CELEX: 62000TJ0093
Bananas
Thirdcountry imports
Regulation (EC) No 2362/98
Import licences for bananas from ACP countries
Measures under Article 20(d) of Regulation (EEC) No 404/93
Action for annulment
Action for compensation

Legal background
Regulation (EEC) No 404/93
Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organisation of the market in bananas (OJ 1993 L 47,
p. 1), implemented, in Title IV, with effect from 1 July 1993, a common arrangement for trade with third countries in place
of the various national arrangements. A distinction was drawn between
Community bananas harvested in the Community, and
third-country bananas originating from third countries other than the African, Caribbean and Pacific (ACP) countries. The term
traditional ACP bananas referred to the quantities of bananas exported by the ACP countries which did not exceed the quantities laid down in the
Annex to Regulation No 404/93, whilst
non-traditional ACP bananas referred to the quantities of bananas exported by the ACP countries which exceeded the quantities laid down in that annex.
Under the first paragraph of Article 17 of Regulation No 404/93, the importation of bananas into the Community is subject
to the submission of an import licence issued by the Member States at the request of any party concerned, irrespective of
his place of establishment within the Community, without prejudice to the special provisions made for the implementation of
Articles 18 and 19.
The original version of Article 18(1) of Regulation No 404/93 provided for an annual tariff quota of two million tonnes (net
weight) for imports of third-country bananas and non-traditional ACP bananas. Within the framework of the tariff quota, imports
of third-country bananas were subject to a duty of ECU 100 per tonne and imports of non-traditional ACP bananas were subject
to a zero duty. The original version of Article 18(2) of that same regulation provided that imports of non-traditional ACP
bananas and imports of third-country bananas imported apart from the tariff quota were subject to duties of ECU 750 per tonne
and ECU 850 per tonne, respectively.
Article 19(1) of Regulation No 404/93 broke down the tariff quota, opening it as to 66.5% to the category of operators who
had marketed third country and/or non-traditional ACP bananas (Category A); 30% to the category of operators who had marketed
Community and/or traditional ACP bananas (Category B); and 3.5% to the category of operators established in the Community
who had started marketing bananas other than Community and/or traditional ACP bananas from 1992 (Category C).
Article 19(2) of Regulation No 404/93 provides: On the basis of separate calculations for each of the categories of operators [A and B], ... each operator shall obtain import
licences on the basis of the average quantities of bananas that he has sold in the three most recent years for which figures
are available.
Regulation (EEC) No 1442/93
On 10 June 1993, the Commission adopted Commission Regulation (EEC) No 1442/93 of 10 June 1993 laying down detailed rules
for the application of the arrangements for importing bananas into the Community (OJ 1993 L 142, p. 6,
the 1993 arrangement). That arrangement remained in effect until 31 December 1998.
Under the terms of Article 5(1) of Regulation No 1442/93, the competent authorities were to establish each year for each Category
A and Category B operator registered with them the average quantities marketed during the three years prior to the year preceding
that for which the quota was opened, broken down by economic activity in accordance with Article 3 (1) of that same regulation.
That average was termed the
reference quantity.
Article 14(2) of Regulation No 1442/93, as amended by Commission Regulation (EC) No 2444/94 of 10 October 1994 (OJ 1994 L
261, p. 3), provides: Import licence applications shall be lodged with the competent authorities of any Member State during the first seven days
of the last month of the quarter preceding that in respect of which the licences are issued.
Regulation (EC) No 1637/98
Council Regulation (EC) No 1637/98 of 20 July 1998 amending Regulation (EEC) No 404/93 (OJ 1998 L 210, p. 28) introduced,
with effect from 1 January 1999, important amendments to the common organisation of the market in bananas. In particular,
it introduced new provisions replacing Articles 16 to 20 of Title IV of Regulation No 404/93.
Article 18(1) of Regulation No 404/93, as amended by Regulation No 1637/98, provided for the opening of an annual tariff quota
of 2 200 000 tonnes (net weight) for imports of third-country and non-traditional ACP bananas. Within the framework of the
tariff quota, imports of third-country bananas under that tariff quota were subject to duty of ECU 75 per tonne, while imports
of non-traditional ACP bananas were free of duty.
Article 18(2) of the same regulation, as amended by Regulation No 1637/98, provided for an additional annual tariff quota
of 353 000 tonnes (net weight) to be opened each year for imports of third-country and of non-traditional ACP bananas. Within
the framework of the tariff quota, imports of third-country bananas were also subject to duty of ECU 75 per tonne while imports
of non-traditional ACP bananas were free of duty.
Under Article 20(d) of Regulation No 404/93, as amended by Regulation No 1637/98, the Commission was empowered to adopt provisions,
in accordance with the Management Committee for Bananas system provided for in Article 27, for the management of the tariff
quotas referred to in Article 18, which could include
any specific provisions needed to facilitate the switch from the import arrangements applying on and after 1 July 1993 to
the present arrangements of ... Title IV [of Regulation No 404/93].
Regulation (EC) No 2362/98
On 28 October 1998, the Commission adopted Commission Regulation (EC) No 2362/98 laying down detailed rules for the implementation
of Council Regulation (EEC) No 404/93 regarding imports of bananas into the Community (OJ 1998 L 293, p. 32). Under Article
31 of Regulation No 2362/98, Regulation No 1442/93 was repealed as from 1 January 1999. The new provisions concerning the
management of import licences within the framework of the tariff quotas are found in Titles I, II and IV of Regulation No
2362/98 (
the 1999 arrangement).
