in the calculations are alleged . The Commission contends that it is not proper to work out the prices on a quarterly basis as the applicants do but only on a monthly basis . I consider that there is force in that argument . The Commission has also questioned the deduction of advance sales in the October to December 1984 period ( line 4 ), but in my view the Court has not had sufficient argument to be able to decide on that matter .
The price figures given in lines 4, 6, 7, 8, 9 and 11 for the sale of sugar are, it would seem, calculated by deducting from the ex-factory price an amount for sugar tax, the cost of bags and marketing costs . The Commission does not contest the first two deductions but considers that the deduction for marketing costs ( DM* 1.20 ) is unjustified and unusual . Comparing the adjusted ex-factory prices given in Annex 1 to the reply with the market prices given by the German Government in answer to the question by the Court, it can be seen that the applicants' sales prices are consistently below the German Government' s market prices by approximately the amount of DM* 1.20 which would correspond to the "marketing costs ". Although it is not clear what exactly the "marketing costs" consist of here, it seems probable that they represent part of the sugar manufacturers' profit margin which it is not legitimate to deduct from the ex-factory price for the purpose of the calculation of loss in the present context . If that is right, it deprives the applicants' calculation of much of its value, because an amount of DM*1.20 may be sufficient to make a difference between a loss and a profit in the present context .
The last operation in the applicants' calculation is to deduct from the alleged gross loss the saving resulting from the reduction in the beet price by virtue of Article 3 ( 1 ) of Commission Regulation No 2677/84 ( line 13 ). That saving is calculated by multiplying the production figure by a rate of DM*3.06 per 100 kg . That rate, however, is merely notional . It appears from page 18 of the reply that it is derived from the basic price for beet ( 40.89 ECU per tonne under Council Regulation No 1105/84; Official Journal 1984, L*113, p.*12 ) whereas, as has been seen, Article 3 ( 1 ) of Regulation No 2677/84 refers to the minimum prices for A and B sugarbeet which are different prices . Furthermore, it is based on the yield figure of 130 kg of white sugar per tonne of beet which is only an assumption used in calculating the sugar prices for the year, as is apparent from the fourth recital to Regulation No 1105/84 . The actual yield in the Federal Republic of Germany in the 1984/85 marketing year has been estimated by the Council at 142 kg of sugar per tonne of beet . For these reasons I consider that the figures deducted at line 13 of the calculation do not represent the real effect of the transitional measures laid down in Article 3 ( 1 ) of Regulation No 2677/84 .
This part of the calculation ( which reflects the applicants' pleadings ) fails to demonstrate the inadequacy of the transitional measures provided for by the Council and adopted by the Commission . Since ( in view of the Court' s case-law on non-contractual liability, in particular Merkur ) the only basis which might have been available to the applicants for their damages claim was failure to adopt adequate transitional measures, I consider that their claim could be dismissed on that ground alone .
Whether the action was inadmissible must be decided, as I see it, principally on the way the case was initially pleaded . The claim for damages was based on the intervention price which seems to me to have been inappropriate since no sugar had been sold into intervention for a long period; moreover the effect of the transitional measures was not known . On any view it seems to me that the claim was premature . No actual damage had been caused and it cannot be said with confidence that the likelihood of future damage was made out . On the other hand, the claim, until investigated, superficially looked a valid one and it was only on a fuller investigation that it appears to have been unfounded . This is a borderline case on admissibility and, though not without hesitation, I would give the applicants the benefit of the doubt and not declare the case inadmissible .
As to the substance, I do not consider that the calculation of damage set out in answer to the Court' s questions - and a fortiori the other two ways of calculating the damage - should be accepted . In my opinion, the applicants have not established that they suffered damage and, on any view, have not substantiated the figures they put forward . I would dismiss the case on this basis . Nor have they established a causal nexus between such damage as they allege and the matters of which they complain .
In the absence of damage, it is open to the Court not to consider the alleged unlawfulness of the legislation impugned . It may dismiss the action without more, as it did for example in Pool . In any event, I am of the view that the considerations to which I have referred concerning the basis of Community liability dispose of the several heads of unlawfulness alleged by the applicants against Council Regulation No 855/84 . I do not consider that it has been shown that Regulation No 855/84 is in breach of Regulation No 1785/81; or that it violates any fundamental right to property recognized by Community law, or Article 40 ( 3 ) of the EEC Treaty . The arguments as to breach of the principles of equality and proportionality are not made out . What was done was in my view within the margin of appreciation available to the Council . Nor do I consider that Article 2 of Commission Regulation No 2677/84 has been shown to be unlawful .
Accordingly, I am of the opinion that this application should be dismissed as unfounded and the applicants should be ordered to pay the costs .
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