Judgment — ECLI:EU:T:2001:36
Date: 2001-02-01
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;General Agreement on Tariffs and Trade (GATT);Commercial policy;Bananas
Concepts: Causal link
Procedure: Action for damages - unfounded
Origin: Germany

summary of the pleas in law on which the application is based. 37. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary, without any further information. In order to guarantee legal certainty and sound administration of justice it is necessary, in order for an action to be admissible, for the basic legal and factual particulars relied on to be indicated, at least in summary form, coherently and intelligibly in the application itself (order in Case T-85/92 De Hoe v Commission [1993] ECR II-523, paragraph 20, and judgment in Case T-113/96 Dubois et Fils v Council and Commission [1998] ECR II-125, paragraph 29). 38. In order to satisfy those requirements, an application seeking compensation for damage allegedly caused by a Community institution must state the evidence from which the conduct which the applicant alleges against the institution can be identified, the reasons for which the applicant considers that there is a causal link between the conduct and the damage it claims to have suffered, and the nature and extent of that damage (Dubois et Fils, paragraph 30). 39. In the present case, the application makes it quite clear that T. Port complains that the Commission adopted Article 3(2) of Regulation No 478/95, which has been declared invalid by the Court of Justice. Furthermore, the application plainly states that the applicant suffered loss inasmuch as, between 1996 and 1998, it paid the sum of DEM 828 337.10 in order to buy export licences in Costa Rica and also the sum of DEM 126 356.80 by way of bank interest on the sums drawn, for the purposes of those purchases, on a line of credit made available by its bank. Finally, the application states that T. Port purchased those licences because it was obliged to take delivery of bananas under the contracts it had concluded with Costa Rican producers and, according to Article 3(2), for the category of operators to which the applicant belonged, production of those licences was a pre-condition for the issue by the Community of licences to import bananas from that country. 40. The applicant has, accordingly, given a sufficient description of the nature and extent of the alleged damage and of the reasons for which it considers there to be a causal link between the unlawful conduct which it alleges against the Commission and that damage. The objections raised by the Commission against the evidence adduced by the applicant relate to assessment of the merits of the application and must, therefore, be considered under that head. Moreover, at the hearing the Commission stated that the arguments it put forward in support of its objection of inadmissibility also referred to the substance of the case. 41. It follows that the application satisfies the formal requirements of Article 19 of the EC Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure and that it must be declared to be admissible. Substance 42. The Community's non-contractual liability under the second paragraph of Article 215 of the EC Treaty (now the second paragraph of Article 288 EC) depends on the coincidence of a set of conditions as regards the unlawfulness of the acts alleged against the Community institution, the fact of damage and a causal link between the conduct of the institution and the wrongful act complained of (Joined Cases C-258/90 and C-259/90 Pesquerias De Bermeo et Naviera Laida v Commission [1992] ECR I-2901, paragraph 42, and Case T-168/94 Blackspur and Others v Council and Commission [1995] ECR II-2627, paragraph 38). 43. In the present case, the conditions relating to actual damage and to a causal link may appropriately be considered together. Arguments of the parties 44. In the first place, the applicant maintains that the loss it has suffered corresponds to the price it paid in order to purchase licences to export bananas from Costa Rica between 1996 and 1998, namely, DEM 828 337.10. 45. In its submission, the certified statement of its auditor - Annex No 2 to the application - is sufficient evidence of the actual fact of such loss. The certified statements of the same auditor annexed to the reply demonstrate that it did in fact import bananas from Costa Rica into the Community. For the rest, it serves no useful purpose to know the essential terms of the delivery contracts concerned. 46. Furthermore, the applicant notes that the increase in tariff quota had repercussions on the Community banana market in general, reflected in a fairly uniform market price, but that it, unlike traders in bananas from third countries not parties to the Framework Agreement, had to bear the costs of purchasing export licences. It points out that the table produced by the Commission in its pleadings shows that the divergence between the average cif (cost, insurance, freight) price for Ecuador and the price for Costa Rica widened in 1996 and 1997, and maintains that that was a result of the increase in the price of bananas due to the requirement to purchase export licences in Costa Rica but not in Ecuador. 