CELEX: 62001CJ0213
Appeal
Action for damages

By application lodged at the Court Registry on 23 May 2001, T. Port GmbH & Co. KG (
T. Port) brought an appeal under Article 49 of the EC Statute of the Court of Justice against the judgment of the Court of First
Instance in Case T-52/99
T. Port
v
Commission
[2001] ECR II-981 (
the judgment under appeal), seeking to have that judgment set aside in part.
Legal background
In the judgment under appeal, the Court of First Instance set out the legal background to the case 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) introduced, from 1 July 1993, common arrangements for the importation of bananas, which replaced the various national
arrangements. A distinction was drawn between
Community bananas produced in the Community,
third-country bananas originating in third countries other than the African, Caribbean and Pacific (ACP) States,
traditional ACP bananas and
non-traditional ACP bananas.
Traditional ACP bananas and
non-traditional ACP bananas meant the quantities of bananas exported by the ACP States which did not exceed or did exceed, respectively, the quantities
traditionally exported by each of those States as set out in the Annex to Regulation No 404/93.
In order to ensure satisfactory marketing of bananas produced in the Community and bananas originating in the ACP States and
other third countries, Regulation No 404/93 provided for the opening of an annual tariff quota of 2.2 million tonnes (net
weight) for imports of bananas from third countries and non-traditional ACP bananas.
Article 19(1) of Regulation No 404/93 (old version) divided the tariff quota as follows: 66.5% for the category of operators
who had marketed third-country and/or non-traditional ACP bananas (category A), 30% for the category of operators who had
marketed Community and/or traditional ACP bananas (category B) and 3.5% for 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).
The first sentence of Article 19(2) of Regulation No 404/93 (old version) read as follows:  On the basis of separate calculations for each of the categories of operators referred to in paragraph 1 ... 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.
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) defined,
inter alia
, the criteria for determining the types of operators in categories A and B who could apply for import licences, according
to the activities which those operators had carried out during the reference period.
Those import arrangements were the subject of a dispute settlement procedure within the framework of the World Trade Organisation
(WTO) following complaints from some third countries.
That procedure gave rise to reports from the WTO Panel of 22 May 1997 and a report from the WTO Standing Appellate Body of
9 September 1997, which was adopted by the WTO Dispute Settlement Body by decision of 25 September 1997. In that decision
the Dispute Settlement Body declared certain aspects of the arrangements governing banana imports into the Community incompatible
with the rules of the WTO.
In order to comply with that decision, the Council adopted Regulation (EC) No 1637/98 of 20 July 1998 amending Regulation
No 404/93 (OJ 1998 L 210, p. 28). The Commission subsequently adopted Regulation (EC) No 2362/98 of 28 October 1998 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 the new arrangements for banana imports, the allocation of the quota between three different categories of operators
was abolished. Regulation No 2362/98 provided that the quotas were to be divided merely between
traditional operators and
newcomers as defined in that regulation. The subdivision of operators into categories A and B depending on the types of activities
which they carried out on the market was also abolished.
Article 4 of Regulation No 2362/98 reads as follows:
1.
Each traditional operator registered in a Member State in accordance with Article 5 shall receive, for each year and for all
the origins listed in Annex I, a single reference quantity based on the quantities of bananas actually imported during the
reference period.
2.
For imports carried out in 1999 under the tariff quotas or as traditional ACP bananas, the reference period shall be made
up of the years 1994, 1995 and 1996.
Article 5(2) to (4) of Regulation No 2362/98 provides:
2.
For the purposes of determining their reference quantity, each operator shall send to the competent authority by 1 July each
year:
(a)
a figure for the total quantity of bananas from the origins listed in Annex I actually imported during each of the years making
up the reference period;  (b) the supporting documents detailed in paragraph 3.
3.
Actual imports shall be attested by both of the following:
(a)
by presenting copies of the import licences used ... by the holder ... in order to release the relevant quantities for free
circulation; and
(b)
by presenting proof of payment of the customs duties due on the day on which customs import formalities were completed. The
payment shall be made either direct to the competent authorities or via a customs agent or representative. Operators furnishing proof of payment of customs duties, either direct to the competent authorities or via a customs agent
or representative, for the release into free circulation of a given quantity of bananas without being the holder or transferee
holder of the relevant import licence used for this purpose ... shall be deemed to have actually imported the said quantity
provided that they have registered in a Member State under Regulation (EEC) No 1442/93 and/or that they fulfil the requirements
of this Regulation for registration as a traditional operator. Customs agents or representatives may not call for the application
of this subparagraph.
