CELEX: 62000CJ0312
Appeal
Common organisation of the markets
Bananas
Request for additional import licences
Adjustment of tariff quota where necessary
Non-contractual liability of the Community
Action for annulment
Admissibility

By application lodged at the Court Registry on 17 August 2000, the Commission of the European Communities brought an appeal
under Article 49 of the EC Statute of the Court of Justice against the judgment of the Court of First Instance of 8 June 2000
in Joined Cases T-79/96, T-260/97 and T-117/98
Camar and Tico
v
Commission and Council
[2000] ECR II-2193 (hereinafter
the contested judgment), seeking to have that judgment set aside.
Legal framework
In the contested judgment, the Court of First Instance set out the legal framework as follows:
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) replaced the various previous national arrangements with a common trading system with third countries.  In the version
in force at the material time, the regulation provided for the opening of an annual tariff quota for banana imports from third
countries and from the African, Caribbean and Pacific (ACP) countries.  Article 15, which became Article 15a when the regulation
was amended by Council Regulation (EC) No 3290/94 of 22 December 1994 on the adjustments and transitional arrangements required
in the agriculture sector in order to implement the agreements concluded during the Uruguay Round of multilateral trade negotiations
(OJ 1994 L 349, p. 105), established a distinction between
traditional and
non-traditional bananas depending on whether they formed part of the quantities, set out in the Annex to Regulation No 404/93, traditionally
exported by the ACP States to the Community.  For Somalia, the
traditional quantity was 60 000 tonnes.
Article 18(1) of Regulation No 404/93 (as amended by Regulation No 3290/94) provided that a tariff quota of 2.1 million tonnes
(net weight) would be opened for 1994 and 2.2 million tonnes (net weight) for each subsequent year 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 levy of ECU 75 per tonne and imports of non-traditional ACP bananas to a zero duty.  Moreover, the second indent
of Article 18(2) provided that imports outside the tariff quota, whether of non-traditional ACP bananas or of third country
bananas, were subject to a levy calculated on the basis of the Common Customs Tariff.
Article 19(1) of Regulation No 404/93 divided the tariff quota thus opened, allocating 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).
According to the second subparagraph of Article 19(2) of Regulation No 404/93, for the second half of 1993 each operator was
to be issued licences on the basis of half of the annual average quantity marketed between 1989 and 1991.
Article 19(4) of Regulation No 404/93 provided that if the tariff quota was increased the additional available quantity would
be allocated to importers in the categories referred to in Article 19(1).
Under Article 16(1) and (3) of Regulation No 404/93 a forecast supply balance was to be prepared each year of production and
consumption in the Community and of imports and exports.  Where necessary, in particular to take account of the effects of
exceptional circumstances affecting production or import conditions, the balance could be adjusted during the marketing year.
In such a case, the tariff quota provided for in Article 18 was to be adjusted in accordance with the procedure laid down
in Article 27.
The fourth subparagraph of Article 18(1) of Regulation No 404/93 provided for a possible increase in the volume of the annual
quota on the basis of the supply balance referred to in Article 16, and it referred to Article 27 of the regulation for the
procedure governing any such increase.
Article 20 of the regulation gave the Commission the power to adopt and adjust the forecast supply balance referred to in
Article 16 and to adopt detailed rules for the trading system with third countries, which might cover in particular additional
measures concerning the issue of licences, their term of validity and the conditions governing transferability.
Article 30 of Regulation No 404/93 provided that: If specific measures are required after July 1993 to assist the transition from arrangements existing before the entry into
force of this Regulation to those laid down by this Regulation, and in particular to overcome difficulties of a sensitive
nature, the Commission, acting in accordance with the procedure laid down in Article 27, shall take any transitional measures
it judges necessary.
Article 27 of the same regulation, which is referred to in Articles 16, 18 and 30 in particular, authorised the Commission
to adopt measures for the implementation of the regulation in accordance with the
management committee procedure.
At the material time, the detailed rules governing the system for importing bananas into the Community were laid down in Commission
Regulation (EEC) No 1442/93 of 10 June 1993 (OJ 1993 L 142, p. 6).  Articles 4 and 5 of that regulation provided that the
division of the tariff quota between category A operators (66.5%) was to be based on the quantity of third country or non-traditional
ACP bananas marketed during the three years prior to the year preceding the year for which the tariff quota was opened. The
division of the quota between category B operators (30%) was to be based on the quantities of Community or traditional ACP
bananas marketed during a reference period calculated in the same way as for category A.
In accordance with the provisions of the second subparagraph of Article 19(2) of Regulation No 404/93 and Articles 4 and 5
of Regulation No 1442/93, the reference period was moved forward annually by one year. Therefore, if the reference period
for 1993 imports covered the years 1989, 1990 and 1991, then for 1997 imports it covered the years 1993, 1994 and 1995.
...
Between 1994 and 1996, following tropical storms Debbie, Iris, Luis and Marilyn which had damaged the banana plantations in
Martinique, Guadeloupe, St Vincent and the Grenadines, St Lucia and Dominica, the Commission adopted a number of regulations
(Commission Regulations (EC) Nos 2791/94 of 16 November 1994, 510/95 of 7 March 1995, and 1163/95 of 23 May 1995 on the exceptional
allocation of a quantity additional to the tariff quota for imports of bananas in 1994, the first quarter of 1995 and the
second quarter of 1995 respectively, as a result of tropical storm Debbie (OJ 1994 L 296, p. 33; OJ 1995 L 51, p. 8; and OJ
1995 L 117, p. 12); Commission Regulations (EC) Nos 2358/95 of 6 October 1995, 127/96 of 25 January 1996 and 822/96 of 3 May
1996 on the exceptional allocation of a quantity additional to the tariff quota for imports of bananas for the fourth quarter
of 1995, the first quarter of 1996 and the second quarter of 1996 respectively, as a result of tropical storms Iris, Luis
and Marilyn (OJ 1995 L 241, p. 5; OJ 1996 L 20, p. 17; and OJ 1996 L 111, p. 7)).  The regulations increased the tariff quota
and introduced specific rules for the distribution of the additional quantity among operators including or directly representing
the banana producers affected by the storm damage.  Those distribution rules derogated from the rules set out in Article 19(4)
of Regulation No 404/93.
The Commission adopted the above regulations on the basis of Articles 16(3), 20 and 30 of Regulation No 404/93.