47. Lastly, the applicant submits that the Commission cannot be allowed to establish in this action that the export licence system is necessary since the Court of Justice, in Germany v Council and T. Port, has without possibility of appeal already declared that such has not been proved to be the case. 48. In the second place, the applicant claims that the damage alleged corresponds to the bank interest it paid for the use of a line of credit made available to it by its bank so that it could purchase the export licences in question. The damage, amounting to DEM 126 356.80, is proved by the certified statement of its auditor of 21 December 1998 and by the letter from its bank of 28 December 1998. 49. As regards the causal link between the allegedly unlawful conduct of the Commission, namely its unlawful adoption of Article 3(2) of Regulation No 478/95, and the damage alleged, the applicant states that in order to honour its contracts with Costa Rican producers for the delivery of bananas and to market the goods in the Community it was obliged to purchase export licences and to incur those expenses. 50. The Commission submits that the applicant has not adduced sufficient evidence of the existence and extent of the damage alleged or of a causal link between the allegedly unlawful conduct and that damage. 51. It argues that the auditor's certified statement in Annex 2 to the application is not conclusive, since it merely sets out total sums in the abstract. It points out in particular that the applicant gives no details of its contracts for the delivery of bananas, of the quantities of bananas intended for the Community market, the circumstances in which the bananas were imported, the date on which the export licence system was set up in Costa Rica, the costs involved in that system or the number of export licences purchased. 52. The Commission also states that it has not been established that the applicant did actually import bananas from Costa Rica into the Community and observes that it is not impossible that some of the export licences might have been transferred to other operators. The auditor's certified statements concerning import duties paid by the applicant between 1995 and 1998, which are annexed to the reply, are irrelevant since they do not mention the quantities of bananas imported into the Community by the applicant. 53. Moreover, the Commission notes that the increase in tariff quota and the reduction in customs duties agreed under the Framework Agreement largely set off the disadvantage for operators in Categories A and C of having to obtain export licences. Those last two measures have made it easier to import third-country bananas into the Community, to the detriment of Community and traditional ACP bananas. On the one hand, the increase in tariff quota has led to growth in overall supply and, consequently, exerted downward pressure on market prices. That drop in prices has principally affected Community and traditional ACP bananas which are, for various reasons, the dearest on the Community market. On the other hand, the reduction in customs duty for third-country bananas imported within the tariff quota has appreciably diminished the levelling off of prices. Moreover, the Commission annexes to its defence a table from which it would appear that the average cif prices paid from 1994 to 1997 for bananas imported into the Community were the same, whether the bananas came from Colombia, Costa Rica or Nicaragua or from other Latin American States such as Ecuador. 54. Finally, the Commission claims that it is not impossible that the applicant may have passed on to the end customer the costs of purchasing the export licences. Findings of the Court 55. According to settled case-law, it is for the party seeking to establish the Community's liability to adduce conclusive proof as to the existence or extent of the damage he alleges (Case C-362/95 P Blackspur and Others v Council and Commission [1997] ECR I-4775, paragraph 31, and Case T-537/93 Tromeur v Council and Commission [2000] ECR II-2457, paragraph 36). 56. In this instance, the damage alleged has two components. First, it consists of the costs of the applicant's purchase of licences to export bananas from Costa Rica. Second, it consists of the bank interest paid on the sums drawn on a line of credit made available to the applicant by its bank. 57. With regard to the first head of damage, the applicant has produced a certified statement of its auditor in which the latter declares that from 1996 to 1998, [it] disbursed DEM 828 337.10 on purchasing export licences for bananas from Costa Rica. It is clear from its pleadings and from what it said at the hearing that in the applicant's view the expenditure mentioned in that certified statement in itself constitutes the loss it has suffered and that there is no point in considering what effect that expenditure actually had on the profitability of the corresponding commercial transactions. The applicant submits that it is not, therefore, incumbent on it to supply any further particulars or evidence. 58. That approach cannot be accepted, for several reasons. 59. In the first place, there is nothing in the certified statement referred to which makes it possible to determine whether the sum really corresponds to the cost of purchasing export licences. 60. In the second place, even on the assumption that that sum is unarguably genuine, it has by no means been established that the applicant itself actually used all the export licences corresponding to that sum in order to import bananas into the Community. That evidence is indispensable since, as the Commission has pointed out and the applicant has not denied, the export licences held by one operator could, in practice, be sold to another operator, or indeed be exchanged for import licences. 