It is important to note the following differences between the 1993 arrangement and the 1999 arrangement:
─
the 1999 arrangement no longer differentiates according to the functions carried out by the operators;
the 1999 arrangement no longer differentiates according to the functions carried out by the operators;
─
the 1999 arrangement takes account of the quantities of imported bananas;
the 1999 arrangement takes account of the quantities of imported bananas;
─
the import licences under the 1999 arrangement are managed without reference to the origin (ACP or third countries) of the
bananas;
the import licences under the 1999 arrangement are managed without reference to the origin (ACP or third countries) of the
bananas;
─
the tariff quotas and the portion attributed to new operators were increased under the 1999 arrangement.
the tariff quotas and the portion attributed to new operators were increased under the 1999 arrangement.
Article 2 of Regulation No 2362/98 provides
inter alia
that the tariff quotas and the traditional ACP bananas referred to in Article 18(1) and (2) and Article 16, respectively,
of Regulation No 404/93, as amended by Regulation No 1637/98, are opened for:
─
92% to
traditional operators as defined in Article 3;
92% to
traditional operators as defined in Article 3;
─
8% to
newcomers as defined in Article 7.
Article 4(1) of Regulation No 2362/98 states that each traditional operator registered in a Member State is to receive, for
each year and for all the origins listed in Annex I to that regulation, a single reference quantity based solely on the quantities
of bananas actually imported during the reference period. According to Article 4(2) of Regulation 2362/98, for imports carried
out in 1999, the reference period was to be made up of the years 1994, 1995 and 1996.
Article 6(1) of Regulation No 2362/98 provides that
[b]y 30 September at the latest each year, after making the necessary checks and verifications, the competent authorities
shall determine, in accordance with Articles 3, 4 and 5, a single, provisional reference quantity for each traditional operator,
on the basis of the average quantities of bananas actually imported by them from the origins listed in Annex I during the
reference period. The reference quantity is based on a three-year average, even where the operator has not imported bananas for part of the
reference period. According to Article 6(2) of Regulation No 2362/98, the competent authorities are to provide the Commission
each year with a list of traditional operators they have registered and the total provisional reference quantities determined
for the latter.
The rules for issuing import licences are governed by Articles 14 to 22 of Regulation No 2362/98.
Article 14(1) of that regulation provides that
[f]or the first three quarters of the year, an indicative quantity expressed as the same percentage of available quantities
from each of the origins listed in Annex I may be fixed for the purposes of issuing import licences.
Article 15(1) of that regulation provides that
[f]or each quarter of the year, applications for import licences shall be submitted to the competent authorities of the Member
State in which operators are registered during the first seven days of the month preceding the quarter in respect of which
the licences are being issued.
Article 17 provides that where, for a given quarter and for any one or more of the origins listed in Annex I, the quantities
applied for appreciably exceed any indicative quantity fixed under Article 14, or exceed the quantities available, a percentage
reduction to be applied to the amounts requested is to be fixed.
Article 18 of Regulation No 2362/98 reads as follows: 1. Where a percentage reduction has been fixed for one or more given origins under Article 17, operators who have applied
for import licences for the origin(s) concerned may:
(a)
either renounce their use of the licence by informing the relevant issuing authority accordingly within 10 working days of
publication of the Regulation fixing the reduction percentage, whereupon the security lodged against the licence shall be
released immediately; or
(b)
submit one or more fresh licence applications for the origins for which available quantities have been published by the Commission,
up to an amount equal to or smaller than the quantity applied for but not covered by the original licence issued. Such requests
shall be submitted within the time-limit laid down in point (a) and shall be subject to all the conditions governing licence
applications.
2. The Commission shall immediately determine the quantities for which licences can be issued for each of the origins concerned.
Article 19(1) provides
inter alia
that
[t]he competent authorities shall issue import licences for the following quarter not later than the 23rd day of the last
month of each quarter.
Article 20(1) provides: 1. Unused quantities covered by a given licence shall be re-allocated to the same operator ─ whether holder or transferee
─ upon application, for use in a subsequent quarter but still within the year of issue of the original licence. The security
shall be retained in proportion to the quantities not used up.
A certain number of transitional provisions for the year 1999 are reproduced under Title V of Regulation No 2362/98. Under
Article 28(1) of that regulation, applications for registration for 1999 had to be submitted by 13 November 1998 at the latest.
In the case of traditional operators, those applications had to include
inter alia
a figure for the total quantity of bananas actually imported in each of the years of the reference period 1994 to 1996 and
the serial numbers of all the import licences and licence extracts used for those imports, and complete references with documentary
evidence showing that duties had been paid.
Annex I to Regulation No 2362/98 fixes the distribution of the tariff quotas referred to in Article 18(1) and (2) of Regulation
No 404/93 and the traditional ACP quantity (857 700 tonnes).
The Council adopted Council Regulation (EC) No 216/2001 of 29 January 2001 amending Regulation No 404/93 (OJ 2001 L 31, p.
2). Article 1 of Regulation No 216/2001 amended Articles 16 to 20 of Regulation No 404/93.