The reasons given for adopting the regulations were that the tropical storms had caused enormous damage to the banana plantations
in the Community regions of Martinique and Guadeloupe and in the ACP States of Saint Vincent and the Grenadines, St Lucia
and Dominica, that the impact of those exceptional circumstances on production in the regions hit would continue to be felt
for several months and considerably affect imports and supplies to the Community market, and that there was a risk that this
would result in a steep increase in market prices in some regions of the Community.
As to the system for increasing the tariff quota provided for in Article 16(3) of Regulation No 404/93, the Commission stated
in the fourth recital to the regulations: Whereas the adaptation of the tariff quota must permit adequate supplies to the Community market ... and provide compensation
to operators who include or directly represent banana producers who suffered damage and who, in addition, in the absence of
appropriate measures, risk losing their traditional outlets on the Community market on a long-term basis.
In the fifth recital the Commission stated: ... Whereas the measures to be taken should have a specific transitional nature, within the meaning of Article 30 of Regulation
... No 404/93; whereas, prior to the entry into force of the new common market organisation on 1 July 1993, existing national
market organisations, in order to cope with urgent cases or exceptional circumstances [such as the tropical storms referred
to above], included provisions ensuring supplies to the market from other suppliers while safeguarding the interests of operators
who are victims of such exceptional events.
The facts
As regards the facts, the Court of First Instance made the following findings in the contested judgment:
The applicant, Camar Srl, was set up in 1983 by the Italian investment group De Nadai in order to import Somalian bananas
into Italy.  Until 1994 it was the sole importer and until 1997 the main importer of that type of banana.
Between 1984 and 1990 banana production reached its peak in Somalia, attaining an annual production of 90 000 to 100 000 tonnes.
Part of that production was imported into Europe (51 921 tonnes in 1988, 59 388 tonnes in 1989 and 57 785 tonnes in 1990)
and, in particular, into Italy by Camar (45 130 tonnes in 1990).
On 31 December 1990 civil war broke out in Somalia and the normal flow of Camar's imports was interrupted.
From the outbreak of war until the common organisation of the market came into force in 1993 Camar supplied the Italian market
by obtaining supplies from two ACP countries, Cameroon and the Windward Islands, and from certain third countries from which
it had already been importing bananas since 1988.
From the introduction of the common organisation of the market in July 1993 to the end of 1997 Camar was issued with Category
A import licences (for 4 008.521 tonnes in 1993, 8 048.691 tonnes in 1994, 3 423.761 tonnes in 1995 and 5 312.671 tonnes in
1996) and also with Category B licences (for 5 622.938 tonnes in 1993, 10 739.088 tonnes in 1994, 6 075.934 tonnes in 1995
and 2 948.596 tonnes in 1996).  In 1997 Camar was issued with import licences for a quantity of 7 545.723 tonnes for Category
A and 2 140.718 tonnes for Category B.
During that period the quantities of bananas imported from Somalia by the applicant amounted to approximately 482 tonnes in
1993, 1 321 tonnes in 1994, 14 140 tonnes in 1995 and 15 780 tonnes in 1996.  In 1997 banana production in Somalia was expected
to be around 60 000 tonnes, but following climatic problems and in the absence of any suitably equipped port other than Mogadishu,
exports from Somalia were limited to 21 599 tonnes, 12 000 of which were marketed by Camar.
...
Since the common organisation of the market came into force Camar has repeatedly requested the Commission to increase its
third country banana quota by an amount equal to the difference between the traditional quantity of Somalian bananas provided
for by Regulation No 404/93 (60 000 tonnes) and the quantities which Camar actually imported or could have imported into the
Community, and to issue it with licences corresponding to the difference between those quantities.  The applicant cited as
precedents here the measures which the Commission had adopted after cyclones Debbie, Iris, Luis and Marilyn.
The actions before the Court of First Instance
Case T-79/96
In Case T-79/96, Camar Srl (hereinafter
Camar) asked the Court of First Instance to declare that, by failing to take, for the 1996 marketing year, the steps which were
necessary to enable it to overcome its supply problems resulting from the crisis in Somalia and which it had sought from the
Commission in the course of proceedings under the second paragraph of Article 175 of the EC Treaty (now the second paragraph
of Article 232 EC) for failure to act, the Commission had infringed Article 30 of Regulation No 404/93 and Article 40(3) of
the EC Treaty (now, after amendment, Article 34(2) EC).  Camar also sought an order that the Commission pay compensation for
the damage it had suffered as a result of such failure to act.
In support of its action for failure to act, Camar relied upon two grounds alleging, first, infringement of the obligation
to take action imposed by Article 30 of Regulation No 404/93 in order to assist the transition from the various national arrangements
to the common organisation of the markets established by that regulation and, secondly, the Commission's obligation to act
in accordance with the principle of non-discrimination with regard to operators who had traditionally marketed bananas from
certain ACP countries and from certain overseas French departments affected by the tropical storms.
Case T-260/97
In Case T-260/97, Camar asked the Court of First Instance to annul the Commission's Decision of 17 July 1997 (hereinafter
the Decision of 17 July 1997), rejecting Camar's request, pursuant to Article 30 of Regulation No 404/93, that it determine the licences to be issued
to Camar to import bananas from third countries and non-traditional ACP countries as a category B operator for 1997 and subsequent
years on the basis of the quantities of bananas which it had marketed during the years 1988 to 1990 until its normal reference
quantities were restored.  It also asked that the Commission be ordered to pay compensation for the past and future losses
it suffered as a result of that decision.  In the alternative, it asked that the Council be ordered to pay compensation for
failing to adopt special provisions under Regulation No 404/93 to deal with situations such as Camar's.
In support of its claims for annulment, Camar relied on several grounds, the first three of which were based on infringement
of Article 30 as a result first, of incorrect interpretation of Regulation No 404/93; second, of incorrect appraisal of the
facts; and third, misuse of powers.
In support of its claims for compensation against the Council, Camar argued that if it appeared that the Commission did not
have the necessary powers to resolve the situation, it must be inferred from this that Regulation No 404/93 was to be regarded
as unlawful for having allowed the existence of such a legal vacuum.
