Opinion of the Advocate General — ECLI:EU:C:2005:214
Date: 2005-04-12
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;External relations;Fruit and vegetables;Commercial policy;Bananas
Procedure: Action for annulment;Action for damages - unfounded;Appeal - successful
Origin: United Kingdom;Italy

summary of their claims contained in the report for the hearing in those cases, that summary having been incorporated in the same terms in the contested judgment. 50 In the alternative, the Commission contends that the appeal should be dismissed as unfounded. 51 With regard to the first plea in law, the Commission maintains that neither the allocation of a reference quantity nor the holding of the corresponding import licences implies actual availability of bananas up to that quantity. The operator’s individual reference quantity constitutes the maximum quantity for which he may, during a given year, submit import licence applications in order to enjoy the rights recognised under the tariff quotas, without, however, having any certainty that that quantity will actually be available. 52 Confining itself to examination of the condition relating to the causal link between the conduct of which the Commission is accused and the damage alleged, the Court held, in paragraph 108 of the contested judgment, that, although the applicants did not import any bananas, that was due to difficulties of a commercial nature in finding suppliers, and even to their actual negligence, since they did not take the trouble to seek the desired quantities of bananas on the market, but not to the Commission’s conduct, and in particular its refusal to adopt transitional measures following the change from the 1993 import arrangements to those of 1999. Those considerations, which are also referred to in paragraphs 88 to 90, 95 and 96 of the contested judgment, have not been challenged in the appeal and are now definitive. In those circumstances, the alleged illegality of Regulation No 2362/98 is not relevant for the purpose of assessing the claims for compensation. 53 With regard to the second plea in law, the Commission contends that the Court of First Instance did no more than summarise the claims of the applicants in the light of all the arguments put forward by them, both in writing and orally. It maintains that it is apparent from those arguments that the cause of the damage alleged lies in the fact that the Commission did not take the measures which would have made it possible to remedy the consequences arising, in the applicants’ view, from the application of Regulation No 2362/98. From that point of view, it was perfectly reasonable to establish a link between the damage alleged and the letters at issue. The Commission also refers to the summary of the parties’ submissions contained in the report for the hearing and which the appellants have never challenged. 54 The Commission adds that, if the Court of First Instance had held that the claim for compensation for damage was based solely on the letters at issue, the legality of which the Court of First Instance had previously recognised, it would not have examined the causal link, since, in the absence of any unlawful conduct, the Commission’s liability would in any event have been excluded. Findings of the Court 55 Both the first and the second pleas in law put forward by the appellants in support of their appeal are based on the complaint that the Court of First Instance did not examine the legality of Regulation No 2362/98, in particular having regard to Regulation No 404/93, to the fundamental right to property, to the right to engage in free enterprise and to the principle of non‑discrimination. 56 In those circumstances, it must be noted that, in order to reject, in paragraph 108 of the contested judgment, the existence of a causal link between the conduct of which the Commission is accused and the damage alleged, the Court of First Instance could not confine itself to stating, in Case T‑93/00, that the cause of the damage related to the fact that ‘the applicants were unable to find suppliers willing to supply them with ACP bananas in the fourth quarter of 1999’ and, in Case T‑46/01, that the damage was ‘directly attributable to [the applicants’] lack of diligence’. 57 In order to exclude any liability on the part of the Commission, the Court of First Instance ought to have ascertained whether, over and above the difficulties encountered by the applicants in making full use of their reference quantities and import licences, the cause of the damage alleged by them did not indeed lie in the alleged illegality of Regulation No 2362/98 and, in particular, in the method of combined management of tariff quotas introduced by the Commission, which, they claimed, had then given rise directly to the commercial difficulties encountered by traditional third‑country operators, who in the end were obliged to import ACP bananas. 58 Such a determination by the Court of First Instance was required a fortiori since the alleged illegality of Regulation No 2362/98 was an essential part of the reasoning set out in their actions by the applicants, who sought to prove the adverse repercussions of that legislation for the business of undertakings traditionally importing third-country bananas, in the light of the difficulties encountered by them in obtaining supplies of ACP bananas. 59 Consequently, by omitting to examine whether the alleged illegality of Regulation No 2362/98 could be the cause of the damage alleged by the applicants, the Court of First Instance failed to state sufficient grounds for the contested judgment which must, for that reason, be set aside. 