The rules for applying Title IV of Regulation No 404/93 thus amended were defined by  Commission Regulation (EC) No 896/2001
of 7 May 2001 laying down detailed rules for applying Council Regulation (EEC) No 404/93 as regards the arrangements for importing
bananas into the Community (OJ 2001 L 126, p. 6). They applied as from 1 July 2001, in accordance with Article 32 of Regulation
No 896/2001.
Facts
The applicants are importers of bananas originating in Latin America. They are registered as traditional operators with the
competent national authorities (Italy and, for London Fruit Ltd, United Kingdom) and obtained from those authorities provisional
individual reference quantities for the year 1999. They were thus able to obtain import licences for third-country bananas
for the first three quarters of 1999.
The facts of Case T-93/00 relate to the fourth quarter of 1999. For that quarter, the applicants submitted applications for
import licences for the balance of their provisional individual reference quantity to the competent national authorities.
Their applications were granted up to the limits of the available quantities for imports of third-country bananas, published
in the Annex to Commission Regulation (EC) No 1824/1999 of 20 August 1999 amending Regulation (EC) No 1623/1999 fixing quantities
for imports of bananas into the Community for the fourth quarter of 1999 under the tariff quotas or as part of the quantity
of traditional ACP bananas (OJ 1999 L 221, p. 6).
For the part of the applications which could not be granted, the applicants still had the possibility of applying for import
licences for a quantity of 308 978.252 tonnes of traditional ACP bananas, a quantity fixed by Commission Regulation (EC) No
1998/1999 of 17 September 1999 on the issuing of import licences for bananas under the tariff quotas and the quantity of traditional
ACP bananas for the fourth quarter of 1999 and on the submission of new applications (OJ 1999 L 247, p. 10). They thus applied
for import licences for ACP bananas within the limits of the remaining quantities at their disposal, in accordance with Article
18(1) of Regulation No 2362/98. The import licences for the remaining quantities of their respective reference quantities
were broken down as follows: Alessandrini Srl   KG  2 050Anello Gino di Anello Luigi & C. Snc     KG  1 859Arpigi Spa    KG    757Bestefruit Srl   KG  2 637Co-Frutta SpA   KG  209 392Co-Frutta Soc.coop.arl  KG   30 207Dal Bello SIFE Srl  KG  1 533Frigofrutta Srl   KG  2 990Garletti Snc    KG  4 419London Fruit Ltd   KG  286 004
On 13 October 1999, the competent national authorities issued import licences for ACP bananas for the entire quantity for
which the applicants had applied.
Despite repeated attempts, the applicants did not succeed in obtaining supplies of ACP bananas.
Faced with that situation, on 18 November 1999, the applicants, referring to Article 232 EC, requested the Commission to:
─
take the necessary measures to enable them to use the fourth-quarter licences issued for imports from ACP countries to carry
out imports of bananas from Latin American or other third countries;
take the necessary measures to enable them to use the fourth-quarter licences issued for imports from ACP countries to carry
out imports of bananas from Latin American or other third countries;
─
provide, in any event, for the securities for those licences to be released, since they were not being used and the non-use
was not attributable to their holder.
provide, in any event, for the securities for those licences to be released, since they were not being used and the non-use
was not attributable to their holder.
Not having received a response to that request, the applicants, by fax of 22 December 1999, drew the Commission's attention
to the fact that the licences were going to expire on 7 January 2000 and requested the Commission to make a ruling on their
requests.
By letter No 02418 of 26 January 2000 (
the letter of 26 January 2000), addressed to the applicants' counsel, the Commission replied as follows: In your letter of 22 December 1999, you referred to difficulties encountered by certain operators in using the banana import
licences issued for the fourth quarter of 1999, in particular for the import of bananas originating from ACP countries.First of all, the nature of those problems is essentially commercial and, therefore, may be attributed to the activities of
economic operators. The problem raised concerns the search for commercial partners for the purchase and transport of certain
products and, specifically in the present case, of bananas from ACP countries. Although it is regrettable, the fact that your
clients were unable to conclude contracts for the supply of ACP bananas is part of the commercial risk which is normally assumed
by operators. Lastly, we note that those difficulties concern only certain operators not described in detail, and that intervention on the
part of the Commission would risk favouring some operators to the detriment of others who have assumed the risks associated
with the obligations they have taken on.
The competent national authorities kept the security lodged by the applicants, after taking the view that the grounds relied
on by the applicants to recover that security did not constitute force majeure, the only scenario which would allow for release.
The facts of Case T-46/01 relate to the fourth quarter of 2000. For that quarter, the remainder of the available individual
reference quantity for each of the applicants was as follows: Alessandrini Srl   KG  5 667Anello Gino di Anello Luigi & C. Snc     KG  5 140Arpigi Spa    KG  15 792Bestefruit Srl   KG  7 290Co-Frutta SpA   KG  236 746Co-Frutta Soc.coop.arl  KG   80 301Dal Bello SIFE Srl  KG   4 110Frigofrutta Srl   KG   8 226Garletti Snc    KG   7 329London Fruit Ltd   KG  324 124
Since the licence applications for third-country bananas exceeded the available quantities, Commission Regulation (EC) No
1971/2000 of 18 September 2000 on the issuing of import licences for bananas under the tariff quotas and for traditional ACP
bananas for the fourth quarter of 2000 and on the submission of new applications (OJ 2000 L 235 , p. 10) fixed the quantity
of bananas still available for import for the fourth quarter of 2000. According to the Annex to that regulation, import licences
could still be issued for traditional ACP bananas up to 329 787.675 tonnes.
