Judgment — ECLI:EU:T:2001:97
Date: 2001-03-20
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;Bananas
Concepts: GATT and WTO;General;Basis of liability;Bananas
Procedure: Action for damages - unfounded
Origin: Germany

Summary of the Judgment 
1. Actions for damages — Subject-matter — Request for compensation for damage 
attributable to the Community — Exclusive jurisdiction of the Community judicature 
(EC Treaty, Art. 215, second para, (now Art. 288, second para., EC)) 
2. Non-contractual liability — Conditions — Infringement of a rule of law intended to 
confer rights on individuals — Not possible to rely on the GATT rules to contest the 
laivfulness of a Community act or as grounds for an action for damages — 
Exceptions — Community measure intended to implement a GATT rule or expressly 
and specifically referring thereto 
(EC Treaty, Art. 215, second para, (now Art. 288, second para., EC)) 
II - 981 
SUMMARY — CASE T-52/99 
3. Agriculture — Common organisation of markets — Bananas •— Import arrange­
ments — Tariff quota — Opening and allocation of the quota — Different treat­
ment of operators established in Austria, Finland and Sweden — Discrimination — 
None 
(Council Regulation No 404/93; Commission Regulation No 2362/98, Art. 5(3) and 
(4)) 
4. Agriculture — Common organisation of the markets — Bananas — Import arrange­
ments — Tariff quota — Opening and allocation of the quota •— Allocation of 
import licences — Definition of an importer — Determination of criteria — Prin­
ciple of the protection of legitimate expectations — Infringement — None 
(Council Regulation No 404/93; Commission Regulation No 2362/98) 
1. Where, in the context of an action for 
damages, the unlawful conduct is not 
that of a national body but that of a 
Community institution, any loss arising 
from the implementation of the Com­
munity legislation by the national 
authorities is attributable to the Com­
munity. Since the Community judica­
ture has exclusive jurisdiction under 
Article 215 of the Treaty (now Art­
icle 288 EC) to hear actions seeking 
compensation for such damage, rem­
edies available under national law 
cannot ensure effective protection of 
the rights of individuals aggrieved by 
measures of Community institutions. 
(see paras 26-27) 
2. In the context of the Community's non­
contractual liability, a right to repar­
ation arises only where the rule of law 
infringed is intended to confer rights on 
individuals. That is not the case for the 
WTO agreements. Given their nature 
and structure, those agreements are not 
in principle among the rules in the light 
of which the Community judicature is 
to review the legality of measures 
adopted by the Community institu­
tions. It is only where the Community 
intends to implement a particular obli­
gation assumed in the context of the 
WTO, or where the Community meas­
ure refers expressly to the precise 
provisions of the agreements contained 
in the annexes to the WTO Agreement, 
that it is for the Court of Justice and 
the Court of First Instance to review 
the legality of the Community measure 
in question in the light of the WTO 
rules. 
(see paras 45-46, 50-51, 58) 
3. The principle of non-discrimination 
requires that comparable situations 
II - 982 
T. PORT v COMMISSION 
should not be treated in a different 
manner unless the difference in treat­
ment is objectively justified. In this 
connection, different treatment may 
not be regarded as discrimination pro­
hibited by Article 40(3) of the Treaty 
(now, after amendment, Article 34(2) 
EC) unless it appears to be arbitrary, or 
in other words, devoid of adequate 
justification and not based on objective 
criteria. 
The Commission did not infringe the 
principle of non-discrimination by 
treating, in the context of the common 
organisation of the market in bananas, 
operators established in Austria, Fin­
land and Sweden differently from trad­
itional operators as regards activities in 
those countries during 1994. At that 
time, those States were not yet subject 
to the common organisation of the 
market in bananas, so that special 
arrangements were necessary in order 
to enable imports by operators estab­
lished in those countries in 1994 to be 
taken into account in determining their 
reference quantity. 
(see paras 81-83) 
4. 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 
in an area such as the common or­
ganisation of markets, which involves 
constant adjustments to meet changes 
in the economic situation. 
Since determination of the criteria 
which, pursuant to Regulation 
No 2362/98 laying down detailed rules 
for the implementation of Regulation 
No 404/93, are to be taken into 
account in order to recognise an eco­
nomic operator as an importer for the 
purposes of allocating import licences 
for bananas is one of the choices as to 
the appropriate means for implement­
ing the policy of Community institu­
tions with regard to the common 
organisation 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 criteria adopted 
under the former Community arrange­
ments will be maintained. 
(see paras 99-101) 
II - 983