60 In accordance with the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice, if the Court quashes a decision of the Court of First Instance, it may itself give final judgment in the matter, where the state of the proceedings so permits, as it does in this case. Substance 61 According to settled case‑law, the Community’s non-contractual liability under the second paragraph of Article 288 EC is subject to the satisfaction of a set of conditions as regards the unlawfulness of the conduct alleged against the Community institution, the fact of damage and the existence of a causal link between the conduct of the institution and the damage complained of (see, inter alia, Joined Cases C-258/90 and C-259/90 Pesquerias De Bermeo and Naviera Laida v Commission [1992] ECR I‑2901, paragraph 42, and KYDEP v Council andCommission, cited above, paragraph 19). 62 In that regard, it is necessary to examine first the claim that the Commission’s conduct was unlawful. 63 As has already been stated in paragraph 55 of the present judgment, the appellants contest the legality of Regulation No 2362/98 on the basis of the three pleas in law put forward in support of their claim for annulment of the letters at issue. 64 By their first plea in law, the appellants submit that, by adopting Regulation No 2362/98, the Commission exceeded the limits of the powers conferred on it by Regulation No 404/93. 65 By their second plea in law, they submit that the impossibility of making full use of their reference quantities in order to import third‑country bananas derives solely from the allegedly unlawful and arbitrary decision by the Commission to combine the management of the third‑country tariff quotas and of the ACP tariff quota. By proceeding in that way, the Commission infringed their fundamental right to property and to engage in free enterprise. 66 By their third plea in law, the applicants submit that, by allowing operators importing traditional ACP bananas to use all their imports of such bananas and third‑country bananas in order to obtain import licences for third‑country bananas, the Commission created more favourable supply conditions for those operators than those provided for in the case of traditional third‑country banana operators. The first plea in law 67 The first plea in law is in two parts. 68 In the first place, the applicants complain that, in Article 4(2) of Regulation No 2362/98, the Commission chose as the reference period for the allocation of reference quantities to traditional operators the three‑year period from 1994 to 1996 during which Regulation No 404/93 was in force. The Commission thus maintained and consolidated the favourable position enjoyed, under the provisions of the General Agreement on Tariffs and Trade, by Category B operators before certain aspects of the trade arrangements with third countries laid down by Regulation No 404/93 were called in question in 1997 by the authorities of the World Trade Organisation. 69 In that regard, as the Advocate General observed in point 80 of his Opinion, in so far as the appellants assert that it was impossible for them to use the import licences for the reference quantities they had been granted, since they were unable to conclude contracts for the supply of ACP bananas, and impute that alleged malfunction to the method of combined management of the tariff quotas and to the merging of reference quantities introduced by Regulation No 2362/98, the criticisms made with regard to the detailed rules for prior allocation of reference quantities, which are unrelated to the use of import licences, must be rejected on account of their manifest irrelevance. 70 In the second place, the appellants take issue with the adoption by the Commission of a method of combined management of tariff quantities, which, together with the merging of reference quantities, served to strengthen the privileged position of importers of ACP bananas. 71 In their view, combined management of the tariff quotas reduces the opportunities to import third‑country bananas, whereas, by contrast, in the case of ACP banana operators, such opportunities are increased. 72 The Commission contends, on the contrary, that common management of the tariff quotas favours greater fluidity of trade and probable increased freedom for operators as compared with that ensured by the earlier arrangement, in particular by enabling importers of ACP bananas and importers of third‑country bananas to import bananas of either origin without distinction. 73 The Commission adds that non‑use of a certain quantity of ACP bananas in 1999 and 2000 does not prove that the new system of allocating quotas favours importers of ACP bananas. That circumstance could result from economic factors connected with market choices. 74 In that regard, it must be stated at the outset that, according to settled case-law, it is clear from the Treaty context in which Article 211 EC must be placed and also from practical requirements that the concept of implementation must be given a wide interpretation. Since only the Commission is in a position to keep track of agricultural market trends and to act quickly when necessary, the Council may confer on it wide powers in that sphere. Consequently, the limits of those powers must be determined by reference amongst other things to the essential general aims of the market organisation in question (see Case C‑239/01 Germany v Commission [2003] ECR I‑10333, paragraph 54, and the case‑law cited). 75 Thus, the Court has held that, in matters relating to agriculture, the Commission is authorised to adopt all the implementing measures which are necessary or appropriate for the implementation of the basic legislation, provided that they are not contrary to such legislation or to the implementing legislation adopted by the Council (see, in particular, Case 121/83 Zuckerfabrik Franken [1984] ECR 2039, paragraph 13; Case C‑478/93 Netherlands v Commission [1995] ECR I‑3081, paragraph 31; Case C-356/97 Molkereigenossenschaft Wiedergeltingen [2000] ECR I-5461, paragraph 24, and Germany v Commission, cited above, paragraph 55). 