Opinion of the Advocate General — ECLI:EU:C:2006:536
Date: 2006-09-07
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Processed fruit and vegetables;Non-contractual liability
Procedure: Action for damages;Appeal - successful
Origin: Spain;France;Greece;Italy;Portugal

summary of the complex organisation set up by the Community in this sector. That organisation is based on a protective mechanism and a system of dual contracts. The protective mechanism is provided for in the basic regulation. It provides that a minimum price to be paid to tomato producers is to be fixed before the beginning of each marketing year, which is normally in the month of July. At the same time, aid is granted to tomato processors who have paid the producers a price that is at least equal to the minimum price. The amount of that price is fixed in such a way that it makes it possible to ‘compensate for the difference between the prices paid to producers in the Community and prices paid in third countries’. (26) That mechanism is contained in the system of contracts provided for in Commission Regulation (EC) No 504/97 of 19 March 1997 laying down detailed rules for the application of Regulation No 2201/96. (27) Under that system, ‘preliminary’ contracts are concluded between tomato processors and tomato producers even before the planting period. The purpose of the system is ‘to encourage producers to take account of the real needs of the processing industry and to adjust their areas planted in consequence’. (28) It is important to note that such contracts relate to quantities without indicating the price to be paid. (29) It is only after the minimum price and the production aid have been fixed that ‘processing’ contracts including the price to be paid are signed on the basis of the earlier contracts. (30) 39. This brief description shows that disposal of Community production relies mainly on the confidence placed by processors in the proper application of the aid mechanisms laid down by the Community. Processors are encouraged, under the system of preliminary contracts, to undertake to dispose of Community production in consideration for aid even before they know the amount of the minimum price and the amount of aid. At the time of making that undertaking, of course, there is no guarantee that the aid will cover all the commercial risks inherent in the operation of purchasing tomatoes in the Community. However, processors must at least have some assurance that the aid will be fixed under lawful conditions, in accordance with the criteria laid down in Article 4(2) of the basic regulation. By applying the system of aid unlawfully, the Commission contributed to reimposing on the appellants some of the economic risk which they should not have been exposed to by virtue of the system introduced by the Community. 40. That is why it seems to me that the defendant is wrong to rely on compliance with an objective which the appellants are required to meet with the guarantee that they will receive aid if the basic regulation is properly applied. The Commission cannot rely on a result which it has itself placed in jeopardy through improper application of the criteria imposed on it in order to reach it, a result which in any event it could not predict at the time the unlawful conduct complained of was engaged in. This objection is therefore totally unfounded. III – Outcome of the analysis 41. The appellants’ first plea should be declared well founded, and hence the judgment under appeal should be set aside in part. Since the other pleas are directed against the same part of the judgment under appeal, it is not necessary to consider them. 42. Under the first paragraph of Article 61 of the Statute of the Court of Justice, if the appeal is well founded, the Court of Justice is to quash the decision of the Court of First Instance. It may then itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the Court of First Instance for judgment. 