# Arrêt du Tribunal

**Case T-139/01**

**Comafrica SpA and Dole Fresh Fruit Europe Ltd & Co.**

**v**

**Commission of the European Communities**

(Common organisation of the markets – Bananas – Imports from ACP States and non-member countries – Regulation (EC) No 896/2001 – Regulation (EC) No 1121/2001 – Action for annulment – Admissibility – Person individually concerned – Action for damages)

Judgment of the Court of First Instance (Fifth Chamber), 3 February 2005

Summary of the Judgment

1.     *Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Regulations establishing
detailed rules for the arrangements for importing bananas into the Community – Actions by certain traditional operators –
Inadmissibility*

*(Art. 230, fourth para., EC; Commission Regulations Nos 896/2001 and 1121/2001)*

2.     *Non-contractual liability – Conditions – Sufficiently serious breach of a superior rule of Community law protecting individuals
– Institution without a discretion – Sufficiency of a mere infringement of Community law*

*(Art. 288, second para., EC)*

1.     A measure of general application such as a regulation may, in certain circumstances, be of individual concern to a natural
or legal person and thus in the nature of a decision in regard to that person.

Such is not however the case, regarding certain traditional operators, of Regulation No 896/2001 laying down detailed rules
for the application of Regulation No 404/93 as regards the arrangements for importing bananas into the Community, or of Regulation
No 1121/2001, fixing the adjustment coefficients to be applied to each traditional operator’s reference quantity under the
tariff quotas for imports of bananas. Those regulations constitute measures of general application, which do not affect the
said operators 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 which the addressee of a decision is. Those
operators cannot therefore be regarded as individually concerned, within the meaning of Article 230, para. 4, EC, by the aforementioned
regulations.

(see paras. 107, 115)

2.     In order for the Community to incur non-contractual liability within the meaning of the second paragraph of Article 288 EC
a number of conditions must be satisfied: the alleged conduct of the institutions must be unlawful, there must be actual damage
and there must be a causal link between the alleged conduct and the damage pleaded.

Concerning the first of those conditions, it is necessary that there be a sufficiently serious breach of a rule of law intended
to confer rights on individuals. As regards the requirement that the breach be sufficiently serious, the decisive test for
finding that it is fulfilled is whether the Community institution concerned manifestly and seriously disregarded the limits
on its discretion. Where that institution has only a considerably reduced discretion, or even none, the mere infringement
of Community law may be sufficient to establish the existence of a sufficiently serious breach.

(see paras. 141-142)

:

: **Law**

1
:

2
:

3
:

4
:

5
:

6
:

7
:

8
:

9
:

10
:

11
:

12
:

13
:

14
:

15
:

16
:

1.
: “traditional operators” means economic agents, whether natural persons or entities having legal personality, individual agents
or groups, established in the Community during the period for determining their reference quantities, who have, for their
own account, purchased a minimum quantity of bananas originating in third countries from the producers or, where applicable,
produced, consigned and sold such products in the Community.

Operations as defined in the previous subparagraph shall hereinafter be called “primary imports”.
:

...
:

2.
: “traditional operators A/B” means traditional operators who have carried out the minimum quantity of primary imports of “third-country
bananas” and/or “non-traditional ACP” bananas in accordance with the definitions in Article 16 of Regulation [No 404/93],
as amended by Regulation ... No 1637/98 ...;

3.
: “traditional operators C” means traditional operators who have carried out the minimum quantity of primary imports of “traditional
ACP bananas” in accordance with the definitions in the abovementioned Article 16, as amended by Regulation ... No 1637/98.

1.
: The reference quantity for each traditional operator A/B who submits a written application no later than 11 May 2001 shall
be established on the basis of the average of primary imports of third-country bananas and/or non-traditional ACP bananas
during 1994, 1995 and 1996 taken into account for 1998 for the purposes of administering the tariff quota for imports of third-country
bananas and non-traditional ACP bananas, in accordance with the provisions of Article 19(2) of Regulation ... No 404/93 applicable
in 1998 to the category of operators referred to in paragraph 1(a) of that article.

2.
: The reference quantity for each traditional operator C who submits a written application no later than 11 May 2001 shall be
established on the basis of the average of primary imports of traditional ACP bananas during 1994, 1995 and 1996 carried out
for 1998 as traditional quantities of ACP bananas.

3.
: Operators resulting from a merger of other traditional operators, each with their own rights under this Regulation, shall
enjoy the same rights as those former operators.

17
:

18
:

19
:

20
:

21
:

22
:

23
:

24
:

25
:

26
:

27
:

28
:

29
:

30
:

31
:

32
:

33
:

34
:

35
:

36
:

37
:

38
:

39
:

40
:

41
:

42
:

43
:

44
:

45
:

46
:

47
:

48
:

49
:

50
:

51
:

:

–
: declare the action admissible;

:

–
: annul the contested regulations in so far as they affect them or, in the alternative, annul those regulations *erga omnes*;

:

–
: order the Commission to pay them compensation for the damage suffered following the adoption of the contested regulations;

:

–
: order the Commission to pay the costs.