76 In this case, Regulation No 2362/98 was adopted by the Commission on the basis of Article 20 of Regulation No 404/93. That article authorises it to adopt provisions to apply Title IV of that regulation, including inter alia, according to Article 20(d) and (e), ‘any specific provisions needed to facilitate the switch from the import arrangements applying on and after 1 July 1993 to the present arrangements of … Title [IV of Regulation No 404/93]’ and ‘measures needed to ensure respect for obligations stemming from agreements concluded by the Community under Article [300] of the Treaty’. 77 With regard, more specifically, to the management of the tariff quotas referred to in Article 18(1) and (2) of Regulation No 404/93 and of imports of traditional ACP bananas, Regulation No 2362/98 also has as its legal basis Article 19(1) of Regulation No 404/93. That provision confers on the Commission the task of adopting the implementing arrangements required for the management of the tariff quotas, stipulating that the method chosen is to be ‘based on taking account of traditional trade flows’. 78 The appellants have not demonstrated, in the light of the case‑law mentioned in paragraph 75 of this judgment, that the method of managing tariff quotas adopted in Regulation No 2362/98 is contrary to the basic legislation implemented by that method. It is common ground that the method takes account of traditional trade flows and enables the quotas and imports of traditional ACP bananas, as referred to, respectively, in Article 18(1) and (2) and Article 16 of Regulation No 404/93, to be managed. 79 Moreover, the basic legislation does not preclude import licences from being managed without reference to the origin (ACP States or third countries) of the bananas. 80 With regard, more specifically, to the argument that the method of management in question strengthened the privileged position of importers of ACP bananas, that matter will be examined below, in the context of the analysis of the appellants’ third plea in law, alleging infringement of the principle of non‑discrimination. 81 In those circumstances, since it has not demonstrated that the Commission failed to have regard to the relevant basic legislation or that it manifestly exceeded the limits of the discretion in the choice of implementing arrangements conferred on it by the Council, the second part of the first plea in law must, subject to further examination of the argument referred to in the previous paragraph, be rejected. 82 Accordingly, the first plea in law put forward by the appellants in support of their actions must be rejected. The second plea in law 83 The appellants submit that the impossibility of their making full use of their reference quantities by obtaining import licences which could actually be used for the whole of those quantities is the result of the Commission’s decision to combine the management of the tariff quotas for third‑country bananas and ACP bananas. That decision in fact reduced to nil the opportunities available to importers of third‑country bananas to market the quantities of bananas allocated annually. 84 At the end of 1999, the tariff quota for ACP bananas was the only one not yet used up but was not in fact available. During 2000, when faced with the same difficulties in obtaining supplies of ACP bananas, the appellants gave up applying for licences to import such bananas. 85 In those circumstances, by adopting the method of combined management of the tariff quotas, the Commission infringed the fundamental right to property and the freedom to trade. 86 In that regard, it is settled case‑law that both the right to property and the freedom to pursue a trade or profession form part of the general principles of Community law. However, those principles do not constitute absolute prerogatives, but must be viewed in relation to their social function. Consequently, the exercise of the right to property and to pursue a trade or profession freely may be restricted, particularly in the context of a common organisation of the market, provided that those restrictions in fact correspond to objectives of general interest pursued by the Community and that they do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (see Case 44/79 Hauer [1979] ECR 3727, paragraph 32; Case 265/87 Schräder [1989] ECR 2237, paragraph 15, and Case 5/88 Wachauf [1989] ECR 2609, paragraphs 17 and 18). The compatibility of the method of combined management of tariff quotas with the requirements of the protection of the fundamental rights invoked by the appellants must be assessed in the light of those criteria. 87 Having regard to the claims made by the appellants, it should be pointed out from the outset that a reference quantity allocated to an operator in the context of a common organisation of the market represents the maximum quantity up to which that operator may, during a given year, submit applications for import licences in order to enjoy the rights attaching to a tariff quota. The allocation of reference quantities therefore does not guarantee either the availability of those quantities or the right for operators actually to export to the Community all the quantities allocated under the tariff quota. 