Judgment — ECLI:EU:T:2004:37
Date: 2004-02-10
Language of the case: German
Court formation: Fifth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;External relations;Fruit and vegetables;Commercial policy;Principles, objectives and tasks of the Treaties;Bananas
Concepts: Basis of liability;Bananas;Procedures
Procedure: Action for damages - unfounded
Origin: Germany

Summary of the Judgment 
1. Non-contractual liability — Conditions — Sufficiently serious breach of a superior 
rule of laiv for the protection of individuals — No discretion for institution — Mere 
infringement of Community law sufficient 
(Art. 288, second para., EC) 
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SUMMARY — JOINED CASES T-64/01 AND T-65/01 
2. Agriculture — Common organisation of the markets — Bananas — Import arrange­
ments — Tariff quota — Opening and allocation of the quota — Transitional 
measures as a result of the accession of Austria, Finland and Sweden — Regulation 
No 1924/95 — Application only within the context of the arrangement established by 
Regulation No 1442/93 — Application until abolition of the latter regulation 
(Council Regulation No 404/93; Commission Regulations Nos 1442/93, 1924/95, 
Art. 6, and 2362/98) 
3. Agriculture — Common organisation of the markets — Bananas — Import arrange­
ments — Tariff quota — Opening and allocation of the quota — Allocation of rights 
to import licences — Determination of criteria — Principle of the protection of 
legitimate expectations — Infringement — None 
(Council Regulation No 404/93; Commission Regulation No 1442/93) 
4. Agriculture — Common organisation of the markets — Bananas — Import arrange­
ments — Tariff quota — Opening and allocation of the quota — Regulation 
No 2362/98 — Taking into account of imports actually carried out during a reference 
period prior to its publication — Infringement of the principle of legal certainty — 
None 
(Commission Regulations Nos 1442/93 and 2362/98) 
5. Agriculture — Common organisation of the markets — Bananas — Import arrange­
ments — Tariff quota — Regulations — Procedure by which they are drawn up — 
Distinction between basic regulations and implementing regulations — Powers 
conferred by the Council on the Commission in general terms — Lawfulness 
(EC Treaty, Art. 155, fourth indent (now Art. 211, fourth indent, EC); Council 
Regulation No 404/93, Art. 19(1)) 
6. Non-contractual liability — Conditions — Lawful act — Real damage, causal link 
and unusual and special damage — Cumulative nature 
(Art. 288, second para., EC) 
1. 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 conduct alleged 
against the Community institutions 
must be unlawful, the damage must 
be real and there must be a causal link 
between that conduct and the damage 
complained of. 
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AFRIKANISCHE FRUCHT-COMPAGNIE AND INTERNATIONALE FRUCHTIMPORTGESELLSCHAFT 
WEICHERT v COUNCIL AND COMMISSION 
As regards the first of those conditions, 
it must be shown that there has been a 
sufficiently serious breach of a rule of 
law intended to confer rights on indi­
viduals. 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 
gravely disregarded the limits on its 
discretion. Where that institution has 
only a considerably reduced, or even 
no, discretion, the mere infringement 
of Community law may be sufficient to 
establish the existence of a sufficiently 
serious breach. 
(see paras 70, 71) 
2. Article 6 of Regulation No 1924/95 
laying down transitional measures for 
the application of the tariff quota 
arrangements for imports of bananas 
as a result of the accession of Austria, 
Finland and Sweden, which established 
the manner in which the rights of all 
operators who supplied those new 
Member States for the whole of 1995 
were to be fixed at the time of the 
determination of reference quantities in 
respect of any period including 1995, 
could apply only within the context of 
the 1993 arrangement established by 
Regulation No 1442/93 laying down 
detailed rules for the application of the 
arrangements for importing bananas 
into the Community, to which that 
provision referred, and only during the 
period when it was in force, that is, 
until 31 December 1998. That is sup­
ported, in particular, by the purpose of 
said Article 6, which was to ensure 
that, when the transitional measures 
adopted following the accession of the 
new Member States ceased to apply, 
the reference quantities for all oper­
ators, including those who had sup­
plied those States in 1995, would be 
determined precisely in accordance 
with the same criteria. That purpose 
became meaningless once the 1993 
regime had been abolished and 
replaced, as from 1 January 1999, by 
a new regime established by Regulation 
No 2362/98 laying down detailed rules 
for the implementation of Regulation 
No 404/93 regarding imports of 
bananas into the Community. 
(see paras 79, 80) 
3. Since the Community institutions enjoy 
a margin of discretion in the choice of 
the means needed to implement their 
policy, economic operators cannot 
claim to have a legitimate expectation 
that an existing situation which is 
capable of being altered by decisions 
taken by those institutions within the 
limits of their discretionary power will 
be maintained. This is particularly true 
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SUMMARY — JOINED CASES T-64/01 AND T-65/01 
in an area such as the common organi­
sation of markets, which involves con­
stant adjustments to meet changes in 
the economic situation. 