The applicants did not apply for import licences for those ACP bananas.
On 10 October 2000, the applicants, referring to Article 232 EC, requested the Commission to take measures pursuant to Article
20(d) of Regulation No 404/93 which would enable them to obtain, for the fourth quarter of 2000, import licences for third-country
bananas for the remainder of the individual reference quantities which had been allotted to them. In the alternative, they
requested the Commission to compensate them for lost earnings due to the impossibility of importing and marketing those bananas.
By letter No AGR 030905 of 8 December 2000 (
the letter of 8 December 2000), addressed to the applicants' counsel, the Commission refused to grant those requests in the following terms: In your letter of 10 October 2000, you informed the Commission of difficulties encountered by certain operators in obtaining
bananas in order to make full use of the reference quantities granted to them for 2000, within the framework of the tariff
import quotas arrangement. The difficulties to which you refer are essentially commercial in nature. We regret to inform you that Community law does
not confer any power in these matters on the Commission. You recognise this situation yourself when you state that operators
who do not have regular contact with ACP banana producers encounter difficulties in obtaining the goods in question. You also state that the operators you represent are not able to make full use of all the reference quantities allocated to
them. We must point out to you that, from a legal standpoint, the reference quantities merely open up opportunities for operators
and are determined on the basis of their previous business, pursuant to Community regulations; they confer on the parties
concerned no more than the right to submit applications for import licences with a view to carrying out commercial operations
which they have agreed on with suppliers in producing countries.Lastly, we must add that, on the basis of the information you have supplied to the Commission, it appears that the difficulties
to which you refer are not
transitory in nature in that they may be attributed to the transition from the arrangement which applied prior to 1999 to the one which applied
as from then. Accordingly, the provision of Article 20(d) of Regulation ... No 404/93 does not allow the Commissiony to adopt
the specific measures which you request.
Procedure and forms of order sought
By applications lodged at the Registry of the Court of First Instance on 19 April 2000 and 1 March 2001, the applicants brought
the actions in Case T-93/00 and Case T-46/01, respectively.
Upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure in the two cases.
By order of 15 October 2002 of the President of the Fifth Chamber of the Court of First Instance, after the views of the parties
were heard at the hearing, Cases T-93/00 and T-46/01 were joined for the purposes of the oral procedure and judgment on account
of the connection between them, in accordance with Article 50 of the Rules of Procedure.
The parties presented oral argument and replied to the questions of the Court at the hearing on 24 October 2002.
In Case T-93/00, the applicants claim that the Court should:
─
annul the letter of 26 January 2000;
annul the letter of 26 January 2000;
─
award them compensation for the damage caused by that act;
award them compensation for the damage caused by that act;
─
order the Commission to pay the costs.
order the Commission to pay the costs.
In Case T-46/01, the applicants claim that the Court should:
─
annul the letter of 8 December 2000;
annul the letter of 8 December 2000;
─
award them compensation for the damage caused by that act;
award them compensation for the damage caused by that act;
─
order the Commission to pay the costs.
order the Commission to pay the costs.
In both cases, the Commission contends that the Court should:
─
dismiss the actions for annulment as inadmissible or, in the alternative, as unfounded;
dismiss the actions for annulment as inadmissible or, in the alternative, as unfounded;
─
dismiss the claims for compensation;
dismiss the claims for compensation;
─
order the applicants to pay the costs.
order the applicants to pay the costs.
The actions for annulment
Admissibility
Arguments of the parties
In Case T-93/00, the Commission submits that the letter of 26 January 2000 produces no legal effects as regards the applicants
and thus cannot be the subject of an action for annulment (Case C-395/95 P
Geotronics
v
Commission
[1997] ECR I-2271; and Case T-81/97
Regione Toscana
v
Commission
[1998] ECR II-2889, paragraph 21).
The Commission observes that the letter of 26 January 2000 does not bring about a substantial change in the applicants' legal
position. The letter of 26 January 2000 merely states that the difficulties encountered by the applicants are part of the
commercial risk to which all operators are exposed. The Commission states that, if the letter of 26 January 2000 were to be
interpreted as an implicit rejection of the applicants' requests, it has been held that a negative decision may be the subject
of an action for annulment when the act which the institution has refused to adopt could have been challenged under Article
230 EC (see, for example, Case T-330/94
Salt Union
v
Commission
[1996] ECR II-1475, paragraph 32).
The Commission contends that no other act on its part could have been challenged by the applicants. It argues that, if it
had adopted a general provision allowing all interested parties to carry out new imports from third countries, such an act
of general application would have encompassed the applicants by reason of their objective status as importers, without thereby
conferring on them
locus standi
to take action against that act (Case T-47/95
Terres Rouges and Others
v
Commission
[1997] ECR II-481, paragraph 44 et seq.; Case T-168/95
Eridania and Others
v
Council
[1999] ECR II-2245, paragraphs 39, 43, 46 and 51; Case T-194/95
Area Cova and Others
v
Council
[1999] ECR II-2271, paragraph 36 et seq.; and Case T-11/99
Van Parys and Others
v
Commission
[1999] ECR II-2653, paragraphs 44, 45, 50 and 51).
With respect to the request for release of the security lodged, the Commission contends that the Member States alone are competent
to determine whether there is a case of force majeure and that the national courts seised of a case always have the possibility
of referring questions to the Court of Justice for a preliminary ruling.