88 With regard, first, to the right to property of importers of third-country bananas, the Court has already held that that right is not undermined by the introduction of the Community quota and the rules for its subdivision. No economic operator can claim a right to property in a market share which he held at a time before the establishment of a common organisation of a market, since such a market share constitutes only a momentary economic position exposed to the risks of changing circumstances (see Case C‑280/93 Germany v Council [1994] ECR I‑4973, paragraph 79, and Case C‑122/95 Germany v Council [1998] ECR I‑973, paragraph 77). 89 Nor can a trader claim that he has a vested right or even a legitimate expectation as to the maintenance of an existing situation which is capable of being altered by decisions taken by Community institutions in the exercise of their discretion (Case 52/81 Faust v Commission [1982] ECR 3745, paragraph 27; Case C‑350/88 Delacreand Others v Commission [1990] ECR I‑395, paragraphs 33 and 34, and Case C-280/93 Germany v Council, cited above, paragraph 89). That is a fortiori the case where the existing situation has to be altered in order to comply with the obligations arising from international agreements concluded by the Community. 90 With regard, secondly, to the alleged infringement of the freedom to pursue a trade or profession, it must be pointed out that the introduction of a method of combined management of the tariff quotas, such as that provided for by Regulation No 2362/98, is in fact such as to alter the competitive position of importers of third‑country bananas in so far as, under that method, all operators, without distinction, can import bananas of any origin whatsoever. However, although importers of third‑country bananas are thus in competition with importers of ACP bananas, they no longer suffer, as rightly pointed out by the Commission, the 30% reduction of their imports, provided for by the earlier arrangement, to the advantage of Category B importers of ACP bananas. Moreover, they are also free, under the new arrangement, to acquire ACP bananas. The difficulties alleged by the appellants in finding suppliers able to supply them with ACP bananas are not such as to affect the legality of an arrangement which specifically grants them the right to import such bananas under the Community quota. 91 In any event, it is clear from the Court’s case‑law that restrictions on the right to import third-country bananas resulting from the opening of any tariff quota and from the machinery for its subdivision are inherent in the establishment of a common organisation of the market designed to ensure that the objectives of Article 33 EC are safeguarded and that the Community’s international obligations are complied with. Such restrictions are therefore not such as to impair improperly the freedom of traditional traders in third-country bananas to pursue their trade or business (see Case C-280/93 Germany v Council, paragraphs 82 and 87, and Case C‑122/95 Germany v Council, paragraph 77). 92 In the light of the foregoing, the second plea in law put forward by the appellants in support of their appeal must be rejected. The third plea in law 93 The appellants submit that, by giving importers of ACP bananas the right to use their imports both of such bananas and of third‑country bananas for the determination of their reference quantities and the issue of import licences for third‑country bananas, Regulation No 2362/98 provided for those operators supply conditions that are more faviourable than those enjoyed by traditional third‑country banana importers. 94 By providing for a method of combined management of the tariff quotas applicable to third countries and to ACP States and for the merging of reference quantities, the Commission thus infringed the principle of non‑discrimination. 95 In that regard, it is sufficient to note that, in so far as all economic operators are entitled, within the limits of their reference quantities, to import from any origin whatsoever and are thus placed in an identical situation, the principle of non‑discrimination specifically precludes them from being treated differently when import licences are allocated. 96 Accordingly, the third plea in law put forward by the appellants in support of their actions must also be rejected. 97 It follows from all the foregoing considerations than none of the pleas of illegality put forward against Regulation No 2362/98 can be accepted. 98 Since, therefore, the first condition to which the Community’s non‑contractual liability within the meaning of the second paragraph of Article 288 EC is subject is not fulfilled, the actions must be dismissed in their entirety, without there being any need to examine whether the other conditions governing that liability are satisfied, namely the fact of the damage alleged and the existence of a causal link between that damage and the conduct of which the institution concerned is accused. Costs 99 Under Article 69(2) of the Rules of Procedure, which applies to appeals by virtue of Article 118, 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 Commission has applied for costs against the appellants and the latter have been unsuccessful in their pleas, they must be ordered to pay the costs. On those grounds, the Court (Second Chamber) hereby: 1. Sets aside the judgment of the Court of First Instance of the European Communities of 10 April 2003 in Joined Cases T‑93/00 and T‑46/01 Alessandrini and Others v Commission; 2. Dismisses the applications brought before the Court of First Instance of the European Communities in CasesT‑93/00 and T‑46/01; 3. Orders Alessandrini Srl, Anello Gino di Anello Luigi & C. Snc, Arpigi SpA, Bestfruit Srl, Co-Frutta SpA, Co-Frutta Soc. coop. arl, Dal Bello Sife Srl, Frigofrutta Srl, Garletti Snc and London Fruit Ltd to pay the costs incurred both at first instance and in connection with the appeal. [Signatures] * Language of the case: Italian.