Opinion of the Advocate General — ECLI:EU:C:2003:478
Date: 2003-09-18
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Milk products;Non-contractual liability
Procedure: Appeal - unfounded;Appeal - inadmissible;Action for damages
Origin: Netherlands

summary of the ‘relevant facts’, but which in his opinion gives an incorrect and biased view of those facts which are actually relevant. He regards as established the fact that in autumn 1983 he re-sowed grass on his land that had been previously used for crops, in order to resume milk production. In that regard, he refers to the statement made under oath to that effect and submitted to the Court of First Instance. 107 Mr Bouma considers that, in view of the content of that statement and of the subsequent clarifications supplied by his lawyer it can only be inferred from paragraph 49 of the judgment under appeal that the Court of First Instance completely ignored the evidence he had adduced. 108 Mr Beusmans makes the same complaint as Mr Bouma with regard to paragraph 14 of the judgment under appeal. 109 He regards as established the fact that, on expiry of his non-marketing undertaking, he had converted to rearing dairy and beef cattle, that is to say, cows producing both milk and beef. He states that he had an adequate number of cows to resume milk production in full. It is also established that in summer 1983 he had arranged for his cows to calve and produce milk. In doing so he acted rationally from the economic point of view: at that time, not to use his cows for beef production would have amounted to pure destruction of capital. Mr Beusmans points in that regard to the statement under oath submitted to the Court of First Instance. In that statement he explained in particular that the cows cannot be used for milk production unless they calve again and that the calf is immediately taken away from the cow. 110 In their second complaint Mr Bouma and Mr Beusmans regard the assessment of the facts made by the Court of First Instance in paragraph 49 of Bouma and paragraph 48 of Beusmans that they had not formally applied for a reference quantity in 1984 as incomprehensible and incorrect. In their view, that allegation gives an incorrect idea and assessment of the facts. Findings of the Court 111 In their complaints, Mr Bouma and Mr Beusmans are in fact challenging the Court of First Instance’s assessment of the facts. The fifth plea relates only to the presentation of the facts in paragraph 14 et seq. of the judgments under appeal and the assessment of the facts and the statements made under oath which the Court of First Instance gave in paragraph 48 of Bouma and paragraph 47 of Beusmans, respectively. 112 However, under Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice an assessment of the facts does not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice in the context of an appeal (see in particular the order of 21 February 2002 in Joined Cases C-486/01 P-R and C‑488/01 P-R Front National and Jean-Claude Martinez v Parliament [2002] ECR I-1843, paragraphs 83 to 85). 113 The Court of Justice therefore has no jurisdiction to establish the facts or, in principle, to consider the evidence which the Court of First Instance accepted in support of those facts. Where the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it (see in particular the order of 17 September 1996 in Case C-19/95 P San Marco v Commission [1996] ECR I-4435, paragraph 40). 114 That assessment does not constitute, save where that evidence is distorted, a question of law which is subject, as such, to review by the Court of Justice (Case C-121/01 P O’Hannrachain v Parliament [2003] ECR I‑5539, paragraph 35). 115 As Mr Bouma and Mr Beusmans have not submitted any evidence to show that the Court of First Instance distorted the facts, the fifth plea must be rejected as inadmissible. 116 It follows from all the above considerations that the appeals must be dismissed. Costs 117 The first paragraph of Article 122 of the Rules of Procedure provides that where the appeal is unfounded the Court is to make a decision as to costs. Under Article 69(2) of those Rules, applicable to appeal proceedings under Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 118 Since the appeals have been dismissed, and the Council and the Commission applied for costs against the appellants and the latter have been unsuccessful, Mr Bouma and Mr Beusmans must be ordered to pay the costs. On those grounds, THE COURT (Sixth Chamber) hereby 1. Dismisses the appeals; 2. Orders Mr Bouma and Mr Beusmans each to pay their costs. Skouris Cunha Rodrigues Puissochet Schintgen Colneric Delivered in open court in Luxembourg on 29 April 2004. R. Grass V. Skouris Registrar President 1 – Language of the case: Dutch.