Opinion of the Advocate General — ECLI:EU:C:1999:234
Date: 1999-05-06
Language of the case: German
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;Appeal - unfounded;Action for damages - unfounded;Appeal - successful
Origin: Germany

Summary of the Judgment 
1. Appeals — Introduction of new pleas in law in the course of the proceedings — Where 
a plea, first raised in the reply, is indissolubly linked to a plea rejected by the Court of 
First Instance — Inadmissible 
(Rules of Procedure of the Court of Justice, Arts 42(2) and 118) 
2. Procedure — Introduction of new pleas in law in the course of the proceedings — 
Action for damages — Submissions changing the basis on which the Community could 
be held liable — May not be put forward 
(Rules of Procedure of the Court of Justice, Art. 42(2); Rules of Procedure of the Court 
of First Instance, Art. 48(2)) 
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3. Community law — Principles — Rights of the defence — Observance of the rights of 
the defence during administrative procedures — Limits 
4. Community law — Principles — Fundamental rights — Where the Court confirms the 
validity of a legislative act — Where the validity ofthat measure is contested at the time 
of its implementation — Not permissible 
5. Community law — Principles — Protection of legitimate expectations — Limits — 
Amendment of the rules relating to the common organisation of certain markets — 
Discretion of the institutions — Extent of damage alleged by a trader — No bearing on 
the question whether that trader had a legitimate expectation 
(Council Regulation No 404/93) 
6. Ν on-contractual liability — Conditions — Unlawfulness — Damage — Causal 
link — Where one of those conditions is not satisfied — Action for damages must be 
rejected in its entirety 
(EC Treaty, Art. 215, second para, (now Art. 288, second para., EC)) 
7. Agriculture — Common organisation of the markets — Bananas — Regulation 
No 404/93 — 'Trader' — Defined in sufficient detail — Delegation of implementing 
powers to the Commission — Valid 
(EC Treaty, Art. 145 (now Art. 202 EC); Council Regulation No 404/93) 
1. In appeal proceedings, a plea in law is 
inadmissible where it is raised for the 
first time at the stage of the reply and is 
based on an element which is inescap­
ably and directly linked to a plea in law 
raised by the appellant before the 
Court of First Instance but not put 
forward again on appeal. To admit 
such a plea would be tantamount to 
allowing the appellant to challenge for 
the first time at the stage of the reply 
the rejection by the Court of First 
Instance of a plea which it had raised 
before that court, whereas there was 
nothing to prevent it from putting 
forward that plea in its application to 
the Court of Justice. 
2. In the context of an action for damages 
based on the Community's liability in 
respect of an unlawful act, a submis­
sion which changes the very basis on 
which the Community could be held 
liable — the plea of liability for a 
lawful legislative act — must be regar­
ded as constituting a new plea in law 
which cannot be introduced in the 
course of proceedings. The fact that 
such a plea is also based on Article 215 
of the Treaty (now Article 288 EC) 
does not make it any less a new plea in 
law. 
3. In the context of a procedure for the 
adoption of a Community act based on 
an article of the Treaty, the only 
obligations of consultation incumbent 
on the Community legislature are those 
laid down in the article in question. No 
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right to be heard prior to adoption of a 
legislative act can be deduced from the 
fourth paragraph of Article 173 of the 
Treaty (now, after amendment, the 
fourth paragraph of Article 230 EC); 
nor can the case-law providing for a 
right to be heard in the context of 
certain measures of direct and indivi­
dual concern to the applicants be 
extended to apply to the context of a 
Community legislative procedure cul­
minating in the enactment of legisla­
tion involving a choice of economic 
policy and applying to the generality of 
the traders concerned. 
4. Although respect for fundamental 
rights is an obligation not only on the 
Community legislature but also on the 
authorities responsible for implement­
ing the legislative acts adopted, a 
finding by the Court of Justice that a 
legislative act is valid in terms of 
fundamental rights covers also the case 
of the specific and individual applica­
tion of such an act,, so that the validity 
of the act cannot therefore be called 
into question when it is applied in 
specific cases. 
5. Although the principle of protection of 
legitimate expectations is one of the 
fundamental principles of the Commu­
nity, traders are not justified in having 
a legitimate expectation that an exist­
ing situation which is capable of being 
altered by the Community institutions 
in the exercise of their discretionary 
power will be maintained, particularly 
in an area such as that of the common 
organisation of the markets, the objec­
tive of which involves constant adjust­
ment to reflect changes in economic 
circumstances. The extent of the loss 
alleged by a trader and attributed by 
that trader to the implementation of a 
regulation adopted in such a context 
cannot in any event cast doubt on a 
finding that the conduct of the compe­
tent authority had not given rise to a 
legitimate expectation on the part of 
the parties concerned that a particular 
situation would be maintained or that 
particular measures would be adopted. 
6. Non-contractual liability on the part of 
the Community under the second para­
graph of Article 215 of the Treaty (now 
the second paragraph of Article 288 
EC) is subject to a number of condi­
tions relating to the illegality of the 
conduct alleged against the Commu­
nity institutions, actual damage and the 
existence of a causal link between the 
conduct of the institution and the 
damage complained of. If any one of 
those conditions is not satisfied, the 
entire action must be dismissed and it is 
unnecessary to consider the other con­
ditions for non-contractual liability on 
the part of the Community. 
7. In adopting Regulation No 404/93 on 
the common organisation of the mar-
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SUMMARY — CASE C-104/97 Ρ 
ket in bananas, the Council defined in 
sufficient detail the term 'operator' for 
the purposes of that Regulation, so that 
it was able validly to delegate to the 
Commission the powers required for 
implementing the rules thus laid down, 
as it is authorised to do under 
Article 145 of the Treaty (now 
Article 202 EC). 
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