Case T-117/98
In Case T-117/98, Camar and Tico Srl (hereinafter
Tico) asked the Court of First Instance to annul the Commission's Decision of 23 April 1998 rejecting their application for adjustment
of the tariff quota, as provided for in Article 16(3) of Regulation No 404/93, for the first two quarters of 1998 to take
account of imports from Somalia in 1996, having regard to the reduction in the quantities of Somalian bananas available as
a result of the meteorological phenomenon known as
El Niño which had damaged banana plantations in Somalia between October 1997 and January 1998.  Camar and Tico claimed, in addition,
that the Commission should be ordered to compensate them for the losses suffered as a result of that decision.
In support of their action for annulment, Camar and Tico put forward four pleas, three of which alleged infringement of Article
16(3) of Regulation No 404/93 in that, first, the Commission breached the conditions for application of that article; second,
it failed to consider the effects of the exceptional circumstances referred to in that article; and third, it failed to apply
the procedure provided for in Article 27 of that regulation.
The contested judgment
The operative part
In the contested judgment, the Court of First Instance:
1.
In Case T-79/96, declares that, by failing to take the necessary measures provided for in Article 30 of Council Regulation
(EEC) No 404/93 of 13 February 1993 on the common organisation of the market in bananas with respect to the applicant, the
Commission has failed to fulfil its obligations under that article;
2.
In Case T-260/97, annuls the Commission's decision of 17 July 1997 rejecting the application which the applicant submitted
on the basis of Article 30 of Regulation No 404/93;
3.
In Case T-117/98, annuls the Commission's decision of 23 April 1998 rejecting the application which the applicants submitted
on the basis of Article 16(3) of Regulation No 404/93;
4.
In Cases T-79/96 and T-117/98, dismisses the action for compensation as inadmissible;
5.
In Case T-260/97, orders the Commission to pay compensation for the damage suffered by the applicant as a result of the decision
of 17 July 1997 rejecting the application submitted by the applicant on the basis of Article 30 of Regulation No 404/93; Orders the parties to inform the Court, within six months of the date on which this judgment is delivered, of the sums to
be paid, determined by common accord; Orders that, in the event of failure to reach agreement, they shall submit their quantified claims to the Court within that
period;
6.
Orders the Commission to pay the costs in Cases T-79/96 and T-117/98;
7.
Orders the Commission to pay 90% of the costs in Case T-260/97;
8.
Orders the Council to pay 10% of the costs in Case T-260/97;
9.
Orders the Italian Republic and the French Republic to bear their own costs.
Following an application by the Commission under Article 85 of its Rules of Procedure, the Court of First Instance, by order
of 6 December 2000, ruled as follows on the costs of the interlocutory proceedings which Camar had brought in Cases T-79/96
and T-260/97:
1.
The Commission is ordered to bear its own costs, as well as those incurred by Camar in Case T-79/96 R.
2.
The Commission is ordered to bear its own costs in Case T-260/97 R and 90% of those incurred by Camar in the same case.
3.
The Council shall bear its own costs in Case T-260/97 R.
4.
Camar shall bear 10% of the costs it incurred in Case T-260/97 R.
5.
The Italian Republic and the French Republic shall bear their own costs in Case T-79/96 R.
6.
The French Republic shall bear its own costs in Case T-260/97 R.
Under Article 77(b) of its Rules of Procedure, the Court of First Instance decided, by order of 7 February 2001, to stay proceedings
in Case T-260/97 pending the judgment of the Court of Justice disposing of this appeal.
The grounds of judgment in Cases T-79/96 and T-260/97
With regard to Cases T-79/96 and T-260/97, the Court of First Instance found, first of all, at paragraph 102 of the contested
judgment, that both in its action for declaration of failure to act in Case T-79/96 and in its action for annulment in Case
T-260/97, Camar was seeking a declaration that the Commission, by its failure to act in the first case and its express refusal
to act in the second, had failed to have regard to its obligation to act under Article 30 of Regulation No 404/93.  It decided,
therefore, to examine the pleas relating to that article.
The Court of First Instance pointed out first of all, at paragraph 138 of the contested judgment, that the Court of Justice
had already ruled on the interpretation of Article 30 of Regulation No 404/93 in Case C-68/95
T. Port
[1996] ECR I-6065.  Stating, at paragraph 139 of the contested judgment, that it was not disputed that Camar's difficulties
were not the result of action it took before Regulation No 404/93 came into force, it held, having regard to paragraphs 36
and 38 of the judgment in
T. Port
, cited above, that the conditions for application of Article 30 thereof could be regarded as satisfied in the present case
if Camar had encountered difficulties associated with the transition from national arrangements to the Community system and
if the intervention of the Commission was required in order to resolve those difficulties.
In that regard, the Court of First Instance particularly stated, at paragraph 140 of the contested judgment, as follows: As for the supply problems pleaded by the applicant, it should be pointed out first of all that, as regards the possibility
of interchanging sources of banana supplies, the Italian arrangements before Regulation No 404/93 came into force were considerably
more flexible than the Community system.  As the applicant stresses, without being disproved by the Commission, the Italian
arrangements allowed unlimited quantities of ACP bananas to be imported free of customs duties. Furthermore, as regards the
import of third country bananas, even though the Italian arrangements provided for a quota, operators could obtain such a
quota without reference to the quantities and origin of the bananas they had imported in previous years.  The common organisation
of the market in bananas, on the other hand, which was established by Regulation No 404/93, provides that ACP bananas may
enter the Community market free of customs duties only until the traditional quantities or the tariff quota have been used
up, and that each operator may obtain import licences only according to the origin of the bananas (Community, traditional
ACP countries, third countries and non-traditional ACP countries) and on the basis of the average quantities imported over
a reference period.  Clearly, the introduction of the common organisation of the market limited the scope for imports which
existed under Italian legislation prior to Regulation No 404/93.
After having held, at paragraphs 141 and 142 of the contested judgment, that as a result particularly of the system established
by Regulation No 404/93, it is difficult for an operator who loses his usual suppliers of Community or traditional ACP bananas
to replace them from other suppliers of such bananas, the Court of First Instance held, at paragraph 143 of the contested
judgment, as follows: ... even if the applicant's difficulties in obtaining supplies of bananas were associated with the civil war which occurred
in Somalia at the end of 1990, they are a direct consequence of the introduction of the common organisation of the market
because the system in fact significantly reduced the scope provided under the previous Italian arrangements for Camar to replace
the shortfall in Somalian bananas.  Those difficulties thus had very serious consequences for the viability of Camar's economic
activity and could have endangered the continuation of that activity.  They therefore constituted
difficulties of a sensitive nature which, for the purposes of Article 30 of Regulation No 404/93 as explained in paragraph 38 of the judgment in
T. Port
, give rise to an obligation on the Commission to take any measures it judges necessary.