4.
For operators established in Austria, Finland or Sweden, proof of the quantities released into free circulation in those Member
States in 1994, and in 1995 up to the third quarter thereof, shall be furnished by presenting copies of the relevant customs
documents and import permits issued by the competent authorities and duly used.
Article 6(3) of Regulation No 2362/98 provides:  Using the information received under paragraph 2, and in light of the total volume of tariff quotas and traditional ACP bananas
as referred to in Article 2, the Commission shall, where appropriate, set a single adjustment coefficient to be applied to
each operator's provisional reference quantity.
Facts and procedure before the Court of First Instance
The Court of First Instance set out the facts as follows in the judgment under appeal:
[T. Port] is in the business of importing fruit and vegetables. Until the entry into force of Regulation No 2362/98 it was
in Category A, and it is a traditional operator for the purposes of that regulation.
By decision of the competent national authorities of 8 December 1998, the applicant's provisional reference quantity for 1999
was established at 13 709 963 kg and that quantity was reduced by 824 833 kg by application of the adjustment coefficient
of 0.939837 set by the Commission under Article 6(3) of Regulation No 2362/98. In addition, the national authorities deducted
from the quantities sought by the applicant, first, the quantities which it was alleged to have imported in 1994 into Austria,
Finland and Sweden, that is to say, 898 692 kg, and, second, the quantity of third-country bananas, fixed at 9 838 861 kg,
which it had been authorised to import by the Finanzgericht (Finance Court), Hamburg.
As regards the last-mentioned quantity (
the quantity judicially determined ), the documents before the Court show that, by interim orders of 19 May and 8, 21 and 28 June 1995, the Finanzgericht Hamburg
(Germany) directed the Hauptzollamt Hamburg-Jonas to authorise T. Port to release a total of 9 860 571 kg of bananas for free
circulation, on payment of the customs duties of ECU 75 per tonne applying at the time to imports of third-country bananas
under the tariff quota, a total of 9 860 571 kg of bananas, although the company concerned did not have the necessary import
licences. In its order of 19 May 1995 the Finanzgericht Hamburg also decided to refer four questions to the Court of Justice
for a preliminary ruling. The first three questions concerned the interpretation of Article 234 of the EC Treaty (now, after
amendment, Article 307 EC), the validity of Commission Regulation (EC) No 478/95 of 1 March 1995 on additional rules for the
application of Council Regulation No 404/93 as regards the tariff quota arrangements for imports of bananas into the Community
and amending Regulation (EEC) No 1442/93 (OJ 1995 L 49, p. 13), and the direct effect of Articles I, II, III and XIII of the
1994 General Agreement on Tariffs and Trade (
GATT 1994), which appears in Annex I A to the Agreement establishing the World Trade Organisation (
the WTO Agreement), approved on behalf of the European Community by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion
on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round
multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1). The fourth question concerned the circumstances in which a national
court might order interim measures when it entertained doubts as to the applicability of the secondary Community law on which
the legal assessment was based. The reference for a preliminary ruling from the Finanzgericht Hamburg was registered as Case
C-182/95; it was initially suspended and then removed from the Court register by order of the President of the Court of Justice
of 12 March 2001.
The documents before the Court also show that after the Bundesfinanzhof (Germany) set aside those orders of the Finanzgericht
Hamburg by decision of 22 August 1995, the Hauptzollamt Hamburg-Jonas, by decisions of 29 August and 1 September 1995, fixed
the customs duty payable by T. Port at ECU 850 per tonne, which was the rate set at that time for imports outside the customs
quota. Upon application by T. Port, the Finanzgericht Hamburg, by orders of 22 and 27 September 1995, decided that those decisions
of the Hauptzollamt Hamburg-Jonas had to be temporarily suspended and that the suspension was not to be subject to the provision
of security. By the same orders it referred three questions to the Court of Justice for a preliminary ruling that were identical
in wording to those which it referred in Case C-182/95. That reference for a preliminary ruling gave rise to the judgment
in Joined Cases C-364/95 and C-365/95
T. Port
[1998] ECR I-1023.
It was in those circumstances that T. Port, by application lodged on 19 February 1999, brought an action for damages under
Article 178 in conjunction with the second paragraph of Article 215 of the EC Treaty (now, after amendment, Articles 235 EC
and the second paragraph of Article 288 EC) seeking compensation from the Commission for the loss the latter had occasioned
to the appellant by causing the national authorities to reduce, first, its reference quantity by applying the adjustment coefficient
and, second, the quantities the applicant had applied for by the quantities imported in 1994 into Austria, Finland and Sweden
and by the quantity judicially determined.