The applicants maintain that the letter of 26 January 2000 does produce binding legal effects. That act rejects their request
that the Commission take the necessary measures to enable them to use the 1999 fourth-quarter licences issued for imports
from ACP countries with a view to carrying out imports of bananas from Latin American or other third countries. That refusal
deprived the applicants of the opportunity to use their import licences. The fact that other operators found themselves in
the same situation does not preclude the applicants from being directly and individually concerned by the Commission's refusal
(Joined Cases T-79/96, T-260/97 and T-117/98
Camar and Tico
v
Commission and Council
[2000] ECR II-2193, paragraphs 94 to 97).
The applicants state that they asked the Commission about being able to use the licences issued for imports of bananas from
ACP countries during the fourth quarter of 1999 with a view to carrying out imports of bananas from third countries. At the
hearing, the applicants stated that they were thus seeking to obtain import licences for third-country bananas for up to their
reference quantity or the release of the security lodged, while leaving the Commission the choice of measures to implement
pursuant to Article 20(d) of Regulation No 404/93 to arrive at such a result.
In Case T-46/01, the Commission also contends that the action for annulment is inadmissible because the letter of 8 December
2000 does not produce any legal effects which bring about a change in the applicants' legal position, for the same reasons
as put forward in Case T-93/00.
The applicants submit that their action for annulment is admissible, for the same reasons as put forward regarding admissibility
in Case T-93/00.
Findings of the Court
In order to assess the admissibility of the actions for annulment, it is necessary first to determine whether the letters
of 26 January 2000 and 8 December 2000 are measures adversely affecting the applicants and, next, whether they have standing
to take action against those measures.
According to settled case-law, any measure the legal effects of which are binding on and capable of affecting the interests
of the applicant by bringing about a distinct change in his legal position is an act or a decision which may be the subject
of an action under Article 230 EC for a declaration that it is void (Case 60/81
IBM
v
Commission
[1981] ECR 2639, paragraph 9).
By contrast, the mere fact that a letter is sent by a Community institution in response to a request made by the addressee
is not enough for it to be treated as a decision within the meaning of the fourth paragraph of Article 230 EC, thereby entitling
the addressee to bring an action for its annulment (order in Case C-25/92
Miethke
v
Parliament
[1993] ECR I-473, paragraph 10; see also Case T-83/92
Zunis Holding and Others
v
Commission
[1993] ECR II-1169, paragraph 30; and Case T-277/94
AITEC
v
Commission
[1996] ECR II-351, paragraph 50).
In particular, an act by which the Commission simply interprets a legislative provision cannot be held to be an act having
adverse effects. A written expression of opinion emanating from a Community institution cannot constitute a decision in respect
of which an action for annulment may be brought, since it is not capable of producing any legal effects nor is it intended
to produce such effects (Case 133/79
Sucrimex and Westzucker
v
Commission
[1980] ECR 1299; Case 114/86
United Kingdom
v
Commission
[1988] ECR 5289; and Case 151/88
Italy
v
Commission
[1989] ECR 1255). In such circumstances, it is not the interpretation of the regulation proposed by the Commission which
is capable of producing legal effects but, rather, its application to a given situation (
Regione Toscana
, paragraph 23).
In Case T-93/00, the applicants stated in their request of 18 November 1999 that, faced with the impossibility of obtaining
supplies of ACP bananas in the fourth quarter of 1999, they risked losing permanently their import licences for that period
and being deprived of the corresponding individual reference quantities. Referring to Article 232 EC, they requested the Commission
to take the necessary measures to enable them, first, to use their import licences for imports of third-country bananas in
the fourth quarter of 1999 and, second, to release the security for the import licences for that quarter.
It is therefore necessary to interpret the request of 18 November 1999 as aimed principally at getting the Commission to adopt
measures concerning the applicants pursuant to Article 20(d) of Regulation No 404/93.
The Commission's letter of 26 January 2000 rejected the request concerning the import licences on the grounds that the supply
difficulties encountered by the applicants were essentially commercial in nature and concerned only certain operators, with
the result that intervention by the Commission might favour certain operators to the detriment of others.
By that response, the Commission refused to exercise its power to adopt measures pursuant to Article 20(d) of Regulation No
404/93. The letter of 26 January 2000 definitively determined the Commission's position concerning the adoption of such measures.
It thus produces legal effects which are binding on and capable of affecting the interests of the applicants by bringing about
a distinct change in their legal position. Accordingly, it is an act having adverse effects which may be the subject of an
action for annulment. By contrast, the letter of 26 January 2000 does not rule on the issue of the security. Consequently,
the action for annulment on this point is devoid of purpose.
Since the applicants are directly and individually concerned by the letter of 26 January 2000 of which they are the addressees,
they have the necessary standing to bring an action. It follows that the action for annulment in Case T-93/00 is admissible.
Turning to Case T-46/01, it should be noted that, in their letter of 10 October 2000, the applicants, referring to Article
232 EC, requested the Commission to grant them import licences for third-country bananas and to compensate them for the damage
suffered by them, based
if necessary on Article 20(d) of Regulation No 404/93.