The Court of First Instance considered, at paragraphs 144 to 148 of the contested judgment, whether the measures requested
by Camar in response to those difficulties were necessary or if the difficulties could have been overcome in some other way.
It held, in that regard, at paragraph 149 of the contested judgment, that the Commission had committed a manifest error of
appraisal in considering that Camar was capable of overcoming the difficulties caused by the transition from the Italian national
arrangements to the Community system by relying on the operation of the market.  It added in the same paragraph that, in point
of fact, the only way for Camar to deal with the difficulties it faced would have been for the Commission to adopt transitional
measures as provided for in Article 30 of Regulation No 404/93.
At paragraphs 150 and 151 of the contested judgment, the Court of First Instance continued as follows:
This conclusion is not invalidated by the Commission's argument that Article 30 of Regulation No 404/93, as interpreted by
the Court of Justice in its judgment in
T. Port
, requires the Commission to take action only where banana importers encounter difficulties which are not just inherent in
the transition from the national arrangements to the Community system, but which also threaten their existence.
It should also be pointed out that in paragraph 43 of the judgment in
T. Port
the Court of Justice stated that Article 30 may require the Commission
to lay down rules catering for cases of hardship arising from the fact that importers of third-country bananas or non-traditional
ACP bananas meet difficulties threatening their existence.  However, this statement cannot be understood to mean that the Commission is under an obligation to take action only in
such cases.  Such an interpretation would conflict with the wording of Article 30, which, as has already been stressed, provides
that the Commission must take any measures necessary to overcome
difficulties of a sensitive nature, and it would be incompatible with the principles of sound administration and protection for the right to pursue a professional
or trade activity.  Furthermore, the reference to the threat to the operator's existence followed from the specific wording
of the question referred for a preliminary ruling (see judgment in
T. Port
, paragraph 23).
At paragraphs 152 and 153 of the contested judgment, the Court of First Instance upheld, in the light of all those considerations,
the first plea in Case T-79/96 and the first to third pleas in Case T-260/97 and, without examining the other pleas raised,
declared to be well founded Camar's applications for declarations that, in Case T-79/96, the Commission had unlawfully failed
to take the necessary measures as provided for in Article 30 of Regulation No 404/93 and, in Case T-260/97, that the Decision
of 17 July 1997 was unlawful.
In Case T-260/97, the Court of First Instance also held that the claim for damages against the Commission was well founded.
At paragraph 205 of the contested judgment, it recalled its case-law according to which, in the field of administrative action,
any infringement of law constitutes illegality which may give rise to liability on the part of the Community.  At paragraph
206 of that judgment, it held that the Decision of 17 July 1997 was to be regarded as an administrative act, even if it was
based on Article 30 of Regulation No 404/93, which gives the Commission broad discretionary power, and that, therefore, since
the decision had been taken in breach of that provision, the first condition required to render the Commission liable was
satisfied.
After holding that the other conditions in that regard were also satisfied and that, therefore, the liability of the Community
was incurred by virtue of the Commission's action, the Court of First Instance stated, at paragraph 212 of the contested judgment,
that there was no need to adjudicate on the liability of the Council, which Camar had alleged in the alternative.
The grounds of judgment in Case T-117/98
In relation to the admissibility of the claims for annulment in Case T-117/98, the Court of First Instance noted, at paragraph
93 of the contested judgment, that it follows from the case-law of the Court of Justice that, where, as in the present case,
a rejection by the Commission relates to the adoption of a regulation, the persons concerned can seek annulment of that decision
only if they demonstrate that, although the regulation in question would not have been addressed to them, it would have been
of direct and individual concern to them.
On the question whether the regulation which the Commission refused to adopt in that case would have been of direct and individual
concern to Camar and Tico, the Court of First Instance held, at paragraph 96 of the contested judgment, as follows: ... that regulation, in whose implementation the national authorities would have had no discretionary power, would have affected
the applicants by reason of circumstances in which they are differentiated from all other persons.  The purpose of the measures
sought from the Commission was to allocate an additional quantity of import licences to those operators who had been victims
of the floods in Somalia, in proportion to the damage they had suffered.  It is apparent from the documents before the Court
that until 1997 Camar was the main importer of Somalian bananas, and that from the fourth quarter of 1997 Tico temporarily
took over that position.  The reduction in the quantities of Somalian bananas available during the fourth quarter of 1997
and the first quarter of 1998 thus particularly affected the applicants, who would consequently have been the main ones to
benefit from the increase in the tariff quota.  Accordingly, the Commission's refusal to adjust the tariff quota clearly did
not affect the applicants in the same way as any other importer of Somalian bananas, but affected them by reason of circumstances
in which they were differentiated from all other operators trading on the same market.
As a result, at paragraph 97 of the contested judgment, the Court of First Instance declared the claim for annulment in Case
T-117/98 admissible.
Turning to the substance, the Court of First Instance started by stating, at paragraph 161 of the contested judgment, that,
by the first plea in Case T-117/98, Camar and Tico were claiming that during the last quarter of 1997 and the first two quarters
of 1998 the conditions for application of Article 16(3) of Regulation No 404/93 were satisfied having regard to the impact
which
El Niño had on production in Somalia.
The Court of First Instance noted at paragraph 163 of the contested judgment, that it follows particularly from paragraphs
27 and 31 of the judgment in
T. Port
, cited above, that two conditions must be satisfied at the same time if Article 16(3) is to be applied: there must be an
exceptional circumstance affecting the production of Community bananas or imports of traditional ACP bananas, and there must
be a risk of a shortfall in banana supplies to the Community market.