In support of its action T. Port put forward a number of pleas, alleging that by its conduct the Commission had infringed,
in the first place, GATT 1994 and the Agreement on Import Licensing Procedures and the General Agreement on Trade in Services
(GATS), contained in Annexes 1A and 1B respectively to the WTO Agreement, secondly, the principle of equal treatment and,
thirdly, the principles of protection of property and of legitimate expectations and the principle of proportionality.
T. Port contended in particular that reducing the quantities which it had applied for by the quantity judicially determined
was contrary to the principle of equal treatment. In the judgment under appeal the Court of First Instance summarised the
arguments put forward by T. Port as follows:
[T. Port] explains that the Finanzgericht Hamburg ruled by interim order that importation of the amount judicially determined
should be approved without a licence provided the normal import duty was paid. The applicant had paid that duty.
It observes that under Article 5(3) of Regulation No 2362/98 operators who, although they do not hold the import licence for
the transaction concerned, furnish proof that they have paid the relevant customs duties are to be deemed to be the importers.
The applicant considers it has furnished such proof, although it has no import licences, by means of the interim order of
the Finanzgericht Hamburg mentioned above. It argues that, according to the principle of equal treatment, imports on the basis
of an interim order of a national court should give rise to the same rights as those under licences.
It is apparent from the judgment under appeal that the Commission challenged T. Port's argument on the following grounds:
[The Commission] explains in this connection that amounts judicially determined may be allocated as reference quantities provided
the import duties have actually been paid and the imports have actually taken place during the reference period, namely, in
this case, between 1994 and 1996.
The applicant's customs debt in respect of the amount judicially determined was, it is true, established by a decision of
the competent national authority, but the Finanzgericht Hamburg ordered the suspension of the payment of that debt without
stipulating that any security should be provided. It is not possible therefore to regard the customs debt as having been paid.
Furthermore, the Commission notes that the quantity of bananas at issue was imported by the applicant without a licence and,
hence, outside the tariff quota, which means that the full rate under the common customs tariff applies to them. So long as
that customs duty remains unpaid it is not possible to take that quantity of bananas into account in calculating the reference
quantity.
The judgment under appeal
In the judgment under appeal the Court of First Instance began by rejecting a plea of inadmissibility raised by the Commission
and T. Port's plea alleging infringement of GATT 1994 and the other agreements referred to in paragraph 7 of this judgment.
As regards the plea alleging infringement of the principle of equal treatment, the Court of First Instance, after rejecting
certain arguments, in paragraph 88 of the judgment under appeal rejected the arguments concerning the reduction in the quantities
applied for by the quantity judicially determined, as follows: Lastly, with regard to the applicant's contention that it could have a quantity of bananas determined by an interim order
of the Finanzgericht Hamburg taken into account, suffice it to say that the Commission is entitled to require all imports
which may be taken into account as reference quantities to be genuine imports. The quantity referred to by the applicant was
imported outside the tariff quota and was therefore subject to the full rate under the common customs tariff. The payment
of the relevant customs duties was then suspended by the interim order of the Finanzgericht Hamburg. In those circumstances,
the applicant cannot ask for that quantity to be taken into account in determining its reference quantity. It is for the applicant
to establish that the customs duties in question have actually been paid, which it has failed to do. In that connection, it
should be added that the Commission stated at the hearing, and was not contradicted on this point, that it informed the competent
German authorities that it would be necessary to take that quantity into account if the abovementioned duties are paid.
After also rejecting the plea alleging infringement of the principles of protection of property, of the protection of legitimate
expectations and of proportionality, the Court of First Instance found, in paragraph 106 of the judgment under appeal, that
T. Port had failed to establish the existence of unlawful conduct for which the Community may incur non-contractual liability
and that therefore the application had to be dismissed. Consequently, it ordered T. Port to bear its own costs and pay those
of the Commission, as applied for by the latter.
The appeal
T. Port claims that the Court should set aside the judgment under appeal in so far as that judgment rejects the plea alleging
that the Commission failed to take due account of the quantity judicially determined when calculating that company's reference
quantity for 1997 to 1999 and order the company to pay all the costs.
The Commission contends that the Court should dismiss the appeal as manifestly unfounded and order T. Port to pay all the
costs in both cases.