Since the determination of the criteria 
governing the allocation of rights to 
licences is one of the choices as to the 
appropriate means for implementing 
the policy of Community institutions 
with regard to the common organi­
sation of the market in bananas, those 
institutions have discretion in the 
matter. Consequently, economic oper­
ators have no grounds for a legitimate 
expectation that the allocation criteria 
adopted under the former Community 
regime would be maintained for the 
purpose of determining their reference 
quantity. 
(see paras 83, 84) 
4. Although the principle of legal cer­
tainty precludes the temporal scope of 
a Community act from commencing at 
a date before its publication, it does not 
preclude that act from taking into 
account, for the purpose of implement­
ing a regime applicable after its pub­
lication, certain facts which predate its 
publication. 
In the common organisation of the 
markets in bananas, Regulation 
No 2362/98 laying down detailed rules 
for the implementation of Regulation 
No 404/93 regarding imports of 
bananas into the Community, which 
had been published in the Official 
Journal of the European Communities 
on 31 October 1998 and was aimed at 
introducing a new arrangement for 
imports of bananas into the Commu­
nity as from 1 January 1999, applied 
only to imports of bananas which 
would be carried out as from that date. 
The fact that that regulation took into 
account, for the purposes of determin­
ing the reference quantity to be 
attributed to operators under the 1999 
regime established by the same regu­
lation, imports 'actually' carried out 
during an earlier reference period and 
laid down certain rules for proving that 
those imports had in fact been carried 
out had no effect on a situation estab­
lished before the publication of that 
regulation and, in particular, had no 
effect on the reference quantities deter­
mined under the former 1993 regime 
established by Regulation No 1442/93. 
(see paras 90, 91) 
5. Under the fourth indent of Article 155 
of the Treaty (now the fourth indent of 
Article 211 EC), the Commission, with 
a view to ensuring the proper function­
ing and development of the common 
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AFRIKANISCHE FRUCHT-COMPAGNIE AND INTERNATIONALE FRUCHTLMPORTGESELLSCHAET 
WEICHERT v COUNCIL AND COMMISSION 
market, is to exercise the powers con­
ferred on it by the Council for the 
implementation of the rules laid down 
by the latter. It is clear from the Treaty 
context in which that article must be 
placed and also from practical require­
ments that the concept of implemen­
tation must be given a wide interpre­
tation. Since only the Commission is in 
a position to keep track of agricultural 
market trends and to act quickly when 
necessary, the Council may confer on it 
wide powers in that sphere. Con­
sequently, the limits of those powers 
must be determined by reference 
amongst other things to the essential 
general aims of the market organi­
sation. Thus, in matters relating to 
agriculture, the Commission is auth­
orised to adopt all the implementing 
measures which are necessary or 
appropriate for the implementation of 
the basic legislation, provided that they 
are not contrary to such legislation oi­
to the implemen t ing legis la t ion 
adopted by the Council. 
Moreover, a distinction must be drawn 
between rules which, since they are 
essential to the subject-matter envis­
aged, must be reserved to the Council's 
power, and those which, being merely 
of an implementing nature, may be 
delegated to the Commission. Only 
those provisions which are intended 
to give concrete shape to the funda­
mental guidelines of Community policy 
can be classified as essential. A provi­
sion drafted in general terms provides a 
sufficient basis for the authority to act. 
Since the Council has laid down in a 
basic regulation the essential rules 
governing the matter in question, it 
may delegate to the Commission gen­
eral implementing power without hav­
ing to specify the essential components 
of the delegated power. 
In the common organisation of the 
markets in bananas, Article 19(1) of 
Regulation No 404/93 on the common 
organisation of the market in bananas, 
as amended by Regulation No 1637/98, 
which empowers the Commission to 
adopt the rules for the management of 
the tariff quotas and imports of tradi­
tional ACP bananas, complies with the 
principles referred to above. In par­
ticular, by there providing that 'the 
tariff quotas indicated in Article 18(1) 
and (2) and imports of traditional ACP 
bananas shall be managed in accord­
ance with the method based on taking 
account of traditional trade flows 
(traditionals/newcomers)', the Council 
adequately described the essential 
elements of the implementing power 
conferred on the Commission. 
(see paras 118-120) 
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SUMMARY — JOINED CASES T-64/01 AND T-65/01 
6. In the event of the principle of non­
contractual liability as a result of a 
lawful act being recognised in Com­
munity law, a precondition for such 
liability would in any event be the 
cumulative satisfaction of three con­
ditions: the reality of the damage 
allegedly suffered, the causal link 
between it and the act on the part of 
the Community institutions, and the 
unusual and special nature of that 
damage. Damage is 'special' when it 
affects a particular class of economic 
operators in a disproportionate manner 
by comparison with other operators, 
and 'unusual' when it exceeds the 
limits of the economic risks inherent 
in operating in the sector concerned, 
the legislative measure that gave rise to 
the damage pleaded not being justified 
by a general economic interest. 
(see paras 150, 151) 
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