After finding, at paragraph 164 of the contested judgment, that the exceptional floods which occurred in Somalia from 1997
to 1998 as a result of the climatic phenomenon
El Niño satisfied the first condition for application of Article 16(3) of Regulation No 404/93, the Court of First Instance continued,
in relation to the second condition, as follows:
... it should be pointed out, first of all, that the applicants do not need to prove that there was an actual shortfall in
supplies to the Community market, they simply need to demonstrate that there was a risk of such a shortfall.  The applicants'
claim, not disproved by the Commission, that there was a significant drop in imports of Somalian bananas during the last quarter
of 1997 and the first half of 1998 supports their contention that there was such a risk to the Italian market overall, and
therefore to a substantial section of the Community market.  The Commission did not provide any information to refute that
claim when, in reply to a written question from the Court of First Instance, it explained that supplies to the Community market
in 1997 could be regarded as adequate given that, faced with a 94 000 tonne reduction in imports of traditional ACP bananas
(including 3 522 tonnes from Somalia) and an increase in Community demand of 86 000 tonnes, Community production had increased
by some 126 000 tonnes and imports from third countries by some 64 000 tonnes compared with 1996.
First, as regards the increase in the production of Community bananas in 1997, the Commission has not explained how that increase
could compensate for reductions in Somalian imports in 1998.  Second, as regards the increase in imports from third countries
in 1997 compared with 1996, it is clear from the figures supplied by the Commission itself that the imports in 1997 did not
use up the tariff quota fixed in the forecast supply balance; it therefore cannot be claimed that there was an increase, compared
with the forecast, which was capable of supplementing any shortfall in supply.
Furthermore, if, as the Commission's reply appears to suggest, the Commission actually based its assessment of the risk of
a shortfall in supplies to the market in 1998 on the 1997 production figures for Community bananas, it would have committed
an error of law in the application of Article 16 of Regulation No 404/93.  As the Court of Justice explained in its judgment
in
T. Port
(paragraph 31), if an increase in the production of Community bananas is to be taken into account in order to compensate
for a reduction in imports of traditional ACP bananas which has occurred during a particular year, it must be an increase
compared with the forecast supply balance for the same year rather than with production in the previous year.
Finally, the fact that, as the Commission accepted at the hearing, it receives figures relating to the situation of the banana
market every week makes it difficult to understand why it has never, at any stage in the proceedings, provided figures for
supplies to the Community market in 1998 in response to the applicants' claims.  In those circumstances, by using only figures
for 1997, the Commission gave further weight to the evidence provided by the applicants concerning the market situation in
1998.
It is clear from the above that, in the present case, the second condition for application of Article 16(3) is also satisfied.
Thus upholding the plea based on infringement of the conditions for application of Article 16(3) of Regulation No 404/93,
the Court of First Instance declared the application for annulment in Case T-117/98 well founded without dealing with the
other pleas put forward.
The appeal
The Commission claims that the Court should:
─
set aside the judgment;
─
declare the action in Case T-79/96 unfounded;
─
declare the action for annulment and damages in Case T-260/97 unfounded;
─
declare inadmissible, alternatively unfounded, the action in Case T-117/98;
─
order Camar and Tico to pay the costs of this appeal and the proceedings before the Court of First Instance.
Camar and Tico claim that the Court should:
─
dismiss the Commission's appeal;
─
order the Commission to pay the costs.
The Council requests the Court to:
─
reverse the contested judgment;
─
order Camar and Tico to pay the Council's costs relating to the proceedings at first instance, the interlocutory proceedings
and this appeal.
The French Republic, which had intervened in support of the Commission's claims in Case T-79/96 and of those of the Commission
and of the Council in Case T-260/97, claims that the Court should:
─
set aside the contested judgment;
─
as a result, declare the actions in Cases T-79/96 and T-260/97 unfounded;
─
order Camar and Tico to pay the costs.
The Italian Republic, which had intervened in support of Camar's claims in Case T-79/96, claims that the Court should:
─
dismiss the Commission's appeal;
─
order the Commission to pay the costs.
The Commission raises three grounds of appeal.  One of those grounds is based on infringement, by the Court of First Instance,
of two of the conditions of application of Article 30 of Regulation No 404/93 and concerns Cases T-79/96 and T-260/97. The
other two grounds, which relate to Case T-117/98, are based on the infringement by the Court of First Instance of the conditions
of admissibility of an action for annulment of a refusal to adopt a measure of general application and of the second of the
conditions governing the application of Article 16(3) of Regulation No 404/93 referred to in paragraph 27 of this judgment.
Conditions of application of Article 30 of Regulation No 404/93 (Cases T-79/96 and T-260/97)
Arguments of the parties
The Commission, supported by the French Government, contends that, in accordance with the Court's case-law, the application
of Article 30 of Regulation No 404/93 is subject to the satisfaction, in particular, of two conditions.  They are, first,
that the difficulties encountered by the undertaking concerned are due to the transition from the former national arrangements
to the new Community arrangements and, second, that those difficulties are such as to threaten the existence of that undertaking.
On the first of those conditions, the Commission and the French Government complain that the Court of First Instance confined
itself to stating, at paragraph 140 of the contested judgment, that the Italian arrangements before Regulation No 404/93 came
into force were considerably more flexible than the system established by that regulation, without considering the real effects
of the former arrangements on Camar's position and, in particular, the question whether they would have enabled that undertaking
to overcome the difficulties connected to the importation of bananas from Somalia during 1995 and 1996.
On the second of those conditions, the Commission and the French Government maintain that, at paragraph 151 of the contested
judgment, the Court of First Instance wrongly held that a threat to the existence of the undertaking concerned is not a necessary
condition for the application of Article 30 of Regulation No 404/93 and that the Commission is obliged to take action under
that provision even if no such threat exists.  They rely, in that regard, particularly on paragraph 43 of the judgment in
T. Port
, cited above, where the Court held that
Article 30 of [Regulation No 404/93] authorises and, depending on the circumstances, requires the Commission to lay down rules
catering for cases of hardship arising from the fact that importers of third-country bananas or non-traditional ACP bananas
meet difficulties threatening their existence.
The Commission argues from the foregoing that the contested judgment should be annulled not only in that it upheld the actions
for failure to act and annulment in Cases T-79/96 and T-260/97, but also in that, in Case T-260/97, it ordered the Commission
to pay compensation for the damage suffered by Camar as a result of the Decision of 17 July 1997.  It maintains, in the latter
regard, that, under paragraph 206 of the contested judgment, its liability results from the fact that such decision was taken
in breach of Article 30 of Regulation No 404/93.  Since that was not the case, it should not have been held liable.