In its letter of 8 December 2000, the Commission refused that request. It stated, first, that it was not competent to resolve
difficulties of a commercial nature; second, that the individual reference quantities did no more than entitle operators to
apply for import licences; and third, that the difficulties referred to by the applicants were not related to the transition
from the 1993 arrangement to the 1999 arrangement, thereby precluding the Commission from applying Article 20(d) of Regulation
No 404/93.
The letter of 8 December 2000 must be interpreted as a refusal to exercise the power to adopt measures pursuant to Article
20(d) of Regulation No 404/93. That letter definitively determined the Commission's position concerning the adoption of such
measures. It thus produces legal effects which are binding on and capable of affecting the interests of the applicants by
bringing about a distinct change in their legal position. Accordingly, it is an act having adverse effects which may be the
subject of an action for annulment.
Since the applicants are directly and individually concerned by the letter of 8 December 2000 of which they are the addressees,
they have the necessary standing to bring an action. It follows that the action for annulment in Case T-46/01 is also admissible.
Substance
In Cases T-93/00 and T-46/01, the applicants are applying for annulment of the letter of 26 January 2000 and the letter of
8 December 2000, respectively, putting forward three pleas relating to the illegality of Regulation No 2362/98. Those pleas
are: infringement of Regulation No 404/93, infringement of the right of property and free enterprise, and infringement of
the principle of non-discrimination.
In addition, in each of the cases, the applicants put forward a claim based on infringement of Article 20(d) of Regulation
No 404/93.
Admissibility of the pleas relating to illegality
─ Arguments of the parties
The Commission submits that the claim for annulment of Regulation No 2362/98 on grounds of illegality is inadmissible. It
states that an action to have an act declared void is available only if the contested individual decision is based on the
rules alleged to be illegal (Case 32/65
Italy
v
Council and Commission
[1966] 389; Joined Cases T-164/96 to T-167/96, T-122/97 and T-130/97
Moccia Irme and Others
v
Commission
[1999] ECR II-1477, paragraph 56).
The Commission submits that the letters of 26 January 2000 and 8 December 2000 are not based on the provisions of Regulation
No 2362/98, challenged by the applicants, nor on the provisions of Regulation No 1637/98, of which they allege infringement.
The Commission maintains essentially that, in its letters, it merely stated that the problems in obtaining supplies of ACP
bananas referred to by the applicants are part of commercial risks and are unrelated to Regulation No 1637/98 and Regulation
No 2362/98. Accordingly, the fixing of the reference period and the merging of tariff quotas has no bearing on the supply
difficulties encountered by the applicants. Any importer of third-country bananas could have encountered similar difficulties,
even under the previous rules.
The applicants maintain that it is obvious that the letters of 26 January 2000 and 8 December 2000 apply Regulation No 2362/98.
In their request to the Commission, the applicants explicitly questioned the legality of Regulation No 2362/98 in so far as
it provided for the merging of third-country and ACP tariff quotas. In stating in its letters of 26 January 2000 and 8 December
2000 that the difficulties encountered by the applicants were purely commercial, the Commission applied an overly strict interpretation
of regulation No 2362/98.
─ Findings of the Court
Article 241 EC gives expression to the general principle conferring on any party to proceedings the right to challenge, for
the purpose of obtaining the annulment of a decision of direct and individual concern to that party, the validity of previous
acts of the institutions which, even if not in the form of a regulation, form the legal basis of the decision which is being
attacked, if that party was not entitled under Article 230 EC to bring a direct action challenging those acts by which it
was thus affected without having been in a position to ask that they be declared void (Case 92/78
Simmenthal
v
Commission
[1979] ECR 777, paragraph 39).
Given that Article 241 EC is not intended to enable a party to contest the applicability of any measure of general application
in support of any action whatsoever, the general measure claimed to be illegal must be applicable, directly or indirectly,
to the issue with which the action is concerned and there must be a direct legal connection between the contested individual
decision and the general measure in question (Case 21/64
Macchiorlati Dalmas e Figli
v
High Authority
[1965] ECR 175, 188;
Italy
v
Council and Commission
, 409; Joined Cases T-6/92 and T-52/92
Reinarz
v
Commission
[1993] ECR II-1047, paragraph 57).
In the present case, the pleas put forward in support of the claim of illegality are essentially seeking a declaration that,
when it adopted Regulation No 2362/98, the Commission exceeded the limits of the powers conferred on it by the Council under
Article 19 of Regulation No 404/93, as amended by Regulation 1637/98, in order to adopt the detailed rules for the latter
regulation. More specifically, the applicants dispute the legality of the choices made by the Commission in Regulation No
2362/98 concerning the determination of the reference period and the method for managing the tariff quotas.
The letters of 26 January 2000 and 8 December 2000 do not have as their legal basis the contested provisions of Regulation
No 2362/98 but, as held above, they must be interpreted as refusals to exercise the prerogatives conferred on the Commission
by Article 20(d) of Regulation No 404/93. In Case T-93/00, this finding is not affected by the applicants' assertion that
the difficulties they encountered in obtaining supplies of ACP bananas in the fourth quarter of 1999 were caused by the adoption
of Regulation No 2362/98. Even if it were possible that such a circumstance might enable a causal link to be established between
the damage alleged by the applicants and Regulation No 2362/98 in the context of an action for compensation, it does not lead
to a finding of a direct legal link between that regulation and the letter of 26 January 2000, a decision based on Article
20(d) of Regulation No 404/93.