61. The two certified statements of the auditor, annexed to the reply, are not in this regard conclusive. They simply state that in 1996, 1997 and 1998 respectively the applicant paid DEM 767 225.38, DEM 489 029.36 and DEM 1 419.11 by way of import duties on imports of bananas from Costa Rica. In the absence of any information regarding the quantities of bananas to which those total amounts relate, or the quantities to which the abovementioned amount of DEM 828 337.10 relates, or the parameters used by the auditor in arriving at those sums, it cannot be established with the requisite certainty that the quantities of bananas imported from Costa Rica into the Community by the applicant between 1996 and 1998 correspond to the quantities of bananas in respect of which it purchased export licences in that country. In addition, and in any event, the possibility remains that some of the import duty paid by the applicant relates to bananas imported into the Community under Category B import licences which did not require the production of an export licence. It may be noted in this connection that it is stated in one of the certified statements referred to above that the applicant purchased additional licences for imports of bananas from Costa Rica, without specifying the category to which the licences related. 62. The applicant ought to have taken all the greater care to communicate information on those various points because, both in its defence and in its rejoinder, the Commission expressly drew the applicant's attention to the fact that such information was essential if the existence and extent of the damage alleged were to be established. Notwithstanding those observations, the applicant - as it acknowledged at the hearing in response to a question put by the Court of First Instance - has deliberately chosen not to supply the information. 63. In the third place, even if the applicant did use on its own account all the export licences it had acquired, its method of determining loss, which is to claim that the loss is equal to the expense incurred, cannot be accepted. 64. First, it is not inconceivable that, as the Commission has claimed, the cost of purchasing the export licences has been partly, or indeed wholly, passed on by the applicant in its sale prices. That suggestion is all the more plausible because the quantities of bananas the importation of which into the Community depended on the issuing of an export licence represented a substantial proportion of the tariff quota. 65. The applicant has not put forward anything to suggest that it was not possible to pass on the cost, nor has it even denied having done so in this case. It has merely objected that that argument was raised by the Commission for the first time at the hearing and cannot therefore be taken into consideration by the Court. That objection cannot be upheld, since the Commission expressly pointed out in its pleadings the need for information concerning the cost factors linked to the export licence regime and concerning the circumstances in which the bananas were imported. Since the applicant has deliberately chosen to adopt an especially restrictive approach with regard to the furnishing of evidence, it is not reasonable for it to complain that the Commission expressed some of its criticisms in greater detail at the hearing. 66. Second, the Commission's submission that the disadvantage constituted by the obligation on the part of Category A and C operators to acquire export licences was offset, at least in part, by the two other accompanying measures laid down in the Framework Agreement, namely the increase of 200 000 tonnes in tariff quota and the reduction of ECU 25 per tonne in the customs duty applicable to imports of third-country bananas within that quota, would not seem to be groundless. It is true that those measures benefited Category B operators too, since part of the tariff quota was reserved for them also. However, they benefited to a lesser extent only, since their share was limited to 30%, the other 70% being allocated to Category A and C operators. 67. It follows that the mere fact, assuming it to have been proved, that an operator has borne additional costs connected with its business dealings does not necessarily imply that it suffered a corresponding loss. In this instance, by deliberately confining itself to basing its application on the single fact that it had incurred certain costs, the applicant has therefore not adduced sufficient proof of having actually sustained loss. 68. With a view to establishing the existence and extent of the loss arising from payment of bank interest, the applicant has produced a letter from its bank and a certified statement of its auditor. 69. The letter from the bank states: ... we write to confirm that since 1 January 1996 we have granted lines of credit to your undertaking in order to finance its activity. For the various cash uses made of that line of credit we have charged you debit interest as follows: - from 1 January 1996 to 21 April 1996: 7.5% per annum - from 22 April 1996 to 18 May 1998: 7.0% per annum - since 19 May 1998: 6.75% per annum ... 70. In his certified statement the auditor states: ... our calculations show that the cost of payment of interest on the external financing of the expenses indicated in the document annexed hereto is as follows: Interest payable on the purchase of export licences: DEM 126 356.80 ... In order to calculate the interest on purchase of the export licences, we have taken as the date of cash use of the credits the date of the corresponding licence. ... 71. That evidence is not convincing. 