Arguments of the parties
T. Port argues, first, that by requiring payment of the customs duty at the full rate of ECU 850 per tonne applicable to imports
carried out outside the tariff quota, in order for the quantity judicially determined to be taken into account for the purpose
of calculating the reference quantity, the Court of First Instance misdirected itself as to the scope of Article 5(2) and
(3) of Regulation No 2362/98. Under those provisions the reference quantity must be established on the basis of all the imports
in respect of which proof is presented of payment of
the customs duties due on the day on which customs import formalities were completed. In the present case the customs duties due on the day of importation were the quota duty of ECU 75 per tonne, since the
Finanzgericht Hamburg decided, in its interim orders, that the quantity judicially determined could be imported, even without
import licences, on payment of those duties. The fact that the Bundesfinanzhof subsequently set aside those orders and the
Hauptzollamt Hamburg-Jonas later amended its decision and set the customs duties payable by T. Port at the full rate applying
to imports carried out outside the tariff quota is of no consequence in this respect.
Secondly, T. Port contends that the quantity judicially determined must be regarded as having been imported under the tariff
quota even though, following importation and payment of the customs duties, the ground on which the Finanzgericht Hamburg
granted the interim measures sought proved to be unfounded. T. Port maintains in that regard that in its interim orders the
Finanzgericht Hamburg complied with the limits which the case-law of the Court of Justice imposes on national courts in the
ordering of interim measures and referred relevant questions to the Court for a preliminary ruling concerning Community law.
It contends that the interim legal protection that national courts are authorised to grant to individuals would amount to
nothing if those individuals could not confidently rely on the fact that the import transactions and the payment of customs
duties determined by the customs authority have created a definitive factual framework.
The Commission maintains that a national court must, even in interlocutory proceedings, take into account the incontestable
rules of Community law and cannot replace them with particular, provisional rules. In deciding, provisionally, that bananas
imported outside the tariff quota were subject only to the quota customs duty, the Finanzgericht Hamburg infringed the unambiguous
provisions of Article 5(2) and (3) of Regulation No 2362/98, which require production of the relevant import licences in order
for that customs duty to apply.
The Commission contends that T. Port's argument that facts which occurred after the date of import are immaterial as regards
determining the rate of the applicable customs duty would, were it valid, mean that any interim order made by a national court,
even if it were unlawful, would make it possible to circumvent Community law. T. Port cannot rely in the present case on the
case-law of the Court of Justice authorising national courts to order interim measures in case of doubt as to the validity
of the Community law on which a national measure is based because the interim orders of the Finanzgericht Hamburg do not meet
the prerequisites specified in that case-law.
Findings of the Court
In order to assess the merits of T. Port's arguments, it is sufficient to observe that it is clear from paragraphs 4 and 5
of this judgment that the importation of the quantity judicially determined on payment of customs duties of ECU 75 per tonne
applying at the time to imports of third-country bananas under the tariff quota was authorised only as a temporary measure
by the interim orders of the Finanzgericht Hamburg, which were based on doubts which that court entertained as to the validity
of the relevant Community legislation, in the light in particular of GATT 1994.
Interim measures ordered in interlocutory proceedings are granted only pending the final decision in the main proceedings,
and without prejudice to that decision. Moreover, interim measures may themselves be challenged, and may be set aside or varied
pending that decision, as was, moreover, the case in this instance, since the orders of the Finanzgericht Hamburg authorising
the release of the quantity judicially determined for free circulation on payment of customs duties of ECU 75 per tonne were
set aside by the Bundesfinanzhof.
It follows that, contrary to what T. Port contends, customs duties determined provisionally in interlocutory proceedings are
not necessarily the customs duties which are applicable on the day on which customs import formalities are completed and proof
of payment of which operators must, under Article 5(3), first subparagraph under (b), of Regulation No 2362/98, provide in
order to demonstrate that the quantities of bananas which they wish to have included in the calculation of the reference quantity
provided for in Article 4 of that regulation have actually been imported.
It also follows that the interim legal protection which national courts are authorised to grant to individuals in accordance
with the case-law of the Court of Justice must not have the effect of creating a definitive factual framework which cannot
be challenged subsequently.
In those circumstances, it must be concluded that T. Port's arguments are unfounded and that its appeal must be dismissed.
Costs
Under Article 69(2) of the Rules of Procedure, applicable to appeals under Article 118 of those Rules, 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 Commission
has applied for costs to be awarded against T. Port and the latter has been unsuccessful, it must be ordered to pay the costs.
On those grounds,
THE COURT
hereby:
1.
Dismisses the appeal;
2.
Orders T. Port GmbH & Co. KG to pay the costs.
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 6 March 2003.
R. Grass
G.C. Rodríguez Iglesias
Registrar
President
–
Language of the case: French.