Moreover, as pointed out by the Commission, the letter of 26 January 2000 essentially relies on the fact that the damage alleged
by the applicants was caused directly by their difficulty in obtaining supplies of ACP bananas in the fourth quarter of 1999.
Likewise, in Case T-46/01, the letter of 8 December 2000 is based on similar considerations, since the Commission found that
the applicants were faced with difficulties of a commercial nature.
Consequently, since the applicants have not established a direct legal link between the letters of 26 January 2000 and 8 December
2000, on the one hand, and the provisions of Regulation No 2362/98 which they allege are illegal, on the other, the pleas
of illegality must be dismissed as inadmissible in both Case T-93/00 and Case T-46/01.
The plea of infringement of Article 20(d) of Regulation No 404/93
─ Arguments of the parties
The applicants submit that, under Article 20(d) of Regulation No 404/93, the Commission was required to take note of the practical
impossibility of obtaining ACP bananas and to allow them to import third-country bananas up to their individual reference
quantities.
In Case T-93/00, the Commission submits that this plea is inadmissible because the applicants did not expressly request application
of Article 20(d) of Regulation No 404/93 and did not explain how they were penalised by the entry into force of Regulation
No 2362/98.
On the substance, the Commission maintains in both cases that, on the basis of the information it had and in the absence of
more comprehensive information supplied by the applicants, it was certainly not required to adopt specific measures under
Article 20(d) of Regulation No 404/93.
─ Findings of the Court
First, the Court does not accept the Commission's objections to the admissibility of the plea alleging infringement of Article
20(d) of Regulation No 404/93 in Case T-93/00. As has been held earlier, the letter of 26 January 2000 must, in the light
of the applicants' request of 18 November 1999, be interpreted as a refusal by the Commission to exercise the prerogatives
conferred on it by Article 20(d) of Regulation No 404/93.
Second, the Court recalls that Article 20(d) of Regulation No 404/93 allows the Commission to adopt
specific provisions needed to facilitate the transition from the 1993 arrangement to the 1999 arrangement. When assessing whether transitional measures
are necessary under that provision, the Commission has a broad discretion, which is to be exercised in accordance with the
procedure laid down in Article 27 of Regulation No 404/93. Thus, although it is for the Court of First Instance to review
the lawfulness of the Commission's action or failure to act under that provision, the scope of that control is limited in
particular to examining whether there has been a manifest error of assessment (see, regarding measures for the transition
from national arrangements to the common organisation of the banana market provided for in Article 30 of Regulation No 404/93,
Case C-68/95
T. Port
[1996] ECR I-6065, paragraphs 38 and 39).
In Case T-93/00, it is appropriate to examine whether the Commission committed a manifest error of assessment in refusing,
in the letter of 26 January 2000, to adopt necessary specific measures pursuant to Article 20(d) of Regulation No 404/93 to
remedy the difficulties encountered by the applicants due to the change from the 1993 arrangement to the 1999 arrangement.
It should be noted, first, that Regulation No 2362/98, by which the Commission specified the detailed arrangements for the
1999 arrangement contains a Title V, which consists solely of transitional provisions. Thus Articles 28 to 30 of that regulation
lay down several rules applicable for the year 1999 in order to facilitate the transition from the 1993 arrangement to the
1999 arrangement. In that respect, the present case is different from the ones dealing with the transition from the national
arrangement to the common organisation of the banana market resulting from Regulation No 404/93, which contained no detailed
transitional provisions (
T. Port
and the Opinion of Advocate General Elmer in that case, paragraph 26). Notwithstanding the provisions under Title V of Regulation
No 2362/98, the temporary difficulties which can arise during the reform of the common banana market organisation may in principle
be settled by applying the arrangements for hardship cases provided for in Article 20(d) of Regulation No 404/93 (Case T-18/99
Cordis
v
Commission
[2001] ECR II-913, paragraph 78).
In addition, the very purpose of Article 20(d) of Regulation No 404/93 supposes that the difficulties alleged by the operators
concerned are directly linked to the change from the 1993 arrangement to the 1999 arrangement and are not due to a lack of
diligence on the part of those operators.
In the present case, it appears that the difficulties which, on 18 November 1999, led the applicants to request the Commission
to act, are not a direct consequence of the change from the 1993 arrangement to the 1999 arrangement, but rather result from
the applicants' inability to obtain supplies of ACP bananas in the fourth quarter of 1999. It is common ground that, despite
the steps taken by some of the applicants, they were unable to find commercial partners who were willing to deliver ACP bananas
to them.
In those circumstances, the Commission did not commit a manifest error of assessment when it found, in its letter of 26 January
2000, that that situation
concerns the search for commercial partners for the purchase and transport of certain products and, specifically in the present
case, of bananas from ACP countries and
is part of the commercial risk which is normally assumed by operators.
Although the applicants' line of argument could be construed as attributing the impossibility of finding commercial partners
to the entry into force of the 1999 arrangement, the fact remains that the applicants have not demonstrated to the requisite
legal standard that the Commission made a manifest error of assessment in refusing to grant their request for measures under
Article 20(d) of Regulation No 404/93.
Accordingly, the plea alleging infringement of Article 20(d) of Regulation No 404/93 must be dismissed as unfounded. It follows
that all the pleas and arguments put forward in support of the action for annulment of Case T-93/00 must be dismissed.
