Opinion of the Advocate General — ECLI:EU:C:2002:716
Date: 2002-11-28
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Dumping;External relations;Commercial policy
Procedure: Appeal - unfounded;Action for damages
Origin: Norway;Provisional data

Summary of the Judgment 
1. Non-contractual liability — Conditions — Sufficiently serious breach of Community 
law — Discretion available to an institution when adopting measures 
(EC Treaty, Art. 215, second para, (now Art. 288, second para., EC)) 
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SUMMARY — CASE C-472/00 P 
2. Non-contractual liability — Sufficiently serious breach of Community law — 
Imposition of provisional anti-dumping and countervailing duties on the exports of a 
company which has entered into undertakings with respect to the minimum price of 
exports — Imposition despite the existence of a report of the company concerned 
indicating that the undertakings entered into have been complied with but which has 
been unilaterally amended by the Commission without prior consultation of that 
company — Community liability incurred 
(EC Treaty, Art. 215, second para, (now Art. 288, second para., EC)) 
3. Appeals — Grounds of appeal — Incorrect assessment of the facts — Inadmiss­
ible — Review by the Court of justice of assessment of evidence — Excluded unless 
the clear sense of the evidence has been distorted 
(Art. 225 EC; Rules of Procedure of the Court of Justice, Art. 58) 
1. Community law confers a right to 
reparation where three conditions are 
met: the rule of law infringed must be 
intended to confer rights on individ­
uals; 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. As regards the second 
condition, the decisive test for finding 
that a breach of Community law is 
sufficiently serious is whether the Com­
munity institution concerned mani­
festly and gravely disregarded the 
limits on its discretion. Where that 
institution has only considerably 
reduced, or even no, discretion, the 
mere infringement of Community law 
may be sufficient to establish the exist­
ence of a sufficiently serious breach. It 
follows that the determining factor in 
deciding 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 adopting it. 
(see paras 25-27) 
2. Article 8(10) of Regulation No 384/96 
on protection against dumped imports 
from countries not members of the 
E u r o p e a n C o m m u n i t y a n d 
Art ic le 13(10) of Regu la t ion 
No 2026/97 on protection against 
subsidised imports from countries not 
members of the European Community, 
while granting the Commission the 
power to impose provisional anti­
dumping and countervailing duties on 
products exported to the Community 
by a company established in a non-
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COMMISSION v FRESH MARINE 
Member State, require at the same time 
that there be reason to believe that the 
undertaking to comply with a mini­
mum price has been breached and that 
the decision imposing such duties be 
taken on the basis of the best infor­
mation available. The Commission 
thus adopts conduct which must be 
regarded as a sufficiently serious 
breach of a rule of Community law 
satisfying one of the conditions for the 
incurring of non-contractual liability 
by the Community where it imposes 
such duties, relying solely on the 
analysis of a report drawn up by the 
exporting company concerned which 
gave reason to believe that that com­
pany had complied with its undertak­
ing not to make sales below a mini­
mum average price, but which the 
Commission had amended on its own 
initiative, without asking the company 
what impact its unilateral action might 
have on the reliability of the infor­
mation which that company had pro­
vided to it. 
(see paras 29-31) 
3. Under Article 225 EC and Article 58 of 
the Statute of the Court of Justice, an 
appeal lies on a point of law only. It 
follows that, save where the clear sense 
of the evidence has been distorted, the 
Court has no jurisdiction to review the 
assessment of the facts made by the 
Court of First Instance. 
(see para. 45) 
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