The Council also requests that the contested judgment be set aside in that it holds the Commission liable for the damage suffered
by Camar.  To that effect, it contends that it follows from the Court's case-law (see Case C-352/98 P
Bergaderm and Goupil
v
Commission
[2000] ECR I-5291, paragraphs 43 to 46) that it is not the individual or general nature of a measure but the discretion enjoyed
by its author which determines whether its illegality gives rise to entitlement to compensation or whether it is necessary
to establish a serious breach of a rule of law intended to confer rights on individuals.  As a result, having regard to the
Commission's broad discretion in the matter, the Court of First Instance was wrong to hold, at paragraph 206 of the contested
judgment, that the mere illegality of the Decision of 17 July 1997 was sufficient to render the Community liable.  It should
have investigated whether that illegality constituted a serious breach of a rule of law intended to confer rights on individuals.
Camar and Tico, and the Italian Government, argue that the Commission is wrong in claiming that the Court of First Instance
did not investigate whether the previous national arrangements would have enabled Camar to overcome the difficulties encountered
in 1995 and 1996.  Moreover they differ as to the effect of the judgment in
T. Port
, cited above, paragraph 43 of which is not intended to indicate that one of the conditions for the application of Article
30 of Regulation No 404/93 is that there be a threat to the existence of the operators concerned, but to compare Articles
30 and 16(3) of the same regulation.  That paragraph should be read with reference to the specific question asked by the national
court in that case. Findings of the Court
It is clear from the 22nd recital in the preamble to Regulation No 404/93 that Article 30 of that regulation is intended to
deal with any disturbance in the internal market which the replacement, in the banana sector, of the various national markets
by the common organisation of the market threatened to bring about. According to that recital, Article 30 gives the Commission
the power to take any transitional measures required to overcome the difficulties of implementing the common organisation
of the market.  Furthermore, the Court has held that application of Article 30 is subject to the condition that the specific
measures which the Commission must adopt are intended to assist transition from national arrangements to the common organisation
of the market and that they are necessary for that purpose (see, particularly, Case C-442/99 P
Cordis
v
Commission
[2001] ECR I-6629, paragraph 12).
Not only did the Court of First Instance note, at paragraph 140 of the contested judgment, that the Italian arrangements before
Regulation No 404/93 came into force were considerably more flexible than the Community system and that the introduction of
the common organisation of the market had limited the scope for imports which existed under that national system, but it also
found, at paragraph 143 of the contested judgment, that the difficulties in obtaining supplies of bananas encountered by Camar
were a direct consequence of the introduction of the common organisation of the market precisely because that system had,
in fact, significantly reduced the scope provided under the national arrangements for Camar to replace the shortfall in Somalian
bananas.
In so doing, the Court of First Instance established to the requisite legal standard  the existence of a link between the
difficulties in obtaining supplies encountered by Camar and the replacement of the Italian arrangements before Regulation
No 404/93 came into force by the common organisation of the market.
With reference to the objection of the Commission and the French Government that only difficulties threatening the existence
of the undertaking concerned can justify the Commission's intervening under Article 30 of Regulation No 404/93, it is appropriate
to point out that, after describing, at paragraph 143 of the contested judgment, the problems encountered by Camar as
difficulties of a sensitive nature within the meaning of that provision, the Court of First Instance held, correctly, at paragraphs 150 and 151 of the judgment,
that the requirement of difficulties threatening the existence of the undertaking cannot be deduced from the judgment in
T. Port
, cited above.
In the case which gave rise to that judgment, the Court was asked to reply to a question referred to it for a preliminary
ruling, namely whether Article 16(3) or Article 30 of Regulation No 404/93 requires the Commission
to lay down rules catering for cases of hardship arising from the fact that importers of third-country bananas or non-traditional
ACP bananas meet difficulties threatening their existence when an exceptionally low quota is allocated to them on the basis
of the reference years to be taken into consideration under Article 19(2) of Regulation [No 404/93] (see
T. Port
, cited above, paragraphs 23 and 26).
By replying to that question to the effect that Article 30 but not Article 16(3) of Regulation No 404/93 applies to such a
situation, the Court by no means ruled out that Article 30 could also apply to other types of difficulties, since they are
inherent in the transition from national arrangements existing before that regulation entered into force to the common organisation
of the market.
Any other interpretation would, in addition, be contrary to the wording of Article 30 of Regulation No 404/93 as well as its
objective as it appears from the 22nd recital in the preamble to that regulation, which in no way requires the application
of that article to be restricted to cases of difficulties threatening the existence of the undertaking concerned.
Therefore, the ground of appeal based on infringement, by the Court of First Instance, of the conditions governing the application
of Article 30 of Regulation No 404/93 must be dismissed.
As a result, the claim for a declaration that the actions for failure to act and annulment in Cases T-79/96 and T-260/97 are
unfounded cannot be upheld.
With regard to the claim that the contested judgment should be set aside in so far as it orders the Commission to pay compensation
for the damage pleaded by Camar in Case T-260/97, it also follows from the foregoing that the Commission's ground of appeal
that such order was based on a mis-application of Article 30 of Regulation No 404/93 must be dismissed.
As for the Council's ground of appeal complaining that the Court of First Instance based itself, in order to hold the Commission
liable, on its case-law according to which, in the field of administrative action, any infringement of the law constitutes
illegality that is capable of rendering the Community liable, it is appropriate to point out that the system of rules which
the Court has worked out in relation to the non-contractual liability of the Community takes into account,
inter alia
, the complexity of the situations to be regulated, difficulties in the application or interpretation of the texts and, more
particularly, the margin of discretion available to the author of the act in question (see Joined Cases C-46/93 and C-48/93
Brasserie du pêcheur and Factortame
[1996] ECR I-1029, paragraph 43, and
Bergaderm and Goupil
v
Commission
, cited above, paragraph 40).
It is appropriate to point out also that, Community law confers a right to reparation where three conditions are met: the
rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there
must be a direct causal link between the breach of the obligation resting on the author of the act and the damage sustained
by the injured parties (see the judgments cited above
Brasserie du pêcheur and Factortame
, paragraph 51, and
Bergaderm and Goupil
v
Commission
, paragraphs 41 and 42).