In Case T-46/01, it is appropriate to examine whether the Commission committed a manifest error of assessment in refusing,
in the letter of 8 December 2000, to adopt necessary specific measures pursuant to Article 20(d) of Regulation No 404/93 to
remedy the difficulties encountered by the applicants due to the change from the 1993 arrangement to the 1999 arrangement.
Unlike the circumstances giving rise to Case T-93/00, after the available quantities of third-country bananas had been exhausted
and Regulation No 1971/2000 adopted, the applicants did not apply for import licences for ACP bananas for the fourth quarter
of 2000, but on 10 October 2000 directly requested the Commission to act under Article 232 EC, so that they would be permitted
by the Commission to proceed with banana imports from third countries up to their reference quantity. It is also established
that the applicants did not seek to foster commercial contacts with suppliers of ACP bananas so as to be able to obtain banana
supplies in the fourth quarter of 2000.
In those circumstances, the Commission was able to find, without exceeding the limits of its discretion, that the difficulties
referred to by the applicants were not attributable to the change from the 1993 arrangement to the 1999 arrangement, but that,
rather, they were essentially commercial in nature, since the applicants had chosen not to act in the fourth quarter of 2000.
Accordingly, in Case T-46/01, the plea alleging infringement of Article 20(d) of Regulation No 404/93 is unfounded. It follows
that all the pleas and arguments put forward in support of the action for annulment in Case T-46/01 must be dismissed.
The claims for compensation
Arguments of the parties
The applicants maintain that, by providing for the combined management of the third-country tariff quotas with the ACP tariff
quota in Regulation No 2362/98 and, in particular, for the merging of the reference quantities, and by omitting to adopt Community
measures for remedying the consequences flowing therefrom, the Commission's conduct was illegal and had detrimental effects.
They submit that the conditions for the Community to incur non-contractual liability are met.
First, the applicants submit that, by adopting Regulation No 2362/98, the Commission infringed Regulation No 404/93 and infringed
the fundamental right of property and free enterprise and the principle of non-discrimination.
Second, the applicants submit that they suffered damage because they were not able to make full use of their reference quantities
and the import licences for the fourth quarters of 1999 and 2000. That damage consists of the lost earnings, which can be
calculated on the basis of the commercial value of the import licences for third-country imports, that is, ITL 300 per kilo.
When that amount is multiplied by the quantity listed in those import licences issued to the applicants but which could not
be used, the damage totals ITL 162 554 400 in Case T-93/00 and, using the same method, ITL 208 429 500 in Case T-46/01.
Third, as regards the causal link, the applicants maintain that, had it not been for the illegal measures taken by the Commission
under Regulation No 2362/98, they would have been able to obtain import licences for third-country bananas.
The Commission denies those allegations.
It states, first, that it cannot be accused of any illegal conduct.
Second, it disputes the existence of the damage alleged. The lost earnings can be established only if the applicants can show
that the quantities of bananas in respect of which they applied for licences would have provided them with a gain equivalent
to the amount of the import licences.
Third, there is no causal link between the difficulties in obtaining supplies of ACP bananas and the changes resulting from
the adoption of Regulation No 2362/98. The applicants could very well have been confronted with the same types of difficulties
under the 1993 arrangement.
Findings of the Court
It is settled case-law that, in order for the Community to incur non-contractual liability, a number of conditions must be
satisfied concerning the illegality of the conduct alleged against the Community institutions, the fact of the damage and
the existence of a causal link between that conduct and the damage complained of (Case C-87/89
Sonito and Others
v
Commission
[1990] ECR I-1981, paragraph 16; Case T-13/96
TEAM
v
Commission
[1998] ECR II-4073, paragraph 68).
Since one of the conditions governing the Community's non-contractual liability is not satisfied, the application must be
dismissed in its entirety without its being necessary to examine the other preconditions for such liability (Case C-146/91
KYDEP
v
Council and Commission
[1994] ECR I-4199, paragraph 81).
In the present case, it is clear that the condition relating to the causal link is not satisfied. In Case T-93/00, the cause
of the damage alleged relates to the fact that the applicants were unable to find suppliers willing to supply them with ACP
bananas in the fourth quarter of 1999. In Case T-46/01, the lost earnings complained of by the applicants is directly attributable
to their lack of diligence. They did not apply for import licences for ACP bananas for the fourth quarter of 2000 in conformity
with Regulation No 1971/2000 once the quantity of third-country bananas was exhausted. In addition, despite the problems encountered
during the fourth quarter of 1999, they did not seek to foster contacts with suppliers of ACP bananas in 2000 so as to be
able to obtain banana supplies in the fourth quarter of that year.
Since one of the conditions for the Community to incur non-contractual liability has not been satisfied, the claims for compensation
must be dismissed in Case T-93/00 and Case T-46/01.
Costs
Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
applied for in the successful party's pleadings. Since the applicants have been unsuccessful in both cases and the Commission
has applied for costs, the applicants must be ordered to pay the costs.
On those grounds,
THE COURT OF FIRST INSTANCE (Fifth Chamber),
hereby:
1.
Dismisses the applications in Joined Cases T-93/00 and T-46/01;
2.
Orders the applicants to pay their own costs and those of the Commission in Joined Cases T-93/00 and T-46/01.
García-Valdecasas
Lindh
Cooke
Delivered in open court in Luxembourg on 10 April 2003.
H. Jung
R. García-Valdecasas
Registrar
President
–
Language of the case: Italian.