72. On the one hand, the letter from the bank makes it clear that the line of credit was made available to the applicant to finance its activity generally. The applicant has not adduced any concrete evidence to demonstrate that it had recourse to that line of credit in order to purchase export licences in Costa Rica rather than to carry out any other transactions. On the contrary, the auditor's statement that, in order to calculate the interest, he adopted as the date of cash use of the credits the date of the corresponding [export] licence suggests that the line of credit was used to cover indeterminate expenditure as a whole. If the applicant had actually drawn sums on the line of credit in order to purchase export licences, the auditor would have calculated the interest payable on those sums by taking account, on each occasion, of the date on which they were drawn. 73. On the other hand, in order to enable the Commission and the Court to ascertain whether the sum claimed was justified, it was incumbent on the applicant, in addition to showing how the sums borrowed were used, to specify the exact amounts drawn, the reference period of each loan taken out and the successive interest rates charged. In this action, the applicant has done no more than indicate the various interest rates in force and the total amount of interest allegedly paid. 74. Finally, and in any event, the damage consisting of payment of bank interest is incidental in relation to the damage represented by the cost of purchasing the export licences. Since the latter damage has not been sufficiently proved (see paragraphs 59 to 67 above), the applicant cannot obtain compensation for the former. 75. It follows that, since the applicant has not sufficiently established the existence and extent of the alleged damage, the Community cannot incur non-contractual liability. 76. Furthermore, the applicant has not adduced evidence to show that there was any direct causal link between the unlawful conduct of which it accuses the Commission, namely the introduction of the export licence regime under Regulation No 478/95, and the damage it has allegedly sustained, as required by settled case-law (Case T-168/94 Blackspur and Others v Council and Commission [1995] ECR II-2627, paragraph 40, and Case T-231/97 New Europe Consulting and Brown v Commission [1999] ECR II-2403, paragraph 57). 77. In its application it claims that the infringement adversely affecting it is ... the cause of the loss for which [it] demands compensation. It explains that it was obliged to take delivery of goods from its producer in Costa Rica and that in order to obtain import licences for those bananas and to be able to market them in the Community, it had to prove the existence of corresponding export licences to the competent German authority when applying for the import licences. 78. It must be observed that the applicant has not, however, adduced any evidence to prove that there was any such obligation to supply, notwithstanding the fact that in its pleadings the Commission expressly emphasised that it was necessary to ascertain the extent of that obligation and also the other essential conditions resulting from the delivery contracts concluded with the Costa Rican producers. 79. What is more, indeed, the applicant has neither maintained nor, a fortiori, proved that it had concluded those contracts before Regulation No 478/95 was adopted. In its application it merely states that since 1995 it has had import contracts with Costa Rican banana producers. On being asked at the hearing to supply further details concerning that claim, it did no more than say, vaguely, that those contracts had been negotiated in 1995 and that the imports of bananas in question had begun during the following year. 80. The various items of information relating to those contracts are especially necessary since it is not inconceivable that the alleged damage was, wholly or partly, the consequence of a purely commercial decision taken by the applicant to conclude delivery contracts with Costa Rican producers rather than with producers of another third country which has not introduced an export licence regime. Accordingly, even if the presumption must be that the delivery contracts in question were concluded before Regulation No 478/95 was adopted - which would seem doubtful - it could have been established that no such decision was taken only if the applicant had set out the legal or factual reasons for which it could not have freed itself from those contractual commitments between 1995 and 1998. If it must be presumed - as seems to be the case here - that it concluded those contracts after the regulation was adopted, then it ought to have explained why it had been able to approach only Costa Rican producers. 81. It follows that in the circumstances of this case none of the conditions which are essential if the Community is to incur liability vis-à-vis the applicant has been satisfied. Accordingly, without there being any need to rule on the legality of the conduct for which the Commission is criticised, the action for damages must be dismissed as unfounded. Costs 82. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, as applied for by the Commission. On those grounds, THE COURT OF FIRST INSTANCE (Fifth Chamber) hereby: 1. Dismisses the application; 2. Orders the applicant to pay the costs. García-Valdecasas Lindh Cooke Delivered in open court in Luxembourg on 1 February 2001. H. Jung R. García-Valdecasas Registrar President 1: Language of the case: German. ECR