As to the second condition, the decisive test for finding that a breach of Community law is sufficiently serious is whether
the Community institution concerned manifestly and gravely disregarded the limits on its discretion (see the judgments cited
above
Brasserie du pêcheur and Factortame
, paragraph 55, and
Bergaderm and Goupil
v
Commission
, paragraph 43).  Where that institution has only considerably reduced, or even no, discretion, the mere infringement of Community
law may be sufficient to establish the existence of a sufficiently serious breach (Case C-5/94
Hedley Lomas
[1996] ECR I-2553, paragraph 28; Joined Cases C-178/94, C-179/94 and C-188/94 to C-190/94
Dillenkofer and Others
[1996] ECR I-4845, paragraph 25; Case C-127/95
Norbrook Laboratories
[1998] ECR I-1531, paragraph 109; Case C-424/97
Haim
[2000] ECR I-5123, paragraph 38, and
Bergaderm and Goupil
v
Commission
, cited above, paragraph 44).
It follows from the foregoing that the decisive test for determining whether there has been such an infringement is not the
individual nature of the act in question, but the discretion available to the institution when it was adopted.
In those circumstances, it must be held that the Court of First Instance made an error of law when it held that the Commission's
liability could arise from the mere illegality of the Decision on 17 July 1997, without taking account of the discretion which
the Commission enjoyed in the adoption of that measure.
However, it should be pointed out that where the grounds of a judgment of the Court of First Instance disclose an infringement
of Community law but the operative part of the judgment is shown to be well founded for other legal reasons, the appeal must
be dismissed (see Case C-30/91 P
Lestelle
v
Commission
[1992] ECR I-3755, paragraph 28, and Case C-210/98 P
Salzgitter
v
Commission
[2000] ECR I-5843, paragraph 58).
At paragraph 145 of the contested judgment, the Court of First Instance held that, as the Court of Justice pointed out in
paragraph 38 of its judgment in
T. Port
, cited above, the Commission has a broad discretion when assessing whether transitional measures are necessary on the basis
of Article 30 of Regulation No 404/93.
Furthermore, as is apparent from paragraph 18 of this judgment, the Court of First Instance concluded, at paragraph 149 of
the contested judgment, both that the Commission had committed a manifest error of appraisal in considering that Camar was
capable of overcoming the difficulties caused by the transition from the Italian national arrangements to the Community system
by relying on the operation of the market, and that the only way that Camar could deal with the difficulties it faced was
for the Commission to adopt transitional measures as provided for in Article 30 of Regulation No 404/93.
Such manifest and grave disregard, by the Commission, of the limits placed on its discretion is a sufficiently serious infringement
of Community law, within the meaning of the case-law cited at paragraphs 53 and 54 of this judgment, and is therefore such
as to render the Community liable.
Since it has not been disputed that the other conditions essential to the non-contractual liability of the Community are satisfied
in this case, the Court of First Instance correctly upheld the claim for compensation against the Commission in Case T-260/97.
As a result, the claim that the contested judgment should be set aside, in so far as it orders the Commission to compensate
Camar for the damage pleaded in this case, must be dismissed.
Conditions of admissibility of an action for annulment of a refusal to adopt a measure of general application (Case T-117/98)
Arguments of the parties
According to the Commission, the Council and the French Government, the Court of First Instance wrongly held, at paragraph
96 of the contested judgment, that the regulation which the Commission was supposedly required to adopt under Article 16(3)
of Regulation No 404/93 concerned Camar and Tico individually because they were the main importers of Somalian bananas and
were thus affected by reason of circumstances in which they were differentiated from all other operators trading on the same
market.
For those three parties, the measure requested, namely an increase of the tariff quota for imports of bananas from third countries
and non-traditional ACP countries provided for by Article 18 of Regulation No 404/93, could be taken only by way of an act
of general and abstract application the legislative nature of which, under the case-law of the Court of Justice and the Court
of First Instance, could be put in issue only if it were possible to determine more or less precisely the number or even the
identity of the individuals to whom it applies at any given time, since it is common ground that such application takes effect
by virtue of an objective legal or factual situation defined by the measure in relation to its purpose.
They also maintain that the fact of subjecting the admissibility of an action brought by an undertaking to an examination
of that undertaking's position on a market would make access to the legal remedies laid down by the Treaty depend on judicial
assessment of developments on that market and would procure for the largest undertakings privileged
locus standi
which would be contrary to the principle of non-discrimination.
The Council contends, furthermore, that, if the situation had genuinely necessitated an adjustment of the tariff quota under
Article 16(3) of Regulation No 404/93, the Commission would not have been obliged to allocate the additional quantities to
importers of Somalian bananas, so that, contrary to the statement of the Court of First Instance at paragraph 96 of the contested
judgment, Camar and Tico would not necessarily have been the principal beneficiaries of the regulation which the Commission
declined to adopt.
Camar, Tico and the Italian Government argue that the Court of First Instance's conclusions as to the admissibility of the
application for annulment of the Commission's refusal to act under Article 16(3) of Regulation No 404/93 cannot be challenged
on appeal, given that they were based on findings of fact relating to the position of those two companies on the market.
Alternatively, Camar, Tico and the Italian Government maintain that the Court of First Instance correctly applied the case-law
of the Court of Justice and the Court of First Instance in that respect.  In that point, they maintain in particular that,
in adopting the requisite measures, the Commission should have provided not only for an increase of the tariff quota, but
also specific rules and procedures for allotting the additional quantity allocated so as to ensure that Camar and Tico were
effectively able to take advantage of them. Findings of the Court
With regard to the admissibility of this ground of appeal, while it is true that under Article 225 EC and Article 51 of the
EC Statute of the Court of Justice an appeal lies on a point of law only and that, therefore, the Court of First Instance
has, in principle, sole jurisdiction to find and appraise the facts, the Court of Justice nevertheless has jurisdiction to
review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from
them (see, among others, Case C-7/95 P
Deere
v
Commission
[1998] ECR I-3111, paragraph 21, and Case C-449/99 P
EIB
v
Hautem
[2001] ECR I-6733, paragraphs 44 and 45).
In this case the Commission, the Council and the French Government do not challenge the fact, found by the Court of First
Instance, that Camar and Tico were the main Community importers of Somalian bananas, but contend that such finding is not
sufficient to conclude that those companies were concerned individually by the regulation which they had requested the Commission
to adopt under Article 16(3) of Regulation No 404/93.
Since it thus puts in issue the legal conclusions which the Court of First Instance drew from that finding of fact, that ground
of appeal must be declared admissible.