43. As the Court of First Instance did not have the opportunity to assess whether the third condition for the Community to incur liability, the causal link between the unlawful conduct complained of and the reality of the damage, was met, or to rule on the exact nature and extent of the damage suffered by the appellants, the proceedings are not in a state to permit judgment. It is necessary for the Court of First Instance to have sovereign jurisdiction in order to carry out these investigations, which involve complex assessments of facts and data, and to give judgment, if appropriate, on whether the parties should be invited to seek agreement on the amount of compensation for the damage caused. The case should therefore be referred back to the Court of First Instance and the costs reserved. IV – Conclusion 44. It is clear from all the above considerations that the Court of First Instance erred in law in ruling that the alleged damage was not certain. I therefore propose that the Court of Justice should: – set aside the judgment of the Court of First Instance of the European Communities of 17 March 2005 in Case T-285/03 Agraz and Others v Commission, and – refer the case back to the Court of First Instance. 1 – Original language: Portuguese. 2 – See, in particular, Joined Cases 256/80, 257/80, 265/80, 267/80 and 5/81 Birra Wührer and Others v Council and Commission [1982] ECR 85, paragraph 9, and Case T-99/98 Hameico Stuttgart and Others v Council and Commission [2003] ECR II-2195, paragraph 67. 3 – See to that effect Case 26-74 Roquette frères v Commission [1976] ECR 677, paragraph 22. 4 – See, in the context of the ECSC Treaty, Case 10/55 Mirossevich v High Authority [1954-56] ECR 333 and Case 23/59 FERAM v High Authority [1959] ECR 245; in the context of the EC Treaty, Joined Cases 5/66, 7/66 and 13/66 to 24/66 Kampffmeyer and Others v Commission [1967] ECR 245 and Joined Cases 56/74 to 60/74 Kampffmeyer and Others v Commissionand Council [1976] ECR 711, paragraph 6. 5 – See, in particular, Joined Cases 197/80 to 200/80, 243/80, 245/80 and 247/80 Ludwigshafener Walzmühle and Others v Council and Commission [1981] ECR 3211, paragraph 51, and Case T-7/96 Perillo v Commission [1997] ECR II-1061, paragraphs 41 to 46. 6 – In Case 27/76 United Brands v Commission [1978] ECR 207, paragraph 286, the Court held in that regard, in the case of a complaint that the Commission’s approach in the conduct of competition proceedings was biased, that ‘there is nothing on the Court’s file to justify the presumption that the contested decision would not have been adopted or would have been different had it not been for these disputed statements which are in themselves regrettable’. 7 – See in particular Case T-13/96 TEAM v Commission [1998] ECR II-4073, paragraph 76; Case T-231/97 New Europe Consulting and Brown v Commission [1999] ECR II-2403, paragraph 51; Case T-160/03 AFCon Management Consultants and Others v Commission [2005] ECR II‑981, paragraph 112; and Case T-309/03 Camós Grau v Commission [2006] ECR II-0000, paragraph 149. 8 – See, in particular, Case 74/74 CNTA v Commission [1975] ECR 533, paragraphs 21 and 42. 9 – See to that effect Case 238/78 Ireks-Arkady v Council and Commission [1979] ECR 2955, paragraph 11, and Case 59/83 Biovilac v European Economic Community [1984] ECR 4057, paragraph 28. 10 – Case 175/84 Krohn v Commission [1986] ECR 753, paragraph 27. 11 – See Case C-312/00 P Commission v Camar and Tico [2002] ECR I-11355, paragraph 54. 12 – See, to that effect, Case C-198/03 P Commission v CEVA and Pfizer [2005] ECR I-6357, paragraph 66. 13 – See, for comparison with the judgment under appeal, Case T-167/94 Nölle v Council and Commission [1995] ECR II-2589, paragraph 89. 14 – See point 31 of this Opinion. 15 – Case 281/84 Zuckerfabrik Bedburg and Others v Council and Commission [1987] ECR 49, paragraph 14. 16 – See to that effect Case C-30/91 P Lestelle v Commission [1992] ECR I-3755, paragraph 28. 17 – Joined Cases 67/75 to 85/75 [1976] ECR 391. 18 – Paragraph 20. 19 – Paragraphs 26 and 27. 20 – Paragraph 19. 21 – Second recital in the preamble to the basic regulation. 22 – Fourth recital in the preamble to the basic regulation. 23 – Emphasis added. 24 – The Court of First Instance notes in paragraph 67 of the judgment under appeal that the Commission accepts that if the price of the Chinese raw material had been taken into account that might initially have led to an appreciable reduction in the estimated price of the raw material in the main producing and exporting third countries. 25 – See to that effect Case C-401/96 P Somaco v Commission [1998] ECR I-2587, paragraph 71. 26 – Fourth recital in the preamble to the basic regulation. 27 – OJ 1997 L 78, p. 14. 28 – Seventh recital in the preamble to Regulation No 504/97. 29 – Article 6(2) of Regulation No 504/97. 30 – Article 7 of Regulation No 504/97.