52
:

:

–
: dismiss the claim for annulment as inadmissible or, in the alternative, as unfounded;

:

–
: dismiss the claim for compensation as unfounded;

:

–
: order the applicants to pay the costs.

53
:

:

–
: dismiss the claim for annulment as inadmissible or, in the alternative, as unfounded;

:

–
: dismiss the claim for compensation as unfounded;

:

–
: order the applicants to pay the costs.

54
:

:

–
: annul the contested regulations;

:

–
: order the Commission to pay the costs.

55
:

56
:

57
:

58
:

59
:

60
:

61
:

62
:

63
:

:

–
: they are traditional operators, not non-traditional ones;

:

–
: they belong to that ‘small group’ of traditional operators which were allocated category A(a) reference quantities in 1998
as opposed to those operators which were allocated category A(b) or A(c) reference quantities in 1998;

:

–
: Regulation No 896/2001 is specifically designed to exclude those operators who were holders of category A(b) or A(c) reference
quantities in 1998 and ‘limit the number of entitled operators to the small group of category A(a) operators’.

64
:

65
:

66
:

67
:

68
:

69
:

70
:

71
:

72
:

73
:

74
:

75
:

76
:

77
:

:

–
: the adjustment coefficient referred to by that regulation is calculated using two variables: the total reference quantity
and the total available quota;

:

–
: the total reference quantity is the sum of the individual reference quantities of each of the traditional operators;

:

–
: the Commission was aware of those individual reference quantities before setting the adjustment coefficient;

:

–
: the publication of the adjustment coefficient enabled each operator directly to know its final reference quantity and its
entitlement to import licences since it knew, before that coefficient was set, the reference quantity for 1998 and that quantity
could not be changed.

78
:

79
:

80
:

81
:

82
:

83
:

84
:

85
:

86
:

87
:

88
:

89
:

90
:

91
:

92
:

93
:

94
:

95
:

96
:

97
:

98
:

99
:

100
:

101
:

102
:

103
:

104
:

105
:

106
:

107
:

108
:

109
:

110
:

111
:

112
:

113
:

114
:

115
:

116
:

117
:

118
:

119
:

120
:

121
:

122
:

123
:

124
:

:

–
: the overall available tariff quota for 2001 was 2 553 000 tonnes;

:

–
: the available tariff quota for traditional operators A/B was 83% of that quantity, or 2 118 990 tonnes;

:

–
: during the reference period 1994 to 1996, import licences were used in respect of 1 590 050 tonnes;

:

–
: the adjustment coefficient should therefore have been set at 1.3327;

:

–
: the average of the imports made by Comafrica in the reference period was [...] tonnes;

:

–
: by applying the adjustment coefficient of 1.3327 to that quantity, Comafrica was entitled to submit an application for licences
in respect of [...] tonnes;

:

–
: by applying the adjustment coefficient of 1.07883 laid down by Regulation No 1121/2001 to the abovementioned quantity of [...]
tonnes, Comafrica was entitled to submit an application for licences in respect of [...] tonnes only;

:

–
: the average of the imports made by Dole during the reference period was [...] tonnes;

:

–
: by applying the adjustment coefficient of 1.3327 to that quantity, Dole was entitled to submit an application for licences
in respect of [...] tonnes;

:

–
: by applying the adjustment coefficient of 1.07883 laid down by Regulation No 1121/2001 to the abovementioned quantity of [...]
tonnes, Dole was entitled to submit an application for licences in respect of [...] tonnes only.

125
:

126
:

127
:

128
:

129
:

130
:

131
:

132
:

133
:

134
:

135
:

:

–
: the Hellenic Republic and the Republic of Finland provided overall figures on primary imports without breaking them down by
operator;

:

–
: the Republic of Austria provided details on the overall level of imports only;

:

–
: the other Member States, with the exception of the Italian Republic, replied that data provided by their operators for 1997
were never verified by the competent authorities, while the 1998 data were never collected;

:

–
: no data for 1997 were available for the Portuguese Republic;

:

–
: only the Italian Republic was able to provide data, albeit incomplete, for 1997 and 1998, pointing out that this was a simple
transmission of raw data by the Italian operators which had not been verified by the relevant authorities.

136
:

137
:

138
:

139
:

140
:

141
:

142
:

143
:

144
:

145
:

146
:

147
:

148
:

149
:

150
:

151
:

152
:

153
:

154
:

155
:

156
:

157
:

158
:

159
:

160
:

161
:

162
:

163
:

164
:

165
:

166
:

167
:

168
:

169
:

:

–
: to confirm that the four operators referred to in Annex 7 to the application include the applicants;

:

–
: to provide information on the use of import licences in the years 1994 to 1996, on the figures for the imports in fact made
and on the method by which it arrived at its own estimate of the level of overclaims.

170
:

171
:

172
:

173
:

174
:

175
:

:

:

1.
: Dismisses as inadmissible the claim for annulment;

:

2.
: Dismisses as unfounded the claim for compensation;

:

3.
: Orders the applicants to bear their own costs and those incurred by the Commission in the main proceedings and in the interim
proceedings;

:

4.
: Orders the intervening parties to bear their own costs.

---

1 –
: Language of the case: English.

---

2 –
: Confidential data omitted.