With a view to evaluating the merits of that ground of appeal, it is appropriate to point out, at the outset, that the parties
do not challenge the finding, made by the Court of First Instance at paragraph 93 of the contested judgment, that the rejection
by the Commission which was the subject-matter of the application in Case T-117/98, relates to the adoption of a regulation
and, therefore, individuals may seek annulment of that decision only if they demonstrate that that regulation would have been
of direct and individual concern to them.
According to the Court's consistent case-law a measure of general application such as a regulation can be of individual concern
to natural and legal persons only if it affects them by reason of certain attributes peculiar to them, or by reason of a factual
situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee
(see, particularly, Case C-451/98
Antillean Rice Mills
v
Council
[2001] ECR I-8949, paragraph 49, and Case C-50/00 P
Unión de Pequeños Agricultores
v
Council
[2002] ECR I-6677, paragraph 36).
However, as the Commission, the Council and the French Government have pointed out, the possibility of determining more or
less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that it must
be regarded as being of individual concern to them as long as it is established that that application takes effect by virtue
of an objective legal or factual situation defined by the measure in question (see, in particular,
Antillean Rice Mills
v
Council
, cited above, paragraph 52).
Having regard to the foregoing, it must be held that Camar and Tico were not concerned individually by the regulation which,
according to them, the Commission should have adopted, under Article 16(3) of Regulation No 404/93, in order to adjust the
tariff quota fixed by Article 18 of that regulation to deal with the effect on banana production in Somalia of the exceptional
floods in 1997 and 1998.
Even if that regulation could have derogated, in respect of the fraction of the tariff quota which is adjusted, from the allocation
formula fixed by Article 19(1) of Regulation No 404/93 (see, to that effect, Joined Cases C-9/95, C-23/95 and C-156/95
Belgium and Germany
v
Commission
[1997] ECR I-645, paragraph 34), it would have concerned Camar and Tico only by reason of their objective status of importers
of Somalian bananas, in the same way as every other operator in a similar situation.
Camar and Tico cannot be regarded as being concerned individually by that regulation on the ground that, as main importers
of Somalian bananas, they might have benefited more from it than other operators, given that the fact that a legal provision
may have different specific effects on the various persons to whom it applies is not inconsistent with its nature as a regulation
when that situation is objectively defined (see, in particular, Case 101/76
Koninklijke Scholten Honig
v
Council and Commission
[1977] ECR 797, paragraph 24, and Case C-96/01 P
Galileo and Galileo International
v
Council
[2002] ECR I-4025, paragraph 41).
Clearly, as the Court pointed out in paragraph 44 of the judgment in
Unión de Pequeños Agricultores
v
Council
, cited above, the condition that natural or legal persons may bring an action challenging a regulation only if they are concerned
individually must be interpreted in the light of the principle of effective judicial protection by taking account of the various
circumstances that may distinguish an applicant individually.
It must, however, be stated that, at paragraph 96 of the contested judgment, the Court of First Instance based itself solely
on the fact that Camar and Tico were the main importers of Somalian bananas when it concluded that they were concerned individually
by the regulation which they had requested the Commission to adopt under Article 16(3) of Regulation No 404/93.
In those circumstances, the ground of appeal alleging infringement, by the Court of First Instance, of the conditions of admissibility
of an application for annulment of a refusal to adopt a measure of general application is well founded.
Consequently, the contested judgment must be set aside in so far as it upheld, in Case T-117/98, the action for annulment
of the Commission's Decision of 23 April 1998 rejecting the application by Camar and Tico under Article 16(3) of Regulation
No 404/93, without there being any need to consider the merits of the ground of appeal alleging infringement of one of the
conditions governing the application of Article 16(3) of that regulation.
In accordance with the second sentence of the first paragraph of Article 54 of the EC Statute of the Court of Justice, if
the Court quashes a decision of the Court of First Instance, it may itself give final judgment in the matter, where the state
of the proceedings so permits.  So it is in this case.
Since Camar and Tico have not put forward any circumstance other than that accepted by the Court of First Instance to warrant
the admissibility of the action for annulment in Case T-117/98, it is sufficient to hold in that regard, that it follows from
paragraphs 72 to 79 of this judgment that that action must be dismissed as inadmissible.
Costs
Under the first paragraph of Article 122 of the Rules of Procedure, where the appeal is unfounded or where the appeal is well
founded and the Court itself gives final judgment in the case, it shall make a decision as to costs.
Under Article 69(2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs, if they have been
applied for in the successful party's pleadings.  Since Camar and Tico have been unsuccessful in Case T-117/98 and the Commission
has applied for costs, Camar and Tico must be ordered to pay the costs of that case.
Under Article 69(3) of the Rules of Procedure, which applies to appeals by virtue of Article 118 of those rules, the Court
of Justice may, where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, order
that the costs be shared or that the parties bear their own costs.  Since the Commission and Camar and Tico have each been
unsuccessful on one head it is appropriate to order that they bear their own costs in the appeal proceedings.
Under Article 69(4) of the Rules of Procedure, which also applies to appeals by virtue of Article 118 of those rules, the
Member States and institutions which intervene in the proceedings are to bear their own costs.  Applying that provision, the
Council, the French Republic and the Italian Republic shall bear their own costs in the appeal proceedings.
On those grounds,
THE COURT,
hereby:
1.
Sets aside the judgment of 8 June 2000 of the Court of First Instance in Joined Cases T-79/96, T-260/97 and T-117/98
Camar and Tico
v
Commission and Council
in so far as it allowed, in Case T-117/98, the application for annulment of the Decision of the Commission of the European
Communities of 23 April 1998 rejecting the application made by Camar Srl and Tico Srl on the basis of Article 16(3) of Council
Regulation (EEC) No 404/93 of 13 February 1993 on the common organisation of the markets in the banana sector;
2.
Dismisses the remainder of the appeal;
3.
Dismisses the application for annulment in Case T-117/98 as inadmissible;
4.
Orders Camar Srl and Tico Srl to pay the costs in Case T-117/98;
5.
Orders the parties to bear their own costs in the appeal proceedings.
Rodríguez Iglesias
Puissochet
Wathelet
Schintgen
Timmermans
Gulmann
Edward
La Pergola
Jann
Skouris
Macken
Colneric
von Bahr
Cunha Rodrigues
Rosas
Delivered in open court in Luxembourg on 10 December 2002.
R. Grass
G.C. Rodríguez Iglesias
Registrar
President
